Radheshyam Vs State of Kerala and Another

@JUDGMENTTAG-ORDER

K.A. Mohamed Shafi, J.@mdashThe Petitioner in all these petitions is the same person and these petitions are filed to quash the prosecution proceedings launched against the Petitioner as manufacturer, on the basis of the complaint filed by the Food Inspector alleging offences punishable under Sections 2(ia)(a)(ix)(c), 7(m), 16(1)(a)(i) and 17 of the Prevention of Food Adulteration Act and Rule 5 Appendix B.A. 17.07 of the Prevention of Food Adulteration Rules.

2. Crl. M.C. No. 3517/97 is filed to quash the entire proceedings in C.C. 132/95 on the file of the Judicial First Class Magistrate''s Court, Ambalapuzha against the Petitioner. Crl. M.C. No. 256/98 is filed to quash the entire proceedings in C.C. 491/95 on the file of the Judicial First Class Magistrate''s Court, Karunagappally against the Petitioner. Crl. M.C. No. 1526/98 is filed to quash the entire proceedings in S.T. No. 40/95 on the file of the Chief Judicial Magistrate''s Court, Kottayam. Since the contentions raised in all these petitions are identical, they are heard and disposed of by this common order.

3. The Food Inspectors of Haripad Circle, Karunagappally Circle and the Kottayam Municipality filed the respective complaints alleging offences punishable under Sections 2(ia)(a)(ix)(c), 7(ii), 16(1)(a)(i) and 17 of the Prevention of Food Adulteration Act and Rule 5 Appendix B.A. 17.07 of the Prevention of Food Adulteration Rules alleging that the olive oil purchased by them from the respective sellers, manufactured and marketed by the Petitioner herein, for the purpose of analysis was, found to be adulterated and therefore, the 1 Petitioner who is the manufacturer of that food article is iable for the offences alleged in these cases,

4. The Petitioner has contended that the olive oil manufactured and marketed by them is a drug intended for external use for massaging as per the valid licence issued by the competent authority under the provisions of the Drug Control Act and it is completely outside the scope of the provisions of the Prevention of Food Adulteration Act and Rules. He has also contended that the article was not intended for human consumption and the label in the containers in which the article was sold clearly depicted that it is an Ayurvedic medicine manufactured under the Drug Licence and intended only for massage. Therefore, according to him, absolutely no case is made out against the Petitioner in the complaint since the oil manufactured and marketed by the Petitioner does not come within the definition of ''Food'' u/s 2(v) of the P.F.A. Act. Hence he seeks to quash the entire proceedings initiated against him by the Food Inspectors without any jurisdiction and beyond the scope of the P.F.A. Act and Rules.

5. The complainant-Food Inspectors who are arrayed as the 2nd Respondent in these Crl. M.Cs. have contended that the olive oil manufactured and marketed by the Petitioner is a food article under the provisions of Section 2(v) of the P.F.A. Act. According to them, olive oil is being used as food article by a large section of the people and merely because of the fact that the Petitioner has obtained a licence under the Drug Control Act to manufacture and market the oil, will not take away the food article from the purview of the definition ''Food'' u/s 2(v) of the P.F.A. Act, absolving the Petitioner from the provisions of the P.F.A. Act. Accoding to them, the provisions of Drugs and Cosmetics Act are only in addition to the provisions of the P.F.A. Act and not in supersession of derogatory to the provisions of the P.F.A. Act and as such the Petitioner is liable under the provisions of the P.F.A. Act as well as the provisions of the Drug Control Act in case he has infringed any of the provisions of those Acts.

6. Section 2(v) of the P.F.A. Act defines ''food'' which 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,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.

It is clear from the above definition of ''food'' that any article which is used as food or drink for human consumption or ordinarily enters into of is used in the composition or preparation of human food other than drugs and water is food u/s 2(v) of the Act.

7. The counsel for the 2nd Respondent-Food Inspectors submitted that it is common knowledge that a vast section of the people are using olive oil as food article for preparation of human food. Therefore, the Petitioner cannot contend that merely because of the fact that they marketed the olive oil after obtaining licence under the Drug Control Act with the label as Ayurvedic medicine intended for massage and therefore, it does not come within the ambit of ''food'' as prescribed u/s 2(v) of the P.F.A. Act. But the Petitioner has vehemently contended that since the definition of ''food'' u/s 2(v) of the P.F.A. Act specifically excludes drugs, olive oil in question manufactured and marketed by the Petitioner as per the valid licence obtained by them under the provisions of the Drug Control Act, by no stretch of imagination can be construed as a food article under the provisions of the P.F.A. Act.

8. In support of the contention that as the olive oil is ordinarily used for preparation of human food, it will come within the definition of ''food'' provided u/s 2(v) of the P.F.A. Act, the learned Counsel for the 2nd Respondent has relied upon several decisions of various High Court and the Supreme Court. In the decision in Municipal Board, Kanpur Vs. Janki Prasad and Another, , a Full Bench of the Allahabad High Court considered whether Linseed oil is food within Section 2(v)(a) of the P.F.A. Act and observed as follows:

So far as our country is concerned linseed oil as such is not used for food but it cannot be gain said that it is used as a cooking medium in several parts of the country. In those parts it can be said to be used in the composition or preparation of human food....

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It is, however, contended that it is not so used in Uttar Pradesh and in major parts of the country. That it is not so used in Uttar Pradesh is immaterial because the Act is, as we have already said above, an all India Act, and if linseed oil can be considered to be food in areas where it is used as a cooking medium or for other food purposes it would be deemed to be ''food'' in Uttar Pradesh also. It cannot be readily assumed that though the word ''food'' is comprehensive enough to include linseed oil in its ambit in some of the Southern States it cannot so include it in Uttar Pradesh. The same word in a statute cannot have two different and diametrically opposite meaning in two different local areas governed by the same statute.

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In our opinion it is in the sense of non-exceptional or usual that the word ''ordinarily'' has been used in Section 2(v) of the Act. The word ''ordinarily'' does not mean ''primarily'' nor does it mean ''universally''. It does not also mean ''generally''. By the use of the word ''ordinarily'' the legislature intended to provide that if an article enters into or is used in the composition or preparation of human food even by some people usually and not as exception it would be deemed to be ''food''.

(3) * * * *

(4) It was contended that the main use to which linseed oil is put is the preparation of paints and varnishes. An article may have more than one use and it may ordinarily be used for more than one purpose. The mere fact that linseed oil is also used for making varnishes and paints would not make it any the less an article of food as defined in Section 2(v) of the Act.

9. In the decision in Public Prosecutor v. Palanisami Nadar 1995 Cri. L.J. 309 a Single Judge of the Madras High Court has observed as follows:

As already mentioned, as long as the article sold by him or stored by him for sale remains an article which ordinarily enters into the preparation of human food, it is irrelevant to consider whether it was sold to a particular customer on the distinct understanding that he should not use it for preparing food, but should give it only to animals. The crux of the offence is in the sale of food (as defined in the Act) and it is irrelevant to consider whether there was any separate understanding between the buyer and the seller at the time of sale that the article sold should be used for some purpose other than food. The fact that it was agreed between the seller and the customer that an adultered article sold was to be used for a purpose other than human consumption will not at all enter into the consideration whether an offence, as defined in the Act, has been made out or not. That definition of sale in Section 2(xiii) of the Act is very wide and covers not merely a sale for human consumption, but a sale for analysis as in this case, exposing for sale or having in possession for sale, will all be brought within the scope of the definition of ''sale''.

In that case the Madras High Court negatived the contention of the Appellant that the adultered asafoetida was sold not for human consumption and found him guilty of the offence punishable under the Prevention of Food Adulteration Act and Rules.

10. In the decision in Public Prosecutor Vs. V. Nagabhushanam, , a Division Bench of the A.P. High Court held that an article to be food need not be used as such throughout the country and it need not be proved that the article was sold as article of food so as to arttact the offences punishable under Sections 16(1)(a), 7(i) and 2(xiii) of the P.F.A. Act. The Division Bench of the A.P. High Court in that judgment has observed as follows:

(15) As noticed earlier, the learned Magistrate has acquitted the Respondent on two grounds: first, that the coconut oil is not used as an article of food in this part of the country and secondly, that the prosecution had failed to prove that the coconut oil had been sold to the Food Inspector as an article of food.

(16) In our considered view, both the grounds are untenable. As regards the first ground, there is nothing in the Act which posits that an article of food may be adulterated with impunity provided it is not used as food throughout the length and breadth of the country. On the contrary, there is every indication in the Act that it seeks to protect the public by preventing adulteration of any article or substance which is used as food in any part of the country. It is immaterial whether a given article or substance is not used at all as food in a particular region, or is used only by a section of the people in a given region.

In that case the Division Bench has found that coconut oil which is used extensively in Kerala as a cooking medium comes within the definition of food though it is not used as an edible oil either in Andhra area, or Telangana area.

11. In the decision in Subbayyan Muthukomaran v. State of Kerala AIR 1968 Ker 330, a Division Bench of this Court has held that compounded misky asafoetida is food within the definition of Section 2(v) of the P.F.A. Act. The Division Bench has observed as follows:

9. It was also contended by the learned Counsel for the accused that it was not enough that the Articlc sold is an article of food; but it must have been sold as an article of food. It was submitted that there was evidence in this case that compounded asafoetida can be used as a drug, and that there was no evidence that the sales were made as articles of food. These are all contentions contrary to the clear provisions of the Act. That compounded asafoetida is ''food'' as defined in Section 2(v) of the Act admits of no doubt; and it was also not disputed. Then the only question is whether the accused sold it, and if they did, they are guilty u/s 16(1)(a)(i) of the Act read with Section 7.

12. In the decision in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, , a five Judges Bench of the Supreme Court has held that the definition of food in Section 2(v) of the Act is wide enough to take in supari. The Supreme Court has observed as follows:

In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guido or semantic tyrant, oblivious of the social context subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines ''food'' very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is common place knowledge ihat the word ''food'' is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish by men for taste and nourishment? It is. And so it is food. Without tarrying further on this unusual argument we hold that supari is food within the meaning of Section 2(v) of the Act.

13. In the decision in State of Kerala Vs. Rajappan Nair, , a Division Bench of this Court has held that sale of food article for any purpose will attract the provisions of the Food Adulteration Act and Rules. In that case the Division Bench has held that turmeric powder is food for the purpose of the Act and sale of turmeric powder not as food but for pooja attracts the offences punishable under Sections 7(1) and 16(1)(a)(i) of the P.F.A. Act. In that judgment the Division Bench has observed as follows:

4. ...The term ''ordinarily'' has been the subject-matter of judicial interpretation and it is now settled that the term means not mainly or regularly but usually and normally. It is an admitted fact that turmeric powder is used in the composition of human food and is therefore food.

15. ...What is prohibited is sale in an adultered condition of an article which is food under the Act, and not its sale as food. An article is food if it satisfies the definition of food under the Act. That a standard has been fixed for an article and its sale is prohibited under the rules framed under the Act are also indications that it is food. It is the normal use and not its occasional use that decides whether an article is food. If it is food under the Act, it is immaterial whether it is not used as such in particular areas or its use as food is confined to particular class of persons. An article which is food does not lose its character as food by the fact that it is also used or sold for other purposes. If an article is food it is not a defence in a trial under the Act that there was an agreement between the vendor and the customer that it would not be used as food. Putting a label on the container that the article is sold for other purposes and not as food is no guarantee that an article which is food will not be used as such by the purchaser and it will not absolve the vendor from liability under the Act for sale of adultered food.

14. The above rulings of the various High Courts, this Court and the apex Court lay down the following dicta. If an article satisfies the definition of food given u/s 2(v) of the P.F.A. Act, it is food. The normal use of the article and not its occasional use decides the fact whether the article is food or not. If an article is found to be food, the fact that its use as food is confined to particular areas or particular group or class of persons is immaterial. An article of food will not lose its character as food due to thr fact that it is also sold or used for some other purposes. If an article is food, the contention that there was an agreement between the vendor and the purchaser that it will not be used as food and it will be used for some other purpose, is no defence in a prosecution unaer the provisions of the P.F.A. Act. The definition of sale in Section 2(xiii) of the Act covers not only the sale for human consumption but exhibition or exposure of the article or possession of the same for sale including a sale for analysis. The fact that the container contained a label depicting that the article is sold for other purposes and not as food for human consumption will not guarantee that the article sold which is food will not be used as such by the purchaser and it will not absolve the vendor from his liability under the P.F A. Act for the sale of the adulterated food. Therefore, the fact that the Petitioner sold the olive oil in question in containers with the label with inscription as narrated in page 2 of the complaint Annexure A will not absolve the Petitioner from his liability under the provisions of the P.F.A. Act, if it is found that the olive oil did not conform to the standard fixed under the provisions of the P.F.A. Act and Rules, framed thereunder.

15. The only other question to be considered is whether the Petitioner has manufactured and marketed the article as a drug which is excluded from the purview of food as defined u/s 2(v) of the P.F.A. Act. It is clear from the definition of ''food'' in Section 2(v) that drugs are specifically excluded from the definition of food. The question whether the Petitioner has manufactured and marketed the olive oil in question on the basis of a valid licence issued by the appropriate authority under the Drug Control Act is a matter to be decided by the trial Court after adducing evidence. The question whether the olive oil in question is a drug and not a food article coming within the ambti of Section 2(v) of the Act is also a matter of evidence.

16. The argument advanced by the counsel for the Respondents that the various decisions referred to above though have not considered the question whether an article manufactured and marketed under a valid licence issued by the competent authority under the Drugs and Cosmetics Act will come within the ambit of food as defined u/s 2(v) of P.F.A. Act if that article ordinarily enters into or is used in the composition or preparation of human food, the principles laid down in those decisions are applicable to the facts of this case also and therefore, the Petitioner cannot contend that the food article manufactured and marketed by him as a drug is not amenable to the provisions of the P.F.A, Act, need not be considered in these Crl. M.Cs. and it is a matter for consideration during the trial of the case.

17. Likewise the contentions raised by the counsel for the Respondents that Section 2 of the Drugs and Cosmetics Act stipulates that the provisions of that Act shall be in addition to and not in derogation of the Dangerous Drugs Act, 1930 and any other law for the time being in force, that the provisions of that Act are supplementary and not derogatory or contrary to the provisions of the P.F.A. Act and as such in case of contravention of the provisions of the P.F.A. Act, the Petitioner will be liable for the offence punishable under the P.F.A. Act, as well as for the contravention of the provisions of the Drugs and Cosmetics Act, if any, also need not be considered in these M.Cs.

18. The contention of the Petitioner that as the article manufactured and marketed by him not being a food article and it is intended only for external use for massage, he is not liable for the offence punishable under the Prevention of Food Adulteration Act and as such there is absolutely no scope or a very remote possibility of his being found guilty after the trial in this case and therefore his conviction in this case being bleak, the prosecution launched against him should be quashed by this Court by invoking the provisions of Section 482 of the Code of Criminal Procedure., is not sustainable. The contention that the article manufactured and marketed by the Petitioner is not an article of food and it is a drug exempted from the definition of food u/s 2(v) of the P.F.A. Act is a matter which is to be established on evidence by the Petitioner. The allegations made in the complaints filed by the 2nd Respondent in the M.Cs. against the Petitioner are sufficient to prima facie bring out the offence alleged against the Petitioner in these cases. The contentions raised by the Petitioner are to be considered by the trial Court and on the basis of those contentions raised by him the prosecution launched against the Petitioner cannot be quashed at the threshold by invoking the powers of this Court u/s 482 of the Code of Criminal Procedure. Therefore, I find absolutely no ground to quash the prosecution launched against the Petitioner in these cases.

Hence these Crl. M.Cs. are dismissed. But the Petitioner can raise all the contentions raised by him in these Crl.M.Cs. before the trial Court.