Saikia, J.:- The only question for determination in this revi­sion petition is whether in Assam Moth dal can be said to be food for human consumption as defined in Section 2 (V) of the Prevention of Food Adulteration Act, briefly 'the Act'. On 5.6.72 the District Food Inspector, Nowgong purchased Moth dal sample from the petitioner which the Public Analyst reported to have been coloured with non permitted 'metanil yellow' and hence adulterated. Prosecuted under Sec. 16 (1) read with Section 7 (1) of the Act, the petitioner took the plea that it was stored for sale as cattle feed, and it was not food for human consumption. At the trial P.W.1, the District Food Inspsctor, deposed that he purchased 750 Grams of Moth dal from the petitioner, divided the sample into 3 parts, put each part into Polythine bag, wrapped each with papers, tied and sealed each packet and sent one to the Public Analyst whose report (Ext.4) said that the Moth dal was coloured with prohibited 'metanil yellow'. The witness sent a copy of Ext.4 to the petitioner by registered post, Ext.6 being the postal receipt and Ext.7 the acknowledgment receipt thereof. P.W.2, Moniram Bania, a Peon in the office of the Civil Surgeon, Nowgong deposed that on 5.6.72 he with P.W.1, went to the shop of the petitioner and the latter took samples of Moth dal from the petitioner's shop giving notice (Ext-1) to the petitioner and obtai­ning receipt (Ext.2) which he signed. Defence examined Puma Chandra Bora, a retired Mandal, who deposed that on 5 6.72 he came to the petitioner's shop and while he was sitting the Food Inspector took samples of dal from a bag which was lying at the corner of the shop, when the petitioner was not present; and his employee told the Food Inspector that the dal was not for sale for human consumption when the petitioner came and put his signature as required by the Food Inspector. The learned trill Court disbelieved D.W.1's statement that the employee told P.W.1, that the dal was not for sale for human consumption as defence did not examine that employee. In the face of the deposition of P.W. 1 and P.W.2 and Ext.1 and Ext. 2 which clearly mentioned about 750 Grams of Moth dal, the learned trial court rejected the defence plea. In the face of the deposition of P.W. 1 and P.W.2 and Ext.1 and Ext. 2 which clearly mentioned about 750 Grams of Moth dal, the learned trial court rejected the defence plea. The defence did not contest that the sample was coloured with non permitted 'metanil yellow', but contended that moth dal could not be regarded as food in this part of the country. The learned trial Court rejected this contention applying the defini­tion of a food under Section 2 (v) of the Act, holding that moth dal was a kind of dal and the fret that it was cot grown in Assam was immaterial. It was further, held that 'metanil yellow' being a prohibited colour under Sec. 2 (1) (j) whether it was injurious to health or not was immaterial. The petitioner was accordingly convicted and sentenced to undergo rigorous impri­sonment for 6 months and to pay a fine of Rs. 1,000/- and, in default, further rigorous imprisonment for 3 months. On appeal the Sessions Judge held that the accused stored moth dal for sale for human consumption : and that the trial was not vitiated by non-observation of Section 10 (7) of the Act for examining P.W.2, a Peon in the Civil Surgeon's office as a witness. The appeal, therefore, failed. Hence this petition The learned counsel for the petitioner submits that the defi­nition of 'Food' under Section 2 (v) means any article used as food or drink for human consumption other than drugs and water and includes any article which ordinarily enters into, or is used in the composition or preparation for human food, and 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. Counsel submits that the first part of the definition includes articles ordi­narily used for human food, while the second part of the defi­nition includes articles not ordinarily used as human food; and in case of second category of articles, it is burden of the prose­cution to prove that it is an article of food ; and that in this case moth dal having belonged to the second category the prose­cution did not discharge that burden. He further submits that moth dal is not food in Assam as it is not grown in Assam. He further submits that moth dal is not food in Assam as it is not grown in Assam. The learned Public Prosecutor on the other hand contends that moth dal is a variety of dal and is undoubtedly a food for human consumption falls in the first category in the definition rather than in the second category ; and that both the courts below found as fact that the moth dal was stored for human consumption. Both the courts below having held that the Moth dal was stored for sale for human consumption on the basis of the evi­dence of P. Ws. 1 & 2 and defence having failed to examine the concerned employee to corroborate D. W. 1, we do not find any infirmity in that finding, The only other question for determination of which the case was referred to a Division Bench is whether Moth dal is an article of food in this part of the country. Under Section 2 Clause (xii-a), primary food means any article; of food being a produce of agriculture or horticulture in its natural form. As defined under Section 2 (v) any article used as food OF drink for human consumption other than drugs and water, any flavouring matter or condiments and any article which ordinarily enters into or is used in composition or preparation of human food will be food. Food is that which is eaten or drunk for nourish­ment of the human body except drugs and water. Under the definition any article used for food or drink by human being other than drugs or water is included. To determine whether an article constitutes 'food' what has to be seen is whether the article in question is usable and enters into the composition or preparation of food which is taken by human being. The definition is couched in wide terms and will cover any article which enters into the composition or preparation of human food and will also cover any flavouring matters or condiments. Once the article is found to be food, the onus is on prosecution to prove that it was kept in the shop of the accused for sale for human consumption and was sold as such. Mere statement that it was kept for sale not for human consumption may not exonerate the accused. Once the article is found to be food, the onus is on prosecution to prove that it was kept in the shop of the accused for sale for human consumption and was sold as such. Mere statement that it was kept for sale not for human consumption may not exonerate the accused. Once the article constitutes food in the sense that it is usable as food or drink for human consumption, it is for the defence to show that it could not have been used for human consumption. Whether this burden was discharged by the defence would always depend on the facts and circums­tances of the case. In cases of article commonly used as human food, the conclusion that it was stored for sale for human consump­tion will rather easily be drawn. Considering the range of food habits of the various sections of the population in the country depending on varying economic conditions, when there are people to pick up whatever food they can lay hand on, to prove that the article was stored for sale not for human consumption, but as cattle or animal food or for some other purpose, would rather be difficult. In Pyarali K. Tejani vs. Mahadeo Ram-Chandra Dange, AIR 1974, S. C. 228, it has been observed : "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 commonplace knowlegde that the word "food" is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries". In the State of Tamil Nadu vs. R. Krishnamurthy AIR 1980 SC 538 , it has also been observed that it is not necessary that the article is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as a commodity for some other use. It is enough, if it is generally or commonly used for human consumption or in the preparation of human food. It is also irrelevant that it is described or exhibited as a commodity for some other use. It is enough, if it is generally or commonly used for human consumption or in the preparation of human food. As was observed therein, "it is notorious that there are unfortunately in our vast country large segments of population who living as they do far beneath ordinary subsistence level are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body soul to gather they are often tempted to buy and use as food articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self destruction of these poor, ignorant and illiterate persons that the definition of 'food' is couched in such terms as not to take into account, whether an article is intended for human consumption or not. In order to be 'food' for the purpose of the act, an article Deed not be fit for human consumption; it need not be described or exhi­bited as intended for human consumption, it may even be otherwise described or exhibited. It need not even be necessarily in­tended for human consumption, it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not 'food'. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally op commonly used for human consumption or in the preparation of human food, there can be no question but that the article is food. It is necessary, therefore, to consider whether Moth dal com­monly enters into preparation for human food in the country in general and Assam in particular. But where the article is one which is generally op commonly used for human consumption or in the preparation of human food, there can be no question but that the article is food. It is necessary, therefore, to consider whether Moth dal com­monly enters into preparation for human food in the country in general and Assam in particular. In Criminal Revision No. 202/74 Multan Chand Behari vs. State of Assam decided on 2.5.78 the question whether Moth dal was a food for human consumption, came up for considera­tion. In that case Food Inspector himself had no knowledge whatsoever even on the date of his deposition that Moth dal was a food for human consumption and another witness also did not know but stated that Moth dal was not produced in this part of the country. The prosecution was, the before, held to have failed to prove that Moth dal was a food for human consump­tion. In this connection, the learned counsel for the petitioner had produced "Rajasthan Gazette" Extraordinary dated 5th August 1972 issued by Rajasthan Government declaring Moth dhara and Moth Churi" as fodder under the "Rajasthan Cattie Fodder sale” of Stocks and Prohibition of Exports Order, 1972". The learned Public Prosecutor relying on a book "The Wealth of India"- A Dictionary of Indian Raw Materials and Industrial Products, published by the Council of Scientific & industrial Research, New Delhi, Vol. X, submits that Moth dal is grown to some extent in almost all the districts of Assam and that it is used as food for human consumption as well as cattle fodder and this had not been placed before the learned Single Bench that decided the Criminal Revision No. 202 of 1974. In Vol. X, Raw Materials, of the Wealth of India, Moth dal is found at page 470 under the caption Vigna Savi (Leguminosae; Papilionaceae) where we read : "A genus of climbing or trailing herbs, distributed mostly in the tropical and subtropical regions of the Old World. It includes a large number of species of consider­able importance, used either as food or as forage. In India, nearly. 15 species are known, including some of the well-known pulses like mung, urd, moth and Lobia, the seeds of which form an important protein supplement to the rice diet. It includes a large number of species of consider­able importance, used either as food or as forage. In India, nearly. 15 species are known, including some of the well-known pulses like mung, urd, moth and Lobia, the seeds of which form an important protein supplement to the rice diet. Some of the species are valued as green manure or as cover-crops." We find under the sub-head V. aconitifolia (Jacq.) Marechal syn. Phascolus aconitifolius Jacq, MOTH OR MAT BEAN, ACONITEBEAN. HINDI- Moth, bhringga; BENG.-Kheri, MAR.-Matb, matie; CUJ.-math; TEL.-Kunchmapesnt; TAM-Tulukkapayir; KAN.-MADIKE: PUNJAB-Bhioni; SANTAL-Birmung, moch, birmoch; MUNDARI-Mugirambara- "Two types are recognized in the trade : (1) black moth (Kali mungi); and (2) whitish green moth (Gora), the latter being the more common. The black type is grown to a lesser extent, mostly in Haryana and Gujarat". "Moth is a native of India and is considered more recently domesticated than either black gram or green gram. It is mostly grown in India and to a small extent in China. In India, it is an important crop, cultivated for food and forage, in Rajasthan Madhya Pradesh, Maharashtra, Karnataka, Gujarat, Purjab, Haryana, Uttar Pradesh and Bihar. In West Bengal and Assam, moth is grown to some extent in almost all the districts. At page 472 we read : "The tender pods are used considerably as a vegetable in certain parts of India, especially in Maharasthra. The dried pulse in split and eaten as dal; it is also parched or boiled with other condiments and eaten. It may be ground into flour and used in mixture with flours of other grains for making unleavened breard. Fried and salted moth dal mixed with similarly fried green gram and black gram dais and known as dal moth, is a favourite snack in many parts of the country. The grain is given to oxen and horses as a fattening food, but not to milch cattle, as it is believed to prevent the flow of milk when given to oxen, it is broken and steeped in water to soften. The pulse is said to be a useful diet in cases of flatulence and fever." At page 474 we read : ''The plant is highly esteemed as fodder for livestock, and is often grown mixed with a millet for this purpose. It makes excellent leafy hay, if cut when the first pods are ripe. The pulse is said to be a useful diet in cases of flatulence and fever." At page 474 we read : ''The plant is highly esteemed as fodder for livestock, and is often grown mixed with a millet for this purpose. It makes excellent leafy hay, if cut when the first pods are ripe. Tender stems, pods and leaves left after thres­hing the grains, called gotar, are also useful as cattle-food." From the above description it may reasonably be concluded that Moth dal is a variety of pulse which is ordinarily used as food for human consumption throughout the country. It is also grown to some extent in almost all the districts of West Bengal and Assam. These facts were not placed before the Hon'ble Single Bench. We are, accordingly, inclined to hold that moth dal is food for human consumption as defined in Section 2(v) of the Act and it belongs to the first category included in the definitions. This will equally apply to Assam where we find people from different parts of India. It will be included in A.18.06-"Foodgrains" in Appendix 'B' among pulses, as substi­tuted on 26.5.71. In the instant case Moth dal was coloured with metaril yellow, which is not permitted under Rule 28 of the Rules. If it was meant for cattle food, there is no reason why it should have been so dyed. This fact also lends support to the conclusion that the Moth dal was stored for sale for human conumption and not for cattle food, which the learned courts below have correctly found. Rule 28 of the Prevention of Food Adulteration Rules prohibits the use of coaltar dyes or a mixture thereof except those stated under the Rule. As defined under Section 2 (j) an article of food shall be seemed to be adulterated if any colou­ring matter other than that prescribed in respect thereof is pre­sent in the article. In the instant case the trial Court convicted the petitioner under Section 16 (1) read with Section 7 (1) of the Act. The violation is under clause (j) of Section 2 (1). Under the pro­viso to sec. In the instant case the trial Court convicted the petitioner under Section 16 (1) read with Section 7 (1) of the Act. The violation is under clause (j) of Section 2 (1). Under the pro­viso to sec. 16 (1) if the offence is under sub-clause (ii) of clause (a) the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than Rs. 1,000/- or both. Use of matanil yellow is contravention of Rule 28 of the Rules and so falls under Section 16 (1) (a) (ii) and as such covered by the proviso to Sec. 16 (1). As in Criminal Revision No. 148 of 1974 (Shri Hazarimal Agarwal vs. State of Assam) disposed of on 2.2.81, considering the fact that a decade has elapsed and the petitioner was in jail from 28.1 75, to 4.2.75, ends of justice and crime prevention may be met if the petitioner is convicted under Section 16 (1) (a) (ii) read with Sec. 7 (1) of the Act and sentenced to Impri­sonment for the period already undergone and to pay a fine of Rs. 1,000/-(Rupees one thousand), in default, to rigorous impri­sonment for three months; and we convict and sentence him accordingly. Subject to the above modification in the sentence the revision petition is dismissed. The Rule is discharged.