1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 298 of 2002 Calcutta Municipal Corporation -Vs- M/s. Shiraj Golden Restaurant Firm & Anr. For the Appellant : Ms. Sreyashee Biswas (Amicus Curiae) Ms. Puja Goswami For the O.P. No. 1 : Mr. Zohaib Rauf Mr. Ajitesh Pandey For the O.P. No. 2 : Mr. Soham Banerjee (Amicus Curiae) Heard on : 16.05.2024, 20.09.2024 Judgment on : 06.05.2025 Ananya Bandyopadhyay, J.:- 1. This appeal is preferred against judgment and order of acquittal dated 17.10.2001 passed by the Learned Senior Municipal and Metropolitan Magistrate, Calcutta in connection with the Case No. 4D of 2000, whereby acquitted the opposite parties of the charge under Section 16(1) a (i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. 2. The prosecution case precisely stated one Dr. Chinmoy Kumar Bose, Food Inspector on 16.03.2000 at about 4.00 p.m. found the accused/opposite party no. 2/ Jamil Akhtar having stored “Ghee” for preparation of food items 2 for sale for human consumption from a shop running the name and style of M/s. Shiraj Golden Restaurant at 56, Park Street, Calcutta-700 017. The Food Inspector/complainant gave him a notice in compliance with the direction given in Rule 12 of the Prevention of Food Adulteration Rules and purchased 450 gms of “Ghee” on payment of Rs.76.50P. Thereafter, he prepared three samples accordingly to the procedure prescribed in the Prevention of Food Adulteration Act and Rules, sealed them and sent one of them along with Memorandum in Form No. VII to Public Analyst and the remaining two samples to the Local (Health) Authority for future reference. The Public Analyst, upon analysis, declared the sample of “Ghee” adulterated. 3. Dr. Chimony Kumar Bose, the Food Inspector was a public servant within the meaning of Section of 21 of the Indian Penal Code and in such capacity and in discharge of his official duties lodged the complaint as aforesaid representing the Calcutta Municipal Corporation. 4. Subsequently, charges were framed under Sections 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act against the opposite parties. 5. The Learned Amicus Curiae representing the appellant submitted as follows:- i. An unqualified sale of any article of food to a Food Inspector for analysis for the purpose of Prevention of Food Adulteration Act is a sale within the meaning of Section 2(xiii) of the said Act and if on analysis such article of food is found to be adulterated the seller is 3 guilty under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and as such the impugned order of acquittal is liable to be quashed. ii. In the present case, the article of food which was found to be adulterated was found stored inside the store room of a hotel and such articles being sold to the Food Inspector for analysis and having found adulterated the opposite parties are guilty for an offence punishable under Section 16(1)(a)(i) of the Prevention of the Food Adulteration Act. iii. Section16(1)(a)(i) clearly prohibited storing of adulterated article of food. iv. In view of unchallenged evidence of Food Inspector that he found the article of food in question viz. “Ghee” stored and used for preparing of food such as “biriyani” at the restaurant and same being found to be adulterated the order of acquittal. v. Under Section 10(2) of the Prevention of Food Adulteration Act, a Food Inspector was empowered to enter and inspect any place where any article of Food is manufactured or store for sale or stored for the manufacture of any other article of food for sale or exposed for sale or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis and in the present case the opposite party not having disputed that the sample of article of food in question was taken from the kitchen of the hotel where the food is being manufactured and such article of food 4 being. Found to be adulterated the impugned order of acquittal is liable to be set aside. 6. The Learned Advocate representing the opposite parties submitted that the Learned Trial Court after assessing the evidence on record both oral and documentary rightly passed the impugned judgment and order of acquittal. 7. In the case of Rupak Kumar v. State of Bihar1 the Hon’ble Supreme Court held the following :- 9. In the present case, according to the prosecution, the appellant, a Superintendent of Jail, had stored rice and haldi and, therefore, his act comes within the mischief of Sections 7 and 16 of the Act. In view of the aforesaid, what needs to be decided is as to whether the expression “store” as used in Section 7 and Section 16 of the Act would mean storage simpliciter or storage for sale. We have referred to the provisions of Section 7, Section 10 and Section 16 of the Act and from their conjoint reading, it will appear that the Act is intended to prohibit and penalise the sale of any adulterated article of food. In our opinion, the term “store” shall take colour from the context and the collocation in which it occurs in Sections 7 and 16 of the Act. Applying the aforesaid principle, we are of the opinion, that “storage” of an adulterated article of food other than for sale does not come within the mischief of Section 16 of the Act. In view of the authoritative pronouncement of this Court in MCD v. Laxmi Narain Tandon [(1976) 1 SCC 546 : 1976 SCC (Cri) 76] , this submission does not need further elaboration. In the said case it has been held as follows: (SCC p. 550, para 14) “14. From a conjoint reading of the abovereferred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale, or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms ‘store’ and ‘distribute’ 1(2014) 4 SCC 277 5 take their colour from the context and the collocation of words in which they occur in Sections 7 and 16. ‘Storage’ or ‘distribution’ of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section.” (emphasis in original) 10. In the case in hand, it is not the allegation that the appellant had stored haldi and rice for sale. Therefore, in our opinion, the allegations made do not constitute any offence and, hence, the prosecution of the appellant for an offence under Section 16(1)(a) of the Act shall be an abuse of process of court. 8. The Hon’ble Supreme Court held the following in State of Orissa v. K. Rajeshwar Rao2:- 2. The sole question that emerges for consideration is whether it is necessary that the respondent should be the owner of the shop for being prosecuted for the offences under Section 16(1)(a)(i) read with Section 7(i) of the Act. Sub-section (1) of Section 20 of the Act reads thus: “20. Cognizance and trial of offences.— (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority.” (Proviso is not necessary. Hence omitted.) Section 2 of the Act defines ‘adulterated’ that if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser who is to purchase, the article is adulterated. If the quality or variety of the articles falls below the prescribed standard or its constituents are present in quantities not within the prescribed 2(1992) 1 SCC 365 6 limits of variability, it is also adulterated. It would, therefore, be clear that the word ‘adulterated’ was used widely. The food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice, or contains any foreign substance in excess of its prescribed limit, so as to affect injuriously, the nature, substance or quality thereof. In view of the finding of the courts below that cumin (jira) was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act. What Section 20 envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order by the Central Government or the State Government or a local authority. Therefore, grant of sanction to prosecute for an offence under the Act is a condition precedent. The relevant criteria under Section 20(1) is the competence of the officer to grant the sanction for the offence. It does not postulate whether the person who sold should be the owner or a servant or a person on behalf of the owner (son of the owner). Section 7 prohibits manufacture, sale of certain articles of food. No ‘person’ shall himself or any person on his behalf manufacture for sale, or store or sell or distribute (i) any adulterated food, etc. The phrase “himself or any person on his behalf” obviously included any other person like servant, son, father, or agent irrespective of the relationship legal or jural etc. The person who so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution. 3. It is not in dispute that the officer who granted the sanction in this case is the competent officer as a delegate on behalf of the local authority. Undoubtedly, a valid sanction is a condition precedent. If no valid sanction was granted by the authority, certainly the 7 accused is entitled to the benefit of statutory infraction, though it is technical and be acquitted of the offence. 4. In Sarjoo Prasad v. State of U.P. [(1961) 3 SCR 324 : AIR 1961 SC 631 : (1961) 1 Cri LJ 747] it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated. This Court held that Section 7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under Section 16 without proof of mens rea. This Court repelled the argument that the legislature could not have intended, having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold. The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them. There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate. In the interest of the public health, the Act was enacted prohibiting all persons from selling adulterated food. In the absence of any provision, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food. This view was reiterated in Ibrahim Haji Moideen v. Food Inspector [(1969) 3 SCC 901 : 1970 SCC (Cri) 167 : (1976) 2 FAC 66 (SC)] . This Court held that for the purpose of conviction under charge on which A-2 was tried, it was immaterial whether he was an agent or a partner of A-1. Once it is proved that he sold the adulterated articles, he was liable to be convicted under Section 16(1) read with Section 7 of the Act. The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention. 8 5. The Act is a welfare legislation to prevent health hazards by consuming adulterated food. The mens rea is not an essential ingredient. It is a social evil and the Act prohibits commission of the offences under the Act. The essential ingredient is sale to the purchaser by the vendor. It is not material to establish the capacity of the person vis-a-vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. As stated earlier the sanctioning authority has to consider the material placed before it whether the offence of adulteration of food was committed and punishable under the Act. Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid. It is not necessary for the sanctioning authority to consider that the person who sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf. 9. In K. Krishna Iyer v. State of Kerala3the Hon’ble Supreme Court held the following:- 5. Considering the nature of the article sold, we have no doubt in our mind that the ‘ice-stick’ was edible ice and sold as frozen ice in the shape of a stick. It admittedly contained sugar and colouring as is evident from the report of the Central Food Laboratory. It was, therefore, required to conform to the standards prescribed in Item A.07.04 of Appendix ‘B’ and since according to the report of the Public Analyst as also the Central Food Laboratory the article contained an artificial sweetener, saccharin, it did not conform to the standard laid down in the entry which specifically prohibits the use of any artificial sweetener. 3(1993) 3 SCC 226 9 xxx 7. It would be seen from the above provision that in order to maintain a conviction under the said provision, the article of food which is adulterated should fall either in one of the sub-clauses (e) to (l) of clause (i-a) of Section 2 or should contain an adulterant which is injurious to health. The adulterated article of food sold in this case admittedly does not fall in any of the sub-clauses (e) to (l) of Section 2(i-a). According to the report of Central Food Laboratory, it also does not contain any adulterant declared as “injurious to health”. Thus, on the face of it, it is not possible to hold that the appellant had committed an offence punishable under Section 16(1-A) of the Act and the conviction of the appellant for an offence under Section 16(1- A) of the Act cannot be sustained. 8. The article of food sold by the appellant, however, has been found by the Central Food Laboratory to contain an artificial sweetener, the use whereof in such article of food is prohibited. It, therefore, does not conform to the standards prescribed in Item A.07.04 of Appendix ‘B’. Section 16(1)(a)(i) of the Act makes a person liable to punishment if whether by himself or by any other person on his behalf, he inter alia, manufactures for sale, or stores or sells any article of food which is adulterated within the meaning of sub-clause (m) of clause (i-a) of Section 2 of the Act. Section 2(i-a)(m) reads thus: “2. (i-a) ‘adulterated’ — an article of food shall be deemed to be adulterated— (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:” 9. Keeping in view the fact that the article of food, ‘ice-stick’ sold by the appellant did not conform to the standard prescribed for it in Appendix ‘B’ and contained an artificial sweetener — saccharin, it is obvious that the article of food sold by the appellant was adulterated 10 within the meaning of Section 2(i-a)(m) of the Act and the same would, therefore, be punishable under Section 16(1)(a)(i) of the Act. 10. The relevant portion of the judgment and order dated 17.10.2001 passed by the Learned Senior Municipal Magistrate, Metropolitan Magistrate and Judicial Magistrate, 1st Class, Calcutta in Case No. 4D/2000 is replicated as follows:- “On careful perusal of the case of Md. Nabijan, reported in 2000 FAJ 175, I find that the prosecution failed to produce any evidence suggesting to hold – the finished product of food sold to the customers did not contain the alleged adulterated article of food. Accordingly, His Lordship the Hon’ble Justice Debi Prasad Sengupta was pleased to hold that by no stretch of imagination it can be said that the article of food in question was stored for the purpose of sale. The word “Store”- used in Section 7 of the P.F.A. Act means – “store for sale and consequently storing of any article for the purpose other than for sale would not constitute an offence under Sec. 16(1)(a)(i) of the P.F.A. Ac.t In the premises, the prosecution did not produce any evidence to hold that the finished product of food sold to the customer did not contain the alleged adulterated “Ghee”. So, a mere statement that the Ghee in question was stored in the business premises of M/S. Shiraj Golden Restaurant for preparation of food-items for sale for human consumption does not appear convincing me to hold to be acceptable. Accordingly, I am not in agreement with the Ld. Municipal Prosecutor that the Food Inspector Dr. C.K. Bose did not wrong in taking the sample of Ghee in question for analysis form the store of business premises of the said Restaurant. His approach against the non-applicability of the ratio of Judgment of the said Md. Nabijan’s Case, reported in 2000 FAJ 175, bears no considerable force. It is squarely applicable to the facts and circumstances of this case. 11 The stand taken by the Ld. Defence Counsel that the Food Inspector Dr. C.K. Bose did wrong in taking the sample of ‘Ghee’ kept in the store of the business premises of the accused-firm for preparation of food-items for all the employees carried weight and conviction under Section 16(1)(a)(i) read with Section 7 of the P.F.A. Act, 1954, cannot be sustained. Prosecution has failed to bring home the offence charged against the accused. Accordingly, the result of this proceeding, I hold, would be ended in acquittal.” 11. The perusal of the evidence on record as well as the observation of the Learned Trial Court, it appeared that the prosecution failed to prove the seizure of the “Ghee”. Moreover, it further failed to prove the food product being “Ghee” whether it was stored for sale or for food product or for personal consumption. The container in which the “Ghee” was stored was not seized. Apart from PW-1 there was no corroborative evidence with regard to the seizure of the article. None appeared to prove that the seized “Ghee” was sent for forensic examination, there was proper sampling of the said food items. Apart from the complaint of the complainant none appeared to adduce witness with regard to the sale or purchase or consumption of the “Ghee”, claimed to be adulterated. The complainant/ PW-1 did not verify the description of the accused business from the demand register maintained by the Licence Department erstwhile C.M.C. There was no document produced to show that the sample phials were kept in the office almirah of the complainant from 16.03.2000 to 18.03.2000. PW-1 could not remember the time of filling up the sample coupon and attesting the signature of a sample witness. PW-2 and PW-3 in unison stated that they had not sent the forwarding letter to Dr. Sujit Kr. Ghosh. The Copy of the Public Analyst’s 12 report was not duly served upon the appellant. There had been severe procedural lapses on the part of the prosecution and the Learned Trial Court justifiably acquitted the appellant and this Court is not inclined to interfere with the same. 12. In view of the above discussions, the instant criminal appeal being CRA 298 of 2002 is dismissed. 13. There is no order as to costs. 14. I record my appreciation for the able assistance rendered by Learned Advocate Mr. Soham Banerjee as Amicus Curiae appearing for the opposite party no.2, in disposing of this appeal. 15. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 16. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)