JUDGMENT Onkar Singh, J.
1. This State appeal has been referred to the Full Bench on a reference made by one of us that the decision of a single Judge of this Court reported in Nagar Mahapalika, Varanasi v. Panna Lal is incorrect and requires reconsideration.
2. The respondent Babu Lal carried on business in foodgrains etc. in Dhammaur in district Sultanpur. On 26-11-1969 D. p. Singh Food Inspector visited Dhammaur market at about 3.30 P. M. and found the respondent selling and exposing for sale pulses etc. without any licence as required under Rule 50 of the Prevention of Food Adulteration Rules (hereinafter to be referred as the rules), The respondent was found selling Kesari Dal sale of which is prohibited under Rule 44-A of the said rules read with Uttar Pradesh Government Notification No. 1632/XVI-II-1511/61 dated 20-5-1961 The Food Inspector purchased 600 grams of Kesari Dal from the respondent for 60 Paise in the presence of two witnesses, Sri Tung Nath Tewari and Sri Ram Sumer. He divided the sample into three parts as required by law. A notice in Form VI informing the respondent that the sample of Kesari Dal purchased from him was taken as a sample to be sent to the Public Analyst to Govt. of Uttar Pradesh for analysis, was given to him as required Under Section 11 of the Prevention of Food Adulteration Act (herein after to be referred as the Act) and Rule 12 of the rules aforesaid before the witnesses mentioned above. A receipt for the price of Kesari Dal paid to the respondent was obtained from him bearing his signature. One of the samples was delivered to the respondent on the spot and another sample was sent to the Public Analyst for analysis and report. A copy of the memorandum (Form VII) along with the specimen impression of the seal was also sent to the Public Analyst. The third phial of the sample was deposited in the office of the District Medical Officer of Health, Sultan-pur, for being kept in safe custody. The Public Analyst reported that the sample contained 100% Dal Kesari Lathyrus Sativus. He further opined that Lathyrus Sativus contains toxic principles which render the sample injurious for health.
3. A complaint was filed by the Food Inspector, Sultanpur under Section 7(v) and Section 16(1)(a) of the Act which was forwarded to the Sub-Divisional Magistrate, Sultanpur for necessary action by the Medical Officer of Health, Sultanpur. The respondent was accordingly prosecuted for having committed an offence punishable Under Sections 7/16 of the Act.
4. The respondent pleaded not guilty and denied the prosecution case, His defence was that he had neither sold nor any sample of Kesari Dal was taken from his shop. He further stated that neither any sample was taken from his shop nor sent to the Public Analyst for analysis. He even denied having owned any shop in Dhammaur market and stated that Kesari Dal is not an article of food According to him, he has been implicated falsely due to enmity with the Food Inspector and the witnesses were deposing against him under the influence of the Food Inspector.
5. The prosecution examined three witnesses, P. W. 1 Sri D. P. Singh, Food Inspector. P. W. 2 Sri Tung Nath Tewari and P. W. 3 Sri Ram Sumer.
6. The respondent also examined two witnesses, D. W. 1 Sheo Prasad and D W, 2 Ram Manorath.
7. The learned Magistrate, relying on the decision of a learned single Judge of this Court reported in Nagar Mahapalika, Varanasi v. Panna Lal (1965 (1) Cri LJ 537) (All) (supra) held that the respondent was not guilty of the offence Under Sections 7/16 of the Act and acquitted him.
8. The State of Uttar Pradesh filed an appeal against the order of acquittal and it was contended by the learned Govt. Advocate relying on the two Full Bench decisions, one of the Kerala High Court reported in Govinda Pillai v. Padmanabha Pillai and the other of the Bombay High Court reported in Dhirajlal Valji v. Ram Chandra Janglaji that Kesari Dal is an article of food within the meaning of the Act and its possession for the purpose of sale is prohibited by Rule 44-A of the rules made Under Section 23 of the Act and is punishable Under Section 7(v) read with Section 16(1)(a)(ii) of the Act. He further contended that the ban on the sale of Kesari Dal was total and the word 'sale' as defined in the Act is not limited to sale of any article of food for human consumption only. It was further contended that the Act gives a special definition of "sale" in Section 2(xiii) which specifically includes within its ambit sale for analysis.
9-10. The appeal was first heard by a single Judge of this Court who, in view of the two Full Bench decisions referred to above, felt that the decision in Nagar Mahapalika. Varanasi v. Panna Lal 1965 (1) Cri LJ 537 (All) (supra). required reconsideration and therefore referred the appeal to a larger Bench for decision. That is how the matter has come before the Full Bench.
11. In Nagar Mahapalika, Varanasi v. Panna Lal (Supra) 1965 (1) Cri LJ 537(All) Capoor J. held that Dal Kesari is not ordinarily used for human consumption and hence it is not included within the definition of "food" in Section 2(v). It is used as cattle fodder. Its use as food by human beings in time of distress cannot lead to the conclusion that it is ordinarily used by human beings as food. He further held that one of the essential ingredients of sale is sale for human consumption and where the sale is effected for a purpose other than human consumption, there is no contravention of any of the provisions of the Act or of the rules framed thereunder. In defining "sale" in Section 2(xiii) of the Act, the Legislature has expressly included a sale for human consumption and in order to see as to whether a particular transaction is a sale or not the purpose for which the sale has been effected must be looked into He also held that mere storing of Kesari Dal is not prohibited by the Notification under Rule 44-A except when it is for the purpose of sale (Sic) Dal Kesari to a Food Inspector lor purposes of analysis and not for human consumption, no offence is committed u/s, 16 of the Act.
12. The learned Government Advocate has assailed the aforesaid findings and has urged that Kesari Dal is an article of food within the meaning of the Act and its storage or possession for the purpose of sale is prohibited by Rule 44-A of the rules made Under Section 23 of the Act. He has further contended that the ban on sale of Kesari Dal is total and the word "sale" as defined in the Act is not limitted to sale of any article of food for human consumption only. He has further contended that the Act gives a special definition of "sale" in Section 2(xiii) which specifically includes within its ambit a sale for analysis.
13. The learned Counsel for the respondent has canvassed in support of the decision in Nagar Mahapalika, Varanasi v. Panna Lal 1965 (1) Cri LJ 537 (All) (supra).
14. Before we discuss the merits of the respective contentions of the parties, it is necessary to refer to some of the relevant provisions of the Act. Section 2(v) defines 'food' and reads as follows :
2(v) 'Food' means any article used as food or drink for human consumption other than drugs and water and includes--
(a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and
(b) any flavouring matter or condiments :
15. Then we come to the definition of 'sale' given in Section 2(xiii) of the Act which is as under :
2(xiii) "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article.
16. Next we turn to Section 7 which creates the offence with which the respondent was charged and Section 16 which punishes that offence. Section 7 reads as follows :
7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute :
(i) any adulterated food ;
(ii) any misbranded food ;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence ;
(iv) any article of food the sale of which is for the time being prohibited by Food (Health) authority in the interests of public health ; or
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.
Section 16 so far as it is relevant reads as follows :
16. (1) 11 any person--
(a) whether by himself or by any other person on his behalf imports into India or manfactures for gale or stores, sells or distributes any article of food--
(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interests of public health ;
(ii) other than an article of food referred to in Sub-clause (1) in contravention of any of the provisions of this Act or of any rule made thereunder ; or ....
17. We may now refer to Rule 44-A which is made only in reference to Kesari Dal. It provides :
No person in any State shall, with effect from such date as the State Government concerned may by notification in the official Gazette specify in that behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale--
(a) Kesari gram (Lathyrus Sativus) and its products ;
(b) Kesari dal (Lathrus Sativus) and its products,
(c) Kesari dal flour (Lathyrus Sativus) and its products,
(d) a mixture of Kesari gram (Lathyrus sativus) and a Bengal-grams (Cicer Arietinum) or any other gram,
(e) a mixtrue of Kesari dal (Lathyrus Sativus) and Bengal-gram dal (Cicer Arietinum) or any other dal,
(f) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal-gram (Cicer Arietinum) flour or any other flour. Explanation -- The equivalents of Kesari gram in some of the Indian languages are as follows :
Hindi-Kesari or Khisari, Sanskrit-Triputi Bengali, Malayalam, Tamil and OriyaKhesari, Telugu-Lamka, Gujrati and Marathi-Lakh, Assamees-Teora Dal.
Rule 44-A was brought into force in the State of Uttar Pradesh by the State Government notification No. 1632/XVI-II-1511-61 dated 20-5-1961. The notification runs as below :
In pursuance of the provisions contained in Rule 44-A of the Prevention of Food Adulteration Rules, 1955 the Governor of U. P. is pleased to notify with effect from the date of publication of this notification in the U. P. Gazette that no person in this State shall sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale :
(a) Kesari gram (Lathyrus sativus) (and its products.
(b) Kesari Dal (Lathyrus Sativus) and its products.
(c) Kesari Dal Flour (Lathyrus Sativus) and its product.
(d) A mixture of Kesari gram (Lathyrus Sativus) and Bengal gram (Cicer Arjetinum) or any other gram.
(e) A mixture of Kesari Dal (Lathyrus Sativus) and Bangal gram Dal (Cicer Arietinum) flour or any other flour.
Explanation. The equivalents of Kesari gram in some of the Indian languages are as follows :
Hindi-Kesari or Khisari, Sanskrit-Tri-puti, Bengali, Malaylam, and Oria-Khe-sari, Telugu-Anka, Gujrati and Marathi-Lakh.
dated June 8, 1961.
18. The first point for our determination is whether Kesari Dal is an article of food or not. It has been contended by the learned Government Advocate that Kesari Dal is an article of food within the meaning of the Act and he has placed reliance on two Full Bench decisions, one of the Kerala High Court reported in P. Govinda Pillaiv.V. G. N. Padmanabha Pillai and others (supra) and the other of the Bombay High Court reported in Dhirajlal Valji Kotak v. Ram Chandra Janglaji Gujar (supra). He has also referred to the statements of P. W. 1 Shri D. P. Singh Food Inspector and P. W. 3 Shri Ram Burner. The Food Inspector did not state in so many words that Kesari Dal is an article of food and is edible but in answer to the question in cross examination he showed his ignorance if Kesari Dal was an "Akhadya Padaratha" meaning thereby not an article of Food. However, Shri Ram Sumer clearly stated that Kesari Dal is an article of food and he has himself eaten with the Food Inspector for taking sample the respondent had sold Kesari Dal to one person in his presence, (sic) The respondent also examined two witnesses, Sheo Prasad D. W. 1 and Ram Manorath Singh D. W. 2. D. W. 1 Sheo Prasad stated that he knew the respondent who owned a shop in Dham-maur bazar. He, however, stated that the respondent did not sell Kesari Dal but deals in grains. In cross-examination he stated that he was present on the shop of the respondent when the sample was taken by the Food Inspector. D. W. 2 Ram Manorath Singh also stated that the respondent has a grain shop in Dham-maur bazar and Kesari Dal is not sold in his shop. On 26th November, 1969 when the Food Inspector inspected his shop, he was present but no sample of Kesari Dal was taken. It is clear from the evidence in this case that the respondent has a grain shop in Dhammaur market and a sample of Kesari Dal was taken by the Food Inspector on 26/11/1969. The defence of the respondent that he did not sell the sample of Kesari Dal to the Food Inspector appears to be false and even the learned Magistrate has held that Dal Kesari was being exposed for sale, sample of which was taken by the Food Inspector. Thus there is no substance in the plea taken by the respondent that he did not sell the sample of Kesari Dal. No evidence has been led by the respondent that Kesari Dal is used as cattle fodder. In his statement Under Section 342, Cr. P, C. the respondent only stated that Kesari Dal is not a "Khadya Padartha" meaning thereby that it is not an article of food. It was only during the course of arguments that it was contended on his behalf that Kesari Dal is not an article of food and is used as cattle fodder.
19. In Nagar Mahapalika, Varanasi v. Panna Lal 1965 (1) Cri LJ 537 (All) (supra) the learned single Judge had given a positive finding that Kesari Dal was not ordinarily used for human consumption. In the instant case there is undoubtedly evidence led by the prosecution that Kesari Dal is an article of food. In Govinda Pillai v. Padmanabha Pillai (1965 (1) Cri LJ 446 (Ker) (FB)) (supra) it was held that any article used as food or drink for human consumption (other than drugs and water) and any article which ordinarily enters into or is used in the composition or preparation of human food is food whether or not the particular stock of the article is intended for human consumption or for the preparation of human food is of no moment. It is nough if the article in general is used as food for human consumption, or is used in the preparation of human food, and every particular stock of that article becomes food, no matter that it is intended for some other use. A particular stock of rice or milk, for example, does not cease to be food because it is intended, not for human consumption but for feeding animals ; and so long as Kesari Dal in general is an article used as food for human consumption or is ordinarily used in the preparation of human food, the particular stocks which the accused persons were holding would be food as defined by the Act, no matter that the particular stocks were intended for sale as fodder, It was further observed that it is common knowledge that Kesari Dal is used as an article of human diet in many parts of the country and we do not think that evidence is required to prove that it is an article of food any more than evidence would be required to prove that rice or milk is an article of food, Modi says in his text book of Medical Jurisprudence (Thirteenth edition, at page 705) that Kesari Dal is a variety of pulse used as an article of diet by the common people in Sind. Bihar, Uttar Pradesh and some parts of Madhya Bharat and Madhya Pradesh. It is, therefore, an article of food throughout the country and it is not necessary to show that it is used as human food in the particular locality where the alleged offence is committed, or by the particular persons in respect of whom it is committed. But, were that necessary, we might say that it is common knowledge that, in this State, Kesari Dal is used in the preparation of sambar, vadai and other articles of human food although it is perhaps not cooked and eaten by itself. Therefore it clearly comes within Clause (a) of the inclusive part of the definition of "food" if not in the body of the definition itself. This decision was followed in the Full Bench of Dhirajlal Valji v. Ram Chandra Janglaji (1970 Cri LJ 1062) (Bom) (FB) (supra) and the learned Judges of the Bombay High Court expressed their complete agreement with the above statement of law Their Lordships of the Bombay High Court referred to a number of other cases and held that Kesari Dal is an article of food within the definition of "food" as defined in Section 2(v) of the Act. In the instant case we have also the evidence of P. W. 3 Ram Sumer that Kesari Dal is an article used as food for human consumption. We, therefore, hold that Cri. L. J. Kesari Dal is an article of food and the view of Capoor J. that it is not an article of food is incorrect.
20. The next point for our consideration is whether the ban on sale of Kesari Dal in Rule 44-A and the Government Notification issued thereunder is total or there is any scope for any exception or exemption. In Nagar Mahapalika, Varanasi v. Panna Lal. 1965 (1) Cri LJ 537 (All) the learned single Judge referred to the notification issued by the U. P. Government and held that by virtue of that notification mere storing of Kesari Dal was not prohibited and, therefore, the respondent cannot be penalised merely for storing it. By virtue of the notification referred to above no person could sell or offer or expose for sale or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for selling Kesari Dal. He then referred to the definition of "sale" as given in the Act and after quoting the definition proceeded to hold as follows :
One of the essential ingredients of sale is sale for human consumption or use. It has already been seen that the respondent did not sell Kesari Dal for human consumption and he cannot, therefore, be held to have contravened any of the provisions of the Act or of the rules framed thereunder.
The learned Government Advocate has contended that the finding of the learned single Judge that one of the essential ingredients of sale is sale for human consumption or use is incorrect and he has placed reliance on another decision of the same Judge reported in Nagar Mahapalika, Varanasiv.Smt. Sudheswari Devi . After quoting the definition of "sale" the learned Judge observed as follows :
The aforesaid definition is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. It is. therefore, manifest that the sale of a sample of ghee to the Food Inspector was a sale under the provisions of the Act. A dealer cannot, therefore escape the clutches of law by merely describing an article of food at the time of its sale as 'Akhadya'.
21. The definition of sale in Section 2(xiii) of the Act was the subject-matter of consideration in the two Full Bench cases referred to above. In P. Govinda Pillai v. V. Padmanabha Pillai 1965 (1) Cri LJ 446 (Ker) (FB)) (supra) it was held as follows :
In the body of the definition of the word "sale" which tells us what an Act sale means, there is a qualification that the sale must be of an article of food and that it must be for human consumption or use. But, in the inclusive part of the definition which tells us what an Act sale includes, there appears the qualification that the sale must be of such article, namely, an article of food, but not the qualification that it must be for human consumption or use, it is, therefore, clear that, for the fictional sale created by the inclusive part of the definition, it is not necessary that the sale should be for human consumption or use. The result would be that whereas an actual sale of adulterated food otherwise than for human consumption or use would be no offence, a fictional sale, namely, a mere agreement, offer, exposure or possession for sale or an attempted sale of such food would be an offence even if the intended sale was not for human consumption or use.
In any view of the matter there can be little doubt that the rule prohibits the possession of Kesari Dal for the purpose of sale irrespective of whether or not the sale is for human consumption or use." The same view was taken in the other Full Bench case of Dhirajlal Valji v. Ram Chandra Janglaji 1970 Cri LJ 1062 (Bom) (FB)) (supra). After analysing the definition of sale, their Lordships held as follows :
The definition is no doubt tautologous definition in so far as it defines "sale" to mean "sale of any article of food ..." But when we come to consider the several ingredients which we have analysed above, it would be found that the draftsman intended to exhaust every category of the sale and to include in it every ingredient normally required in a sale. Thus in the first category, namely, the subject of the sale, he has used the words " any article of food" without exception. Therefore, the definition includes any and every article of food. We shall presently refer to the definition of food. In prescribing the manner of sale, the draftsman has also enumerated every mode in which a sale is possible by referring the three categories (i) whether for cash, or (ii) on credit, or (iii) by way of exchange. We cannot conceive of a sale which is not included in one of these three categories, Lastly, in dealing with the purpose of the sale or the use of the article, the draftsman has used four expressions : (i) by wholesale or retail, that is to say, to a dealer dealing in any article for food, (ii) for human consumption, that is to say, to a consumer, (iii) for other uses (we will presently advert to this category), and lastly (iv) for analysis.
22. The Lordships overruled the contention on behalf of the accused that the words "for human consumption" are paramount in the definition and so to say, create a condition precedent to the existence or establishment of sale. So read, counsel urged, the definition says that "sale" means the sale of any article of food for human consumption ; and since "for human consumption" is a qualification or a condition precedent to there being a sale, it must necessarily follow that wherever the word "sale" is used in the substantive provisions, it means only the sale for human consumption. While rejecting this argument their Lordships observed as under :
We have shown above that the words "for human consumption or use" are only two categories of the purpose of a sale, the other two being the sale to a wholesale dealer or a retail dealer and the sale for the purposes of analysis. So viewed, the words "for human consumption" do not assume the importance which counsel endows them with, nor do we think that the words "for human consumption" govern the words "any article of food" but govern the words "the sale of any article of food." It must be borne in mind that what is being defined is "sale" and not "any article of food.
The definition itself, moreover, gives an indication that sale is not exclusively confined to the sale of articles of food for human consumption and that sales for other purposes would also come within the ambit of the definition, For instance, definition also includes a sale for analysis where a Food Inspector takes a sample under his powers Under Sections 10 and 11. It is now settled law that a sale for the purposes of obtaining a sample to a Food Inspector under the provisions of Sections 10 and 11 of the Act is also a sale within the meaning of the definition.
23. Their Lordships then considered the definition of food which also uses the words "any article used as food or drink for human consumption" and held that the effect of these two definitions read together would, therefore, be as follows :
The court must see first of all whether it is established that there was a sale of any article of food. In determining that the Court has to be satisfied that it is an article used as food or drink for human consumption. But once the sale of any article of food is established the purpose for which it is sold, need not necessarily be only for human consumption or use. It may be any one or more of the purposes mentioned in the definition of sale viz. to a dealer or for use other than human consumption or lor analysis. Thus, even taking into account the definition of "food" in Section 2(v), we do not think that we can accept the contention that the definition of sale is limited to sale of an article of food only for human consumption.
24. with the greatest respect we are in complete agreement with the above statement of law. We therefore, hold that the view of the learned single Judge of this Court in Nagar Mahapalika, Varanasiv.Panna Lal (1965 (1) Cri LJ 537) (All) (supra) that one of the essential ingredients of sale is sale for human consumption or use is not correct.
25. The next point for determination is whether the ban on sale of Kesari Dal under Rule 44-A was total. It was contended on behalf of the respondent that Rule 44-A does not impose an absolute bar on all dealings with Kesari Dal. Rule 44-A was the subject-matter of consideration by the same two Full Bench cases P. Govinda Pillai v. G. N. Padmanabha Pillai 1965 (1) Cri LJ 446 (Ker) (FB) and Dhiraj Lal Valji v. Ram Chandra Jaglaji (1970 Cri LJ 1062) (Bom) (supra). In Govinda Pillai's case (supra) it was held In any view of the matter there can be little doubt that the rule prohibits the possession of Kesari Dal for the purpose of sale, under any description whatsoever --the evidence that some of the accused used to write, "C. F." to mean cattle food, in their cash bills for the sale of the Dal is, therefore, of no account-- irrespective of whether or not the sale is for human consumption or use.
In Dhiraj Lal's case (supra) it was held that the ban on the sale of Kesari Dal in Rule 44-A is total and there is no scope for any exception or exemption and that it is no defence to a prosecution under the Act to say that the accused did not intend to use Kesari Dal as food or that he never intended to sell it as food.
26. We, therefore, hold that the ban on the sale of Kesari Dal under Rule 44-A and the notification issued thereunder is total and the finding of the learned single Judge that since the respondent did not sell Kesari Dal for human consumption, he cannot be held to have contravened any of the provisions of the Act or of the rule framed thereunder is erroneous.
27. The next question is whether a sale of any article of food for analysis under the provisions of the Act is also a sale within the definition of "sale" and also includes a sale for analysis where the Food Inspector takes a sample in his powers Under Sections 10 and 11 of the Act. In Mangal Das v. State of Maharashtra it was held as follows :
The Act gives a special definition of sale in Section 2(xiii) which specifically includes within its ambit a sale for analysis and a sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.
Where a person sells an article of food for analysis, his act constitutes a "sale" within the meaning of Section 2(xiii) of the Act. By its very definition a sale is not, any the less a sale because it is for analysis ; it need not necessarily be for human consumption or for human use. The purchase of a sample by a Food Inspector is not for his personal consumption or use but it is for the purpose of detecting if the article of food is adulterated. No proof that the sample of Kesari Dal to the Food Inspector was sold as an article of food is necessary. As pointed out earlier, the same learned Judge has in another case of Nagar Mahapalika, Varanasi v. Smt. Sudheshwari Devi 1966 Cri LJ 113 (All) (supra) taken the same view and has held that the definition of "sale" is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. We have, therefore, no hesitation in holding that the earlier view expressed by Capoor J. that where a shop-keeper sells Kesari Dal to a Food Inspector for purposes of analysis and not for human consumption there is no sale and as such no offence is committed Under Section 16 of the Act is incorrect. In our opinion the case of Nagar Mahapalika, Varanasi v. Panna Lai 1965 (1) Cri LJ 537 (All) (supra) was incorrectly decided and is overruled,
28. The learned Counsel for the respondent has contended that it was necessary for the prosecution to establish that the respondent had the mens rea to commit the offence Under Sections 7/16 of the Act.It is urged that having regard to the definitions and the provisions of Sections 7 and 16 of the Act, the Court must take into account the intention or the mens rea of the respondent. We do not find any substance in the above contention. In Mangaldas v. State of Maharashtra one Mangaldas, a wholesale dealer, had sold turmeric powder admittedly used for human consumption to one Daryanomal. The turmeric powder was found to be adulterated and both Mangaldas and Daryanomal were prosecuted. While Mangaldas admitted that he had sold and despatched a bag containing turmeric powder, he contended that what was sent was not turmeric powder used for human consumption but was "Bhandare" which is used for religious purposes or for applying to the forehead. The contention was rejected by the courts below and in the appeal before the Supreme Court counsel for Mangaldas urged that it was necessary to establish that the appellant had the mens rea to commit the offence. The Supreme Court referred to its own earlier decision in Hariprasada Rao v. The State and held "what was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind. The proposition there stated is well established. Here Section 19(1) of the Act clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit an offence Under Section 7(1) or 16(1)(a) of the Act." The decision in Mangal Das's case (supra), therefore, negatives any contention that mens rea or intention of the accused has to be taken into account in considering offence Under Section 7 read with Section 16 of the Act This decision was followed in Dhiraj-lal v. Ramchandra, (1970 Cri LJ 1062) (Bom) (FB) (Supra). The learned Counsel for the respondent, however, referred to a recent decision of the Supreme Court reported in Shah Ashu v. State of Maharashtra where it was held that it is true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act. It is enough if an article, of adulterated food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what was stored or sold was "food". Where circumstances raise a genuine doubt on the question whether what was kept by a seller was 'food' at all, this must be resolved by evidence in the case. Hence, where Section 7 prohibits manufacture, sale or storage or distribution of certain types of "food", it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject-matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise on this question. We may also refer to another case of the Supreme Court reported in Andhra Pradesh Grain and Seed Merchants Association v. Union of India (UOI) in this connection. The Supreme Court was considering the validity of certain sections of the Act and so also the rules upon a complaint that it takes away the rights under Articles 14, 19(1)(g) and 20(3) of the Constitution. An argument was advanced before the Supreme Court that even though an article is purchased not as an article of food, but for use otherwise, the vendor will be deemed guilty and an example of coconut oil which is an article of food in some parts of the country and not others was pressed in aid While repelling that submission, the following observations upon which the respondent relies in his case, were made by the Supreme Court :
We are again unable to accept the argument that under the Act even when an article is purchased not as an article of food, but for use otherwise, the vendor will be deemed guilty if the article does not conform to the prescribed standards, or is as an article of food adulterated or mis-branded. Counsel said that coconut oil is used in the State of Kerala as a cooking medium, and sale of adulterated coconut oil may in Kerala be an offence Under Section 16, but in other parts of the country where coconut oil is not used as a cooking medium and is used as a component of hair oil or for other purposes, it amounts to imposing an unreasonable restriction to penalise the vendor who sells coconut oil knowing that the purchaser is not buying it as a cooking medium. But there are no articles which are used as food only in one part, and are not at all used as food in another part of the Country. Even coconut oil is used as a cooking medium by certain sections of the people in parts of India other than Kerala. In any event it is always open to a person selling an article capable of being used as an article of food as well as for other purpose to inform the purchaser by clear notice that the article sold or supplied is not intended to be used as an article of food. What is penalised by Section 16(1) is importation, manufacture for sale, or storage, sale or distribution of an article of food. If what is imported or stored, sold or distributed is not an article of food, evidently Section 16 can have no application.
(underlining is ours)
29. It is contended on behalf of the respondent that the judgment and the law as found by the Full Bench in Dhiraj Lal v. Ram Chandra 1970 Cri LJ 1062 (Bom) (FB) (supra) is completely shaken and impliedly overruled by the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association v. Union of India (UOI) and Shah Ashu Jaiwant v. State of Maharashtra . Relying upon the portion underlined above it is urged that it is open to a person charged under the provisions of Section 16(1) of the Act to point out that he had given notice to the customers that what was being sold was not meant for human consumption. In other words, it was not an article of food and was not sold as such. It is submitted that this position will also avail whenever there is a charge of sale of an article in contravention of Rule 44-A. In our opinion there is no merit in the above contention. These arguments were also considered in the case of Municipal Council Akola v. Shripat Ganeshlal 1973 Cri LJ 1490 (Bom). The learned Judge who decided the case held as follows :
Such an approach ex facie is neither proper nor sound upon the principles applicable in such matters. The paragraph itself indicates that what the court was considering was a submission with respect to matters of sale of an article of food which does not conform to the prescribed standards or an article of food adulterated or misbranded. The court was not, therefore, called upon nor was deciding a case where the sale of an article of food is in contravention of the provisions of the Act or the rules framed under the Act. The observations in terms do not apply to each and every case that may arise under the provisions of Section 16(1).
30. Besides it was further held :
Section 16(1)(a) itself is in two parts and it has something to do with the other provisions of the Act and also the scheme of preventing dealings in food adulteration and articles of food. By Sub-clause (i) of Section 16(1)(a), whenever any person imports into India or manufactures for sale or stores, sells or distributes an article of food which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of public health, a penalty is imposed. By Sub-clause (ii) of Section 16(1)(a), distinct provision is made. Penalty is attached to similar activities carried on in respect of an article of food other than referred to in Sub-clause (i) of that section, in contravention of any of the provisions of the Act or of the rules made thereunder. Independent offence, is, therefore, contemplated. The difference between Sub-clause (i) and Sub-clause (ii) of Section 16(1)(a) is plain ; and a trial under the one need not be confused with the trial under the other. Defence available under the first part may not be available under the second part. It follows therefore that whenever contravention of Rule 44-A is alleged by the prosecution, it is the case that falls Under Section 16(1)(a)(ii) of the Act. Once therefore contravention of a rule which may totally prohibit a sale of an article of food is established the offence is complete. By mere breach the person is rendered blameworthy. The prohibition being total the consequence is absolute. Such a category and eventuality was not before the Supreme Court.
We are in complete agreement with the statement of' law as enunciated above and the observations of the Supreme Court in the two rulings referred to above can be of little assistance to the respondent who has been put for trial for contravening the provisions of Rule 44-A. What the rule prohibited was a complete ban on the sale of Kesari Dal in the interest of the general public as it is injurious to public health. Besides, in the instant case the respondent nowhere contended that the Kesari Dal was meant for cattle fodder.
His defence was a total denial of the prosecution case including the sale to the food Inspector.
31. On a consideration of the provisions of the law and the case law cited before us, we arrive at the following conclusions :
1. That Kesari Dal is an article of food as defined in Section 2(v) of the Act.
2. That the word "sale" as defined in the Act is not limited to sale of any article of food for human consumption only.
3. That the Act gives a special definition of "sale" in Section 2(xiii) which specifically includes within its ambit a sale for analysis,
4. That the ban on the sale of Kesari Dal and its storage and possession for purposes of sale in Rule 44-A is total and there is no scope for any exception or exemption.
5. That it is no defence to a prosecution under the Act to say :
(a) that the accused did not intended to use Kesari Dal as food, or
(b) that he never intended to sell it as food.
6. That intention or mens rea as such is totally irrelevant to the applicability of Rule 44-A and so is the question of the use to which an article is put.
32. Upon this view, we allow the appeal and set aside the acquittal of the respondent Under Section 7/16 of the Act and convict him Under Section 7(v) read with Section 16(1)(a)(ii) of the Act and Rule 44-A of the Rules. As regards the sentence, it must be governed by the proviso to Section 16(1). It was pointed out by their Lordships of the Supreme Court in M.V. Joshi v. M.U. Shimpi that the offence committed under the Act is a serious one calling for a deterrent punishment and in most of the cases imprisonment will be a suitable sentence. However, in the present case as the offence was committed more than six and a half years ago and the respondent is a first offender, we sentence him to pay a fine of Rs. 1000/- (one thousand) within a period of two months or in default of payment of fine to undergo six months R.I.
S.K. Kaul, J.
33. I concur D.N. Jha, J.
34. I agree