IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2011 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No.1256 of 2004 Thiyagarajan ... Appellant/1st Accused VS State by Inspector of police, Civil Supplies C.I.D., Erode ... Respondent/Complainant . . . PRAYER: Appeal filed under Section 374(2) Cr.P.C against the judgment dated 13.10.2004 made in S.T.C.No.3 of 2001 on file of the learned Additional District and Sessions Judge cum Special Court for Essential Commodities Cases, Coimbatore. . . . For Appellant : Mr.A.K.Kumaraswamy For Respondent : Mr.P.Mumaresan, Public Prosecutor . . . J U D G M E N T An interesting but important question as to whether "Coffee" is an Essential Commodity as defined in Section 2 of the Essential Commodities Act has come up for consideration in this appeal. 2. The challenge in this appeal is to the conviction and sentence imposed by the learned Additional District and Sessions Judge cum Special Court for Essential Commodities Act Cases, Coimbatore in S.T.C.No. 3 of 2011 wherein the Special Court has convicted the appellant for the offence under Clause 4 of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order 1977 read with Section 7 (1)(a)((ii) of Essential Commodities Act 1955 and sentenced him to undergo S.I for three months and to pay a fine of Rs.3,000/- in default to undergo S.I for 2 months. 3. The case of the prosecution is that the appellant had obtained license for the manufacture of cattle feed at Thindal village, and the same was functioning in the name and style of "Star Mill". On 23.02.1994, the Inspector of Police, CS CID, Erode https://hcservices.ecourts.gov.in/hcservices/ inspected the premises of the said Mill and according to him, he found adulterated Coffee Powder and Tea Powder with Cashew husk powder. Therefore, the prosecution was launched after following the legal formalities against the petitioner for having adulterated tea powder as well as coffee powder with cashew husk powder. The petitioner denied the accusation. 4. During trial, on the side of the prosecution as many as 14 witnesses were examined and 27 documents were exhibited besides 24 material objects. 5. Before the trial Court it was mainly contended by the appellant that 'tea' and 'coffee' are not foodstuff as stated in Section 2 of the Essential Commodities Act and therefore, the prosecution under the said Act is not sustainable. For this proposition, before the trial Court, the appellant placed reliance on the judgment of the Supreme Court in S.Samuel M.D.Harrisons Malayalam and another VS Union of India reported in AIR 2005 Supreme Court 218 wherein the Hon'ble Supreme Court has held that Tea is not a foodstuff. Consequently, the Honble Supreme Court held that the Tamil Nadu Scheduled Articles (Prescription of Standards) 1977 is ultra virus to the power of the State Government to the extent to which it makes the provisions in relation to Tea. Based on the same, the trial Court acquitted the appellant in respect of the accusation relating to adulteration of Tea. But in respect of Coffee, the trial Court convicted the appellant and that is how, the appellant is before this Court with the appeal. 6. The learned counsel for the appellant would again rely on the decision of the Hon'ble Supreme Court in Samuel's case cited supra to submit that 'Coffee' and 'Tea' are more or less equivalent and they are only beverages and therefore, 'Coffee' also cannot be a foodstuff as stated under Section 2 of the Essential Commodities Act and thus, it is not an essential commodity as defined in this Act. The learned counsel has relied on a judgment of this Court (Hon'ble Judge S.Ashok Kumar) in S.P.Jaswanth Kumar and two others Vs State rep. By Inspector of Police, Civil Supplies C.I.D. Coimbatore reported in 2006-3-L.W (Crl) 617 wherein relying on the said judgment of the Hon'ble Supreme Court cited supra, the learned Judge has held that 'Tea' is not a foodstuff and therefore, the conviction of the accused under the Essential Commodities Act is not sustainable. 7. The learned counsel would rely on yet another judgment of the Andhra Pradesh High Court (Division Bench) in Brooke bond India Ltd VS Union of India and others reported in 1984 (15) E.L.T.32 (A.P.) wherein in paragraph 82 and 83, the Division Bench has held as follows: "Thus on an integral reading of Item No.2 relating to coffee, Item No.1B relating to the food of particular https://hcservices.ecourts.gov.in/hcservices/ kind mentioned therein, Item No.1C relating to food products of particular kind mentioned therein, the residuary Item No.68 of the First Schedule and the exemption notification in question, the Legislative intent is made amply clear namely that it did not want "Coffee" or Coffee-Chicory Mixture" to be treated as "Food" or "Food Product" or "Food Preparation" and to be exempt from the levy of excise duty under the exemption notification. In the light of the foregoing discussion, we hold that item "Coffee" is not an article of "Food" and that "Coffee-chicory Mixture" is not an article of "Food Product" or "Food Preparation" mentioned in the exemption notification issued by the Central Government under Item No.68 of the First Schedule of Central Excise and Salt Act, 1944. We have already held above that the "Coffee-chicory Mixture" commercially called "French Coffee" is a distinct commercial commodity differing in identity from the two ingredients constituting the mixture and that it falls under Item No.68 of the First Schedule and hence,liable to levy of excise duty in the manner taxed by the Department." Thus, the Division Bench has held in the said judgment that "Coffee" is not a foodstuff as defined under the Essential Commodities Act. 8. I have considered the above submissions. At the outset, I have to state that as defined in Section 2 of the Essential commodities Act, food stuff is an essential commodity. But, the Act does not define the expression "Food Stuff". Now, the question is as to whether 'Coffee' is a foodstuff so as to fall within the definition of an Essential Commodity. In the encyclopedia "Coffee" is defined as a brewed drink and the same is a beverage. The main ingredient of "Coffee" is caffeine. The stimulant effect of Coffee is due to its caffeine content. The caffeine contained in a cup of Coffee varies depending mainly on the brewing method and also on the variety of bean. Apart from caffeine, a cup of coffee contains the following ingredients:  brewed: 1 cup (7 oz, 207 ml) = 80-135 mg.  Drip:1 cup (7 oz, 207 ml + 115-175 mg.  Espresso: 1 shot (1.5-2oz,45-60 ml= 100 mg." 9. From the above data, it could be seen that "Coffee" is more or less equivalent to Tea. In this regard, I may refer to paragraphs 15, 16 and 17 of the judgment of the Honb'le Supreme Court in Samuel's case referred to above, wherein the Hon'ble Supreme Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. It is thus clear that in common parlance 'food' is something that is eaten. In a wider sense 'food' may include not only solid substances but also a drink. Still the fact remains that whether a solid or a liquid, the substance called 'food' should possess the quality to maintain life and its growth. It must have nutritive or nourishing value so as to enable the growth, repair or maintenance of the body. 16. The New Encyclopaedia Britannica (15th Edition Vol.25, page 49) states that functions of 'food' as under: "Functions of Food: Food serves three functions in most living organisms. First, it provides materials that are metaboloized either by oxidative or by fermentative processes to supply the energy required for the absorption and translocation of nutrients, for the synthesis of cell materials, for motality and locomotion, for excretion of waste products and for all other activities of the organisms. Second, food supplies the electron donors (reducing agents) required for the formation of the reduced co-enzymes (enzyme components) necessary for the synthetic processes that occur within the cell. Third, food provides the materials from which all of the structural and catalytic components of the living cell can be assembled by processes some called anabolism. The three roles of food are not mutually exclusive; energy yielding substances in many organisms may function in all three ways, and essential nutrients, if present in excess, may frequently be metabolized to supply energy. The essential precursors (i.e the substances from which other substances are formed) of cell materials can be divided into two groups- non-essential nutrients, which can be synthesized by the cell from other materials, and essential nutrients, which because they cannot be synthesized by the cell, must be supplied in foods. All of the inorganic materials required for growth, together with an assortment of organic compounds whose number may vary from one to 30 or more, depending on the organisam, fall into the latter category. Although organisms are able to synthesize non-essential nutrients, such nutrients are frequently utilized directly if present in food, thereby saving the organism the need to expend the energy required to synthesize them. 17. Having so understood the meaning of 'food', let us now see what is 'tea' and how it is understood in common parlance and by its consumers. The New Encyclopaedia Britannica (15 th Edition.Vol.11 page https://hcservices.ecourts.gov.in/hcservices/ 596) states that 'tea' is a beverage produced by steeping top leaves and buds of the tea plant.(Camellia sinensis of the family Theaceae) in freshly boiled water. 'Tea' is consumed as either a hot or a cold beverage by about one-half of the world's population.' Tea' contains only four calories per cup when consumed without added ingredients but is a source of several B- complex vitamins including B2 and Nicotinic acid. Caffeine is responsible for tea's stimulating effect. Flavour is produced by volatile oils and astringency and colour by tannin. Astringency and flavour development increase with length of the steeping period. Although some varieties produce colour quickly, satisfactory flavour development requires there to five minutes of steeping to achieve the desired maximum caffeine extraction and moderate amount of tannin. Dealing with 'beverages', the New Encyclopaedia Britannica (15 the Edition, Vol.25 page 58) States "Beverages. Although most adults drink one to two litres (about one to two quarts) of water a day, much of this is in the form of liquids such as coffee, tea, fruit juices, soft drinks, beer, wines, or spirits. In general, these are appreciated more for their taste or for their effect than for their nutritive value. Fruit juices are, of course, useful for their vitamin C content and good sources of pottassium while low in sodium. Coffee and tea by themselves are of no nutritive value, except that coffee contains some niacin and tea contains fluoride and manganese, but they may be a vehicle for intakes of sugar, milk or lemon." (Emphasis supplied) 10. It is not in dispute before this Court that as per Encyclopedia, "Coffee" is a beverage and the contents are more or less similar to that of "Tea". Thus, as held by the Hon'ble Supreme Court as well as a Division Bench of Andhra Pradesh High Court,"Coffee" cannot be stated to be a foodstuff to fall within the definition of Essential Commodity as defined in Section 2 of the Essential Commodities Act. 11. In such view of the matter, the conviction imposed on the appellant for having adulterated coffee powder with cashew husk powder cannot be sustained. At the same time, such persons who cause irrepairable health hazard to the common public out of greed for money cannot be allowed to escape from the clutches of law by taking such a technical ground. Such unscrupulous persons may be prosecuted for cheating and other offences for having adulterated the coffee powder with cashew husk powder so as to punish them according to law. https://hcservices.ecourts.gov.in/hcservices/ But, in this case, since there is no prosecution for cheating, this Court is helpless. 12. In the result, the appeal is allowed. The conviction and sentence imposed on the appellant by the judgment dated 13.10.2004 made in S.T.C.No.3 of 2001 on file of the learned Additional District and Sessions Judge cum Special Court for Essential Commodities Cases, Coimbatore is set aside and the appellant is acquitted. The fine amount, if paid shall be refunded to the appellant. The bil bond shall stand discharged. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pal To 1.The Additional District and Sessions Judge, cum-Special Court for Essential Commodities Cases, Coimbatore. 2. -Do-Thro The Principal Sessions Judge, Coimbatore 3. The Inspector of Police, Civil Supplies CID, Erode 4. The Public Prosecutor, High Court, Chennai. 1 cc To Mr.A.K.Kumarasamy, Advocate, SR.23025 Crl.A.No.1256 of 2004 KK(CO) sra 20/04/2011 https://hcservices.ecourts.gov.in/hcservices/