JUDGMENT : R.N. Misra, J. - The Petitioner has been convicted u/s 16(1)(d) of the Prevention of Food Adulteration Act and has been sentenced to pay a fine of Rs. 101/- or in default suffer simple imprisonment for a month. 2. The case made out by the prosecution was as follows: On 23-2-1965 (wrongly stated in the judgments of the Courts below as 14-3-1964) p.w. 1 who was the Food Inspector inspected the flour atta mill of the Petitioner located within the town of Cuttack and discovered 17 bags of floor-swept waste atta and 2 hags of chokad (wheat bran) kept, in the milling room. He proceeded to seize the same u/s 10(4) of the Act as per seizure list (Ex.1). The Petitioner was prosecuted u/s 16(1)(d) of the Act on the allegation that the contents of the aforesaid 19 bags bad apparently been kept for adulteration. 3. The defence plea was that the Petitioner is a manufacturer of atta. In the process of milling and handling of atta on the floor of the milling room atta powder is collective and occasionally it has to be cleaned. He was in the habit of collecting the floor-swept atta and keep it for use as cattle fooder. Similarly on that day he bad purchased two hags of wheat bran chokad from the Bhima Ice Factory, Cuttack for the purpose of cattle fodder. The said bags were lying in the milling premises to be carried to his residential house in the evening for the cattle. 4. The prosecution did not press its claim in respect of the 17 bags of floor-swept atta any further after the learned magistrate in paragraph 7 of his judgment stated: Basing on that decision, accused cannot be said to have committed any offence u/s 16(1)(d) so far possession of 17 bags of waste atta is concerned. The case before the learned magistrate proceeded on the basis of the possession of the two bags of wheat bran. Dealing with that aspect of the matter, the learned magistrate stated: No doubt in the aforesaid case law, it was also held that it cannot be the intention of the Act to inhibit the manufacture of such articles of food by making the possession of the bye product an offence. Dealing with that aspect of the matter, the learned magistrate stated: No doubt in the aforesaid case law, it was also held that it cannot be the intention of the Act to inhibit the manufacture of such articles of food by making the possession of the bye product an offence. But in the foregoing sentence his Lordship observed that there might be other instances where a bye product of the manufacture of Antarctic of food is a material which can be used as an adulterant. No doubt the 2 bags of chokad found in possession of the accused in the premises of his mill is a bye product of wheat and atta but these were not the bye product of the own manufacture of the accused. These were purchased from Bhima. Ice Factory stored in the premises. He therefore, convicted the Appellant in the manner indicated above. 5. Before the learned appellate judge it was contended that the conviction by the learned trial judge was contrary to law. Section 16(1)(d) of the Act provides: If any person being a manufacturer of an article of food has, in his possession or in any of the premises occupied by him, any material which may be employed for the purpose of adulteration...he shall in addition to the penalty to which be may be liable under the provisions of Section 6, be punishable with imprisonment for a term... 6. The learned appellate judge ultimately held after reviewing the legal position that the seizure was under the provisions of Section 10(6) of the Act. Chokad or wheat bran is a material which may be employed for the purposes of adulteration in atta and the explanation regarding storage of wheat bran having not been accepted by him, he upheld the conviction and dismissed the appeal. 7. Mr. Mohanty; learned Counsel for the accused Petitioner contends that the prosecution has failed to establish that by mixing wheat bran with atta there can be adulteration. "Adulterated" has been defined under the Act. Section 2(i) states thus: "adulterated"-an article of food shall be deemed to be adulterated. 7. Mr. Mohanty; learned Counsel for the accused Petitioner contends that the prosecution has failed to establish that by mixing wheat bran with atta there can be adulteration. "Adulterated" has been defined under the Act. Section 2(i) states thus: "adulterated"-an article of food shall be deemed to be adulterated. (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is re-presented to be; (b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof; (c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof; (d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof; (e) if the article had been prepared, packed or kept under in sanitary conditions whereby it has become contaminated or injurious to health; (f) if the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or in insect infested or is otherwise unfit for human consumption; (g) if the article is obtained from a diseased animal; (h) if the article contains any poisonous or other ingredient which renders it injurious to health; (i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health; (j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article; (k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; (l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits or variability; 8. Keeping the aforesaid definition in mind and not taking into consideration any other aspect for the moment it has first to be found out as to whether wheat bran can be employed for the purpose of adulteration in the instant case. Keeping the aforesaid definition in mind and not taking into consideration any other aspect for the moment it has first to be found out as to whether wheat bran can be employed for the purpose of adulteration in the instant case. There is no acceptable evidence in this case nor have the Courts below recorded a finding that wheat bran is a material which can be employed for the purposes of adulteration as it would come under one of the clauses of the definition of adulterated article of food. Examining the various clauses of the definition I find what is necessary to be established as a material fact is that the adulterant must affect injuriously the nature, substance or quality of the food or by such adulteration the food itself must become contaminated or injurious to health. The purpose of the Act is well-known and shortly stated the legislative purpose is to ensure that food for human consumption is free from adulteration. If that is the basis breach whereof is penalised under the Act, until there is a determination that wheat bran can be used as an adulterant, the conviction of the Petitioner would not be maintainable. Anum her of decisions were cited before me by Mr. Mohanty. But I am not noticing them in view of my finding that the prosecution has failed to prove and the Courts below having not held and I am not prepared now to hold on the materials on record that wheat bran can be used as an adulterant for the purposes of atta. Whether the objected stuff is an adulterant would depend upon what is the human food with reference to which adulteration is being tested. In this case we are concerned with atta, the Petitioner being a manufacturer of that stuff. With reference to atta, wheat bran to my mind is not an adulterant and the prosecution has not led evidence to help the Court to find that wheat bran can be taken to be an adulterant. On the aforesaid analysis it is unnecessary to get into the points raised by Mr. Mohanty at considerable length during the hearing. I conclude that the prosecution has failed to prove that wheat bran is a material which can adulterate atta. In the circumstances the prosecution must fail. The Petitioner is entitled to acquittal. 9. This Revision is allowed. Fines if paid be refunded. Mohanty at considerable length during the hearing. I conclude that the prosecution has failed to prove that wheat bran is a material which can adulterate atta. In the circumstances the prosecution must fail. The Petitioner is entitled to acquittal. 9. This Revision is allowed. Fines if paid be refunded. Final Result : Allowed