Judgment 1. This appeal has been preferred with the special leave under Sec. 417(3) of the Code of Criminal Procedure against the acquittal of the respondent who was put on trial for an offence under Sec.16(1)(a) of the Prevention of Food Adulteration Act, 1954. 2. The prosecution was instituted with the permission of the Health Officer of a local authority, known as Jamshedpur Notified Area Committee, who was competent to consent to the prosecution under Sec. 20 of the Act. 3. It appears that on 15th December, 1965, Rajendra Prasad Singh (P.W. 2) a Food Inspector of the Notified Area Committee visited the grocery shop of the respondent situated in Sakchi Mill Area. He disclosed his identity to the respondent and purchased from him a sample of 450 grams of Gota Haldi (Haldi stick) for Chemical analysis on payment of Re. 0.62 as price. The respondent in his turn granted a receipt (Ext. 3) to the Food Inspector wherein he mentioned "I sold 450 grams of "A. Kha" polished Gota Haldi, Hirot to Sri R.P. Singh, Food Inspector for sample and received 62 Paise as price of it". After making the purchase the Food Inspector followed the procedure laid down in Sec.11 of the Act. In other words he divided the article into three equal parts and put each part in a separate glass phial, corked and sealed them and put labels thereon. He handed over one of the sealed phials to the respondent under a separate receipt (Ext. 4) and prepared Form VI (Ext. 5) in four copies having obtained the signature (Ext. 5/1) of the respondent on the original Form VI. One of the sample phials along with the requisite form including Form VI was forwarded to the Public Analyst, Patna. The report of the Public Analyst (Ext. 8) disclosed that the turmeric contained lead to the extent of 15 per million, as against the permissible limit of 2.5 parts per million. Accordingly the Public Analyst reported that the sample of Haldi stick which had been forwarded after the purchase from the respondent was "adulterated due to its containing excess lead". Thereafter, the present prosecution was instituted with the sanction of the Health Officer who had been authorised by the Committee in this regard by a resolution (Ext. 13) dated the 4th September, 1961. 4. Thereafter, the present prosecution was instituted with the sanction of the Health Officer who had been authorised by the Committee in this regard by a resolution (Ext. 13) dated the 4th September, 1961. 4. At the trial the respondent admitted that the sample of Haldi stick was taken from his shop by the Food Inspector. But he asserted that the Haldi which he had sold was meant for use as a dye. 5. On behalf of the prosecution the attention of the learned trying Magistrate was drawn to the definition of food contained in Clause (v) of Sec.2 of the Prevention of Food Adulteration Act. His attention was also drawn to the decision of this Court in the case of Patna Municipal Corporation, Patna V/s. Dularchand Sao, AIR 1964 Pat 565 , where I had held that having regard to the definition of "food" which has been given in the Act, the Court is not concerned with the actual use to which the article in question may be put. I took the view that - "To constitute "food" for the purpose of the Act, it is enough that the article in question is usable as food or drink for human consumption. The word used which is to be found in Sec.2(v) of the Act obviously means usable or capable of being used, and not to be used or for the purpose of being used." In that case I expressed my dissent with the decision of the Andhra Pradesh High Court in Public Prosecutor, Andhra Pradesh V/s. S. Satyanarayana, AIR 1958 Andh Pra 681. I note that that Andhra Pradesh case has not been approved in a Bench decision of the same Court in Public Prosecutor V/s. V/s. Nagabhushanam, AIR 1965 Andh Pra 118. There are various other decisions in support of the view which I took in Dularchands case, AIR 1964 Pat 565 , and they have been collected in Food Inspector of Puri Municipality V/s. K.C. Anjanayulu, AIR 1966 Orissa 144 at p. 148. 6. The learned Magistrate, however, has distinguished my decision in Dularchands case, AIR 1964 Pat 565 , by pointing out that in the instant case the accused had given out at the very stage of selling the sample to the Food Inspector that what he was selling was not meant to be an article of food. The learned Magistrate referred to the receipt (Ext. The learned Magistrate referred to the receipt (Ext. 3) wherein the expression "A. Kha" was used to denote the Hindi Akhadya or uneatable. The learned Magistrate also referred to Form VI (Ext. 5) wherein it was inserted at the instance of the respondent that the article in question was "Haldi stick coloured". According to the learned Magistrate, therefore, there was positive and direct evidence on record to the effect that the sample in question was not meant for food and a plea to this effect was put forward by the respondent at the earliest stage. I am, however, of the opinion that the view taken by the learned Magistrate is not sound. There can be no doubt that what the respondent had sold was an article of food within the meaning of Prevention of Food Adulteration Act. Beading the evidence of the Food Inspector (P.W. 2) it is abundantly clear that he followed the procedure contained in Sec.11 of the Act. Such a procedure has to be followed when a Food Inspector takes "sample of food for analysis". In other words, the Food Inspector (P.W. 2) had purchased the turmeric as an article of food, which undoubtedly a turmeric is. Having sold such an article of food the respondent could not escape his liability under the Act merely by giving out, may be at the earliest stage, that the article was not meant for being consumed as an article of food. In my opinion, such a defence is not available at all to a person who is found to have sold an article of food which on analysis is found to be adulterated. 7. The view that I have taken is supported by a catena of decisions. In Rakhal Chandra V/s. Puran Chandra, AIR 1930 Cal 273, which was a case under the Bengal Food Adulteration Act, 1919, it was held that it is no defence for an accused to say that he had advertised that he was not selling pure food and that the purchaser knew the fact. In that case the accused had sold mustard oil to the Sanitary Inspector, but he has not sold the same as mustard oil but as mixed oil. He had also set up a signboard in his shop to indicate that the mixed oil was meant for lighting purpose. In that case the accused had sold mustard oil to the Sanitary Inspector, but he has not sold the same as mustard oil but as mixed oil. He had also set up a signboard in his shop to indicate that the mixed oil was meant for lighting purpose. Even so, it was held that the mustard oil being an article of food it was no defence to say that the article could be adulterated and sold in the market with the publication of the fact that it was adulterated. 8. In Chairman, District Board, Midnapur V/s. Atul Chandra Pal AIR 1933 Cal 619, the accused had stored some mustard oil mixed with linseed oil which he sold as fuel oil and pleaded that he did not intend that it should be used for human consumption. It was held that what was stored was an article of food within the meaning of Sec. 6(1) of the Bengal Food Adulteration Act and since the same did not conform to the standard required by the section, the accused was guilty. It was observed : "But it cannot rightly be held in my opinion that it is a sufficient defence for the accused merely to say that it was never intended by him that the things should be used for human consumption. It is quite clear that the mere placing of a label on a cannister containing some article, if in fact it can be used as an article of food will not help him in escaping a conviction." In the Orissa case, AIR 1966 Orissa 144, already referred to, the accused had sold adulterated ghee after putting labels on the tins to indicate that it was meant for lighting purposes. It was held that this furnished no defence to a charge of selling adulterated food. Therefore, even although the respondent, in the instant case, had stated at the earliest stage in Ext. 3 that the turmeric which he had sold to the Food Inspector was not food for human, consumption, the respondent could not escape the liability imposed upon him by the Act on account of the sample of turmeric having been found to be adulterated. I, therefore, hold that the guilt of the respondent has been proved beyond doubt and his acquittal is unjustified. I, therefore, hold that the guilt of the respondent has been proved beyond doubt and his acquittal is unjustified. 9 In the result, I set aside the acquittal and convict the respondent under S. 16 (1)(a) of the Act. Since, however, this appears to be the respondents first offence under the Act and since more than three years and a half have elapsed since the date of occurrence, I am of the opinion that the ends of justice would be amply met by imposing a suitable fine. I, therefore, impose upon him a fine of Rs. 250, in default of the payment of which he will undergo simple imprisonment for three months.