# [1976] 1 S.C.R. 327

- **Citation:** [1976] 1 S.C.R. 327
- **Court:** Supreme Court of India
- **Decided:** 1975-08-18
- **Case number:** Criminal Appeal No. 119 of 1971
- **Bench:** M. H. Beg, P. N. Bhagwati, R. S. Sarkar!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1976-1-s-c-r-327-6503
- **Pages:** 6

## Headnote

327
Preve111io11 of Food Ad11lteratio11 Act 1964-Sec. 2(1) (f) 7(i)
16(i)(a)~
Food wlierlu·r nuJst be for h111nan co11sun1ptio11-Nature of proof about food
being for h11111a11
consun1ptio11~Afcns rea whether 11eccssary-I'rese11ce of Ille
lt'itness.
The appellant \V<is charged un<lcr. section 16(1) (a) (i) of the Prevention of
Food Adulteration Act, for contravening section 2( l) (f) an<l 7 (i) of the said
Act. The Food Inspector purchased black Tils from the appellant. P.W. I
Tambe was unable to give either the name of the shop or approxin1ate date
modity by the Food Inspector from the appellant and taking of the sample.
Tambe \Vas . unable to give either the name of the shop or approx!.mate date
or time of his visit.
He was also unable to say .whether the shop of the appellant
\Vas a foodgrains shop.
1'ambe \Vas unable to remember '\\''ho made the cash
memo and whether any one signed the cash memo in his presence.
Tan1bc
could
remember. nothing
material and he \Vas
non-committa1.
rfhe .Food
Inspector in his depos~tion stated that the signature of Tambe \Vas taken on the
cash memo but not on the packets although in the examination in chief he
stated that Tambe had signed the sealed packets also. The seals of the packets
were found broken due to what the Inspector described as "handling". He
admitted that no signafure of the witness was obtained on the counterfoil of the
cash memo. He stated th.Itt black Tils can be used for human consumpticn and
further stated that it is not correct to say that it is used only for Puj'a.
The
appellant denied the presence of Tambe and asserted that he clearly told the
Food Inspector that the blnck Tils in his shop \Vere meant for Puja and not for
human consumption.
·
The Pres!.dency MagislrJ.1..tc afler examining the whole evidence held that
the version of the appellant that there was a talk about the actual purpose for
'vhich the Til seeds at his shoo were meant was more probable because it \vas
supported by '"h~t the appellant had written on the cash men10 when he sold
the Til seeds to the Food Inspector. The ~Iagistrate also held that the Analyst's.
report sho\\'cd that the black Til seeds were full of cocoons visible to the naked
eye and nobody could be expected to purchase them for consumption as food.
However. the Jlvfagistrate held that the purpose for which the Til seeds were kept
\Vas quite immaterial.
The appellant \Vas convicted by the ~fagistrate and the conviction \Vas con·
firmed by High Court. On appeal to this Court by Special Leave it was contended by the appellant.
( ll That black Tils were sold to the Food Inspector specifically for the
purpose of Puja and that he was told by the appellant that these were
not meant for human r:onsumption.
-
(2) It is the duty of the prosecution to prove bc}tond reasonable doubt
that what was sold was food.
The whole object of the Act is to
prevent adulteration of food meant for human consumption.
(3) It is a matter of common kno\vledge that black Til seeds arc not
-
used as food.
HELD : Allowing the appeal :
l: It is tn1e t~at niens rea in the ordinary o~ usual sense of this word is not
required for proving an offence defined by section 7 of the Act.
Nevertheless,
the prosecution has to prove beyond reasonable doubt that what v;as stored or
sold was food. The use of the article sold was not entirely irrelevant. In many
cases, it can be presumed fron1 the nature of the article itself or the circumstances
328
SUPREME COURT REPORTS
(1976] 1 S.C.R.
or rnanneJ of offering it for sale whether lhc food was for.human consumption.
:\
Where circumstances raise a genuine doubt on the auestion \Vhether \Vhat was
kept by a seller was food at all this mu'it be resolved by evidence in the case.
\Vhcre section 7 orohibits manufacture, sale or storage or d'.stribution of certain
types of food, it necessarily denotes articles intended (or human consumption
as food. It is the duty of the prosecution to prove that the article \vhich is the
.subject matter of an

## Text

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SHAH ASHLI JAIWANT
STATE OF MAHARASHTRA
August 18, 1975
[M. H. BEG, P. N. BHAGWATI AND R. S. SARKAR!,\, J.J.]
327
Preve111io11 of Food Ad11lteratio11 Act 1964-Sec. 2(1) (f) 7(i)
16(i)(a)~
Food wlierlu·r nuJst be for h111nan co11sun1ptio11-Nature of proof about food
being for h11111a11
consun1ptio11~Afcns rea whether 11eccssary-I'rese11ce of Ille
lt'itness.
The appellant \V<is charged un<lcr. section 16(1) (a) (i) of the Prevention of
Food Adulteration Act, for contravening section 2( l) (f) an<l 7 (i) of the said
Act. The Food Inspector purchased black Tils from the appellant. P.W. I
Tambe was unable to give either the name of the shop or approxin1ate date
modity by the Food Inspector from the appellant and taking of the sample.
Tambe \Vas . unable to give either the name of the shop or approx!.mate date
or time of his visit.
He was also unable to say .whether the shop of the appellant
\Vas a foodgrains shop.
1'ambe \Vas unable to remember '\\''ho made the cash
memo and whether any one signed the cash memo in his presence.
Tan1bc
could
remember. nothing
material and he \Vas
non-committa1.
rfhe .Food
Inspector in his depos~tion stated that the signature of Tambe \Vas taken on the
cash memo but not on the packets although in the examination in chief he
stated that Tambe had signed the sealed packets also. The seals of the packets
were found broken due to what the Inspector described as "handling". He
admitted that no signafure of the witness was obtained on the counterfoil of the
cash memo. He stated th.Itt black Tils can be used for human consumpticn and
further stated that it is not correct to say that it is used only for Puj'a.
The
appellant denied the presence of Tambe and asserted that he clearly told the
Food Inspector that the blnck Tils in his shop \Vere meant for Puja and not for
human consumption.
·
The Pres!.dency MagislrJ.1..tc afler examining the whole evidence held that
the version of the appellant that there was a talk about the actual purpose for
'vhich the Til seeds at his shoo were meant was more probable because it \vas
supported by '"h~t the appellant had written on the cash men10 when he sold
the Til seeds to the Food Inspector. The ~Iagistrate also held that the Analyst's.
report sho\\'cd that the black Til seeds were full of cocoons visible to the naked
eye and nobody could be expected to purchase them for consumption as food.
However. the Jlvfagistrate held that the purpose for which the Til seeds were kept
\Vas quite immaterial.
The appellant \Vas convicted by the ~fagistrate and the conviction \Vas con·
firmed by High Court. On appeal to this Court by Special Leave it was contended by the appellant.
( ll That black Tils were sold to the Food Inspector specifically for the
purpose of Puja and that he was told by the appellant that these were
not meant for human r:onsumption.
-
(2) It is the duty of the prosecution to prove bc}tond reasonable doubt
that what was sold was food.
The whole object of the Act is to
prevent adulteration of food meant for human consumption.
(3) It is a matter of common kno\vledge that black Til seeds arc not
-
used as food.
HELD : Allowing the appeal :
l: It is tn1e t~at niens rea in the ordinary o~ usual sense of this word is not
required for proving an offence defined by section 7 of the Act.
Nevertheless,
the prosecution has to prove beyond reasonable doubt that what v;as stored or
sold was food. The use of the article sold was not entirely irrelevant. In many
cases, it can be presumed fron1 the nature of the article itself or the circumstances
328
SUPREME COURT REPORTS
(1976] 1 S.C.R.
or rnanneJ of offering it for sale whether lhc food was for.human consumption.
:\
Where circumstances raise a genuine doubt on the auestion \Vhether \Vhat was
kept by a seller was food at all this mu'it be resolved by evidence in the case.
\Vhcre section 7 orohibits manufacture, sale or storage or d'.stribution of certain
types of food, it necessarily denotes articles intended (or human consumption
as food. It is the duty of the prosecution to prove that the article \vhich is the
.subject matter of an offence is ordinarily used for human consumption as food
whenever re<1sonable doubts arise on this question. It is self-evident that certain
articles such as milk, or bread or butter or foodgrains are meant for human
B
consumption as food.
These are matters of common knowledge.
Other articles
may be mean( for human consumption from representations made about then1
i'rom circumstances in which they are offered for sale.
[330 E-H, 331 D-F]
2. About the use of black Tils no judicial notice can perhaps be taken of
its special purposes in Gujarat. The Statement of the Food Inspector that they
can be used as food also amounted at least to a partial admission that they arc
used for Puja.
There is nothing in e"vidence to dislodge the state111ent of the
accused.
[331 F-H. 332A]
C
3. The view of the High Court that the Tits could be consumed after the
performance of Puja rests on bare conjectures.
[332A]
HELD FURTHER :
We are not impressed by the nature of evidence Jed by Jhe pros\!cution.
It
is likely that Tambe was not present to \Vitness the occurrence.
[332Cl
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
119
of 1971.
Appeal by Special Leave from the Judgment and
the 17th February, 1971 of the Bombay High Court
Appeal l':o. 1371 of 1969.
Order
dated
in
Criminal
F. S. Narima11, K. J. John and Shri Narain of M/s J. B. Dadachanji
& Co. for the appellant.
S. B. Wad and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by
BEG, J.
The appellant was charged in the Court of Presidency
Magistrate of Bombay as follows :
"That you on 3-12-1968 at 8 a.m. at Bandra, in contravention of provisions of Section 2(1)(f) and 7(i) of the
Prevention of Food Adulteration Act, sold 450 grams of Til
seeds to the Food Inspector and that the Til seeds were unfit
for human consumption, and thereby committed an offence
under sec. 16(l)(a)(l) of the same Act and within my
cognizance".
The two witnesses produced to support this charge were D. P.
Tambe and S. P. Gaydhani.
D. P. Tambe (P.W. I), a businessman, said that he had gone
to "a shop to m'ake purchases", "'.ithout gi~ing .c\ther the name of
the shop or approximate date or tune of his
vm.t.
Under
cros~
examination. he said that he did not kno;v whet~er 1t was. a foodgra!n
shop
He said that he saw the complamant pick up a pr, open 1t,
and iook at its contents.
He deposed that there was "s?me talk"
between the complainant and the accused.
The complainant was
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S. A. JAISWAN'J' V. MAHARASHTRA (Beg, J.)
32!;
then said to have come up to and told this witness that he would
be taking "some commodity from the jar" which would be sent for
analyl\is.
After that, the complainant, it was alleged, asked for some
Til seeds.
Thereupon, according to this witness, "some persons in
the shop found Til seeds in three plastic hags and gave the bags to
the Inspector".
He said that the Inspector (i.e. the
complainant)
sealed the packets and that the wi.ness signed the packets.
He deposed : "Cash Memo was prepared by some persons in the
shop.
Inspector paid money to accused No. I . . . . . Accused No. l was
with the Inspector all the while".
His cross-examination showed that
he could remember nothing material.
He did no, even
remember
who made the cash memo and whether anyone
signed
it in his.
presence.
He said he only thinks that he signed
it.
To
almost
every question under cross-examination his answer was that he does
not remember.
Even after making every possible allowance for a
memory which could fade with lapse of time, his version was extraordinarily nebulous and non-committal.
The principal witness in the case was S. P. Gayadhani, P. W. 2.
the prosecuting Food Inspector, who stated that, after having gone
into the grocery shop at 731 Hill Road, Bandra, he disclosed
his
identity to the accused and demanded 450 grams of Ti! seeds for
which he paid Rs. 1. 35.
He said that he himself divided this quantity into 3 parts each of which was put into a separate plastic bag
and then sealed and labelled by him.
He claimed to have obtained
the signatures of the accused in the presence of Tambe whom
be
described as
"the
independent
witness
Tambe". Under
crosscxamination, he said that he took the signatures of Tambe on the
cash memo but not on the packets, although he had deposed in his
examination-in-chief that Tambe had signed the sealed packets also.
Incidentally, the seals of the packets were found broken
Jue
to
what the Inspector described as "handling".
He admitted that no
signature of the witness was obtained on the counterfoil of the cash
memo.
He stated : "Black Tils can be used for human consumption.· It is not correct to say they are used only for Pooja.
It is
not true that the accused told me that he had only black Tils used
for Pooja.
It is not true that the accused told me that he will write
on the · cash
memo
the
purpose
for
which
black. Tils
arc
sold".
The accused appellant denied the presence. of Tambe and asserted
that ho had clearly told the Food Inspector that the black Tils in
his shop were only meant for Pooja and not for human consumption.
Apparently, as the Inspector wanted to buy these
ti!
seeds
despite this information given to him, the accused sold
them
to
him and signed the· necessary papers.
The accused
produced
no
witness in defence.
The real dispute on facts revolves round the
question whether
the black Tils were sold to the Food Inspector specifically for· the
purpose. of Pooja after the accused had told him that they were not
meant for human consumption, or, they were sold withoμt giving such
information to the Food Inspecto;.
In order· to judge whether the
330
SUPREME COURT REPORTS
[1976] 1 s.c.R.
Food Inspector's version or the accused's
explanation
was
more
credible, it became necessary to examine the evidence of the only
witness produced to corroborate the
Food
Inspector.
We
have
rnnsidcrcd the question whether it actually corroborates or contradicts
the Food Inspector's account.
ft seems to us that there is
such
vagueness and apparent contradiction in the pictures conveyed
by
Tambe and the Food Inspector that Tambe's testimony tends to
demolish more than to corroborate the version of the Food Inspector
on points of fact in issue.
It indicates that Tambe was probably
not present at the time when the seeds were sold by the appellant to
the Food Inspector.
The Presidency Magistrate, after cxanmung the whole evidence,
had concluded that the version of the appellant, that there was a talk
about the actual purpose for which the Ti! seeds at his shop were
meant, was more probable because it was supported by what
the
appellant had written on the cash memo when he sold these Ti! seeds
to the Food Inspector. After all, the appellant, who had a grain
sl1op, must have known that the Food Inspector could prosecute
him if he kept adulterated foodstuffs for sale for human consumption.
If, as the analyst's report showed, these black Ti! seeds were
full of cocoons, visible to the naked eye, nobody could be expeckd
to purchase them for consumption as food.
The learned Magistrate,
after finding that it was more probable that there was a talk about
the purpose for which the Ti! seeds were kept in the accused's shop,
despite the Food Inspector's denial about such talk, held that the
,purpose fur which the Ti! seeds were kept was quite immaterial.
It is trnc that mens rea in the ordinary or usual sense of this
term is not required for proving an offence defined by Sedion 7 of
1he Prevention of Food Adulteration Act, 1954 (hereinafter referred
to as 'the Act'). It is enough if an article of adultcred
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 there·
:under.
Nevertheless, the prosecution has to prove, beyond reasonable
,doubt, that what was stored or sold was 'food'. The charge was that
the Til seed£ sold were unfit for human consumption. Tilis necessarily meant that it was part of the prosecution case that the Til seeds
with which we arc concerned were meant for human consumption.
Recently, this Omrt has held in Bhagwan Das v. Delhi Administra·
rion,(') that, although mens rea, in the ordinarily understood sense,
may not be needed lo be proved in such cases, yet, the purpose for
which articles of food covered by the Act are manufactured, distributed or sold was that they '"should reach the consumer to be used as
food".
Thus, the use of the article sold was not entirely irrelevant.
lt is more correct to say that it is presumed from the nature of the
article itself or the circumstances and manner of offering it for sale.
Where circumstances raise a genuine doubt on the question whether
what was kept by a seller was "food" at all, this must be resolved
(!) A. I. R. 1975 S. C. 1309 ;~ 1318.
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s. A. J"1WANT \'.MAHARASHTRA (Beg, J,)
331
by evidence in the case.
After all, if what is stored or sold in a shop
was neither "food" nor meant to be so used could a person be prosecuted on the ground that he sold it in an adulterated condition?
J t was contended on behalf of the appellant
that
the
whole
object of the Act was to prevent adulteration of "food'' meant for
human consumption. Our attention was invited to a passage from
Pyare Lal etc, v. New Delhi Municipal Committ.ee & Anr.(1), where
this Court said :
"The object of this Act was to ensure that food which
the public could buy was inter alia prepared, packed, and
stored under sanitary conditions so as not to be injurious
to the health of the people consuming ;t",
Section 2, sub.s.(v) of the Act lays down:
" ( 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
o
the composition or preparation of human food, and
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(b) any flavouring matter or condiments";
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. It is self-evident
that' certain articles, such as milk, or bread, or butter, or foodgrains
arc meant for human consumption as food.
These arc matters of
common knowledge.
Other articles may be presumed to be meant
for human consumption from representations made about them or
from circumstances in which they are offered for sale.
What is the
position in this respect about black Ti! seeds with which
we
arc
concerned here?
It is submitted that it is a matter of common knowledge
that
black Ti! seeds are not used as food.
Even if this be true, it "
not so widely known a fact that we could take judicial notice of it.
It is also urged that, when the case of the appellant, supported by
his cash memo, is that the particular black "Til" seeds were meant
to be sold only for pooja for being burnt like incense
or thrown
into fire in the course of pooja, it cannot be said that this case had
been repelled by the mere statement of the Food
Inspector
that
they can be used as food also.
Such a statement amounted at least
to a partial admission that they are used for Pooja. Therefore, it
is urged, they could have been kept for the purpose of being sold
only as a substance used for pooja and not as human food. It is
pointed out that there is nothing in evidence on this
question,
to
0) [1967]3 S. C.R. 747@755.
332
SUPREME COURT REPORTS
(1976] 1 S.C.R.
dislodge the statement of the accused.
We fmd no
evidence
on
record to show the actual manner in which such seeds are used in
the course of Pooja.
Therefore, the view of the High Court that
they could be consumed by people after the performance of pooja
rests on bare conjecture.
There had to be credible evidence to show
that black Til seeds are ordinarily used as food. If that were so,
the burden would have shifted on to the shoulders of the accused to
prove that what he had stored was not really food meant for human
consumption but an article kept for a special use.
We are left in
doubt on this question on the evidence in this case.
We think that
the appellant must get the benefit of that doubt.
As already indicated above, we are not impressed by the nature
of the evidence led by the prosecution.
We cannot entirely ignore
the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7)
of
the Act had been strictly complied with.
We think that it is more
likely, for the reasons already given by us, that. Tambe was not there
at all to witness the occurrence. If that be so, the evidence of the
prosecuting Food Inspector, who said that Tambe was there, cannot
be implicitly relied upon in this case. It is quite unsafe to base the
appellant's conviction on such shaky foundations.
AccordingLy, we allow this appeal, set aside the conviction and
sentence of six months' rigorous imprisonment and fine of Rs. 1,000/-,
and, in default, further rigorous imprisonment for two months, imposed upon the appellant.
The appellant who is
on
bail need
not surrender.
His bail bonds are discharged.
The fine, if realised,
shall be refunded to him.
P.M.P.
Appeal allowed.
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