IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36896 of 2006 1. MD.SAGIR 2. Md. Mukhtar Alam ……………………. Petitioners Versus STATE OF BIHAR & ANR ----------- For the Petitioners: Mr Syed Ehteshamuddin, Advocate : Mr Abu Haider, Advo9cate For the State : Mr S.N.Jha, APP -------- 7. 19.03.2009 Heard learned Counsel for the petitioners and the learned Counsel for the State. The petitioners are aggrieved by the order of cognizance dated 8.8.2005 and the order dated 7.10.21005 by which their application for discharge in a prosecution under section 16(1)(A) of the Prevention of Food Adulteration Act, 1954 registered as CB-1/2005 corresponding to Tr. No. 2115/2005 has been rejected. The prosecution report is that the sample of “Musa Ka Gul” is adulterated on basis of much more value of ash and ash insoluble in diluted Hydrochloric Acid. Further the sample was misbranded within the meaning of Section (ix)(j) & (k) of the Prevention of Food Adulteration Act, 1954 by virtue of violation of Rule 32 (2) of the Prevention of Food Adulteration Rules, 1958. Learned Counsel for the petitioners submits that “Musa Ka Gul” is not an item of food. Therefore, the provisions of Prevention of Food Adulteration Act have no application. The entire prosecution of the petitioners is therefore without jurisdiction. He relies on a Division Bench decision of this Court in 1997 (1) PLJR 891 (M/s Haji A. Rahim Khan & ors Vrs. The State of Bihar & ors.). 2 Learned Counsel for the State submits that the objection sought to be raised on behalf of the petitioners can well be considered during trial itself as to what exactly is “Musa Ka Gul”. In the case M/s Haji A. Rahim Khan, relied upon by the petitioners, the prosecution was launched under the Drugs & Cosmetics Act with regard to “Gulab Marka Gul”. The Division Bench at Para 29 of the judgement held as quoted hereinabove:- “29. There is yet another reason to hold that „Gul‟ is not a cosmetic. I feel that describing Gul as cosmetic would be strongly opposed to public policy. After all Gul is another form for the consumption of Tobacco, a highly toxic and addictive substance, and gravely injurious to human health. I think, it would be left for what it is an undesirable and unhealthy concoction of tobacco rather than give it the fancy name of cosmetic and add to its advertisement potential”. The Division Bench quoted that the prosecution under the Drugs and Cosmetics Act was not maintainable since the product did not constitute a cosmetic. The Division Bench noticed that „Gul‟ was another form for consumption of tobacco a substance strongly injurious to human health. A substance which per se is highly injurious to human health cannot constitute „food‟. An item adulterating of food can make the item injurious to human health. Tobacco is not an ingredient of food or a raw material for food. Section 2(v) describes the “food” as follows: “food” means any article used as food or drink for human consumption other than drugs and water and includes- 3 (a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavoring matter or condiments, and (c) 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.” Food in its original connotation consists of any edible, item which provides fuel to the human body such as proteins and carbohydrates etc. to enable the human metabolism to continue and the human being to live. Any ingredient added in an item for consumption by a human being will therefore come within the definition of food. Tobacco is not an item which is eaten by itself for the purpose of survival or for human metabolism. On the contrary it is a product which is highly injurious to the human health and cannot constitute food. If tobacco is not food for human consumption and neither it is an ingredient to be added into any other item coming within the definition of the term „food‟ and on the contrary it is an item highly injurious to human health, the question of prosecution of the petitioners under the provisions of Prevention of Food Adulteration Act simply does not arise. This Court therefore holds that “Musa Ka Gul” a product used for applying on the teeth whether it be for cleansing the teeth or for achieving benefits of artificial intoxication, does not qualify the product as a food item. Liquor is also consumed and only in excess is harmful to human life on the contrary tobacco is outright harmful and injurious. Such is not the case presently. 4 The entire prosecution of the petitioners is therefore quashed as without jurisdiction. The application is allowed. Snkumar/- (Navin Sinha,J.)