K.N. Saikia, J.
1. In this Criminal Revision Application, the petitioner Shri Benoy Krishna Mukherjee, partner of Shri Guru Bhandar, Thangal Bazar, Imphal (hereinafter called 'the accused'), challenges the judgment 'dated 9-6-77, passed by the Sessions Judge, Manipur, in Criminal Appeal Case No. 11/75/5/75, confirming the order of conviction and sentence passed by the Chief Judicial Magistrate, in Criminal Complaint Case No. 1236 of 1974, convicting him under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.
2. The prosecution case is that on 5-1-1974, Shri Ch. Ibobi Singh, Food Inspector, entered the shop of M/s. Shri Guru Bhandar, Thangal Bazar, Imphal, and found sesame oil in an open tin exposed for sale and he purchased 375 grams from the accused, divided into 3 equal parts, put them in clean, dry and empty bottles, sealed and packed those according to rules in presence of the accused and witnesses and handed over one of the bottles to the accused. One sample bottle was sent to Public Analyst at Shillong and report bearing No. M/24/74 dated 12-3-1974 was received with the finding that the sample was of an adulterated sesame oil. Sanction was obtained from the Municipality and the accused was prosecuted .under Section 16(1)(a) of the Prevention of Food Adulteration Act, hereinafter referred to as 'the Act'. The accused pleaded not guilty to the charge taking plea that it was false. The Chief Judicial Magistrate, Manipur Central District, by his judgment dated 20-3-1975 holding that there was no defect or lacunae in prosecuting the accused as a vendor without the aid of Section 17, found the accused guilty and convicted and sentenced him to 21 years' R. I, and to pay a fine of Rs. 1,000/-, in default 4 months' R. I.
3. The accused appealed to the Sessions Judge, who held, inter alia, that the sanction given by the Imphal Municipal Board, did not suffer from any infirmity; that the non-mention of the adulterant was a mere irregularity and did not vitiate the trial; that the prosecution was done individually for selling adulterated sesame oil as the accused personally sold the sample and so he was tried as a vendor of the adulterated sesame oil without the aid of Section 17 of the Act, that the statement of the Food Inspector that he did not know if the' oil sample was sesame oil was immaterial; that the duty of the prosecution cannot go to the extent of proving that the oil found was meant for human consumption and the duty of the prosecution ended with the proof that the article was normally an article of food which was normally for human consumption. The appeal was partly allowed, the sentence being reduced from 2 1/2 years to 1 1/2 years' R. I. Hence, this revision petition.
4. Mr. R.K. Manisana Singh, the learned Counsel appearing for the accused submits, inter alia, that the accused being a partner, the prosecution being not in conformity with Section 17 of the Act, is bad in law; that the article seized is not sesame oil but 'silam taila' which is not food for human consumption; that the burden of proof was not discharged by the prosecution; that at any rate the punishment is too harsh.
5. Mr. N. Nabakumar Singh, the learned Counsel appearing for the Imphal Municipality, answers that the prosecution of the accused is as an individual vendor and merely described as a partner of M/s. Shri Guru Bhandar which is legal; that the sample, though described as silam taila, it can be nothing but sesame oil, which is an article of food and has been found to be adulterated by the Chemical Analyst, that the prosecution has proved the guilt beyond reasonable doubt; and that this revision is liable to be dismissed.
6. The learned Public Prosecutor appearing for the State of Manipur adopts all the arguments advanced by Mr. N. Nabakumar Singh.
7. The main questions rendered necessary to be decided are : (1) whether the prosecution of the accused, admittedly a partner of Messrs. Shri Guru Bhandar, purported to be done individually as vendor is according to law? (2) whether the sample collected is of sesame oil or 'silam taila'? (3) whether Analysis was done as such and the report can be acted upon? (4) whether the prosecution has proved the guilt beyond reasonable doubt? and (5) if conviction is found to be legal, whether = the sentence is harsh?
8. The first submission of the learned Counsel may be considered first. Section 17 of the Act provides:
17. Offences by companies. - (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence,
(2) Notwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other Officer of the Company, such Director, Manager, Secretary or other Officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. - For the purpose of this section -
(a) 'Company' means any body corporate, and includes a firm or other association of individuals; and
(b) 'Director' in relation to a firm means a partner in the firm.
9. It is clear that 'Company' for the purpose of this section includes 'firm'. The cash memo, obtained in this case reads as follows,
SHRI GURU BHANDER
GENERAL MERCHANTS &
THANGAL BAZAR, IMPHAL.
Ref. No.--------------Dated 5-1-1974.
375 grams Silam
-Taila @ 9/40 - - Rs. 3.52
(Rupees Three and Paise
Form No. IV also is in the name of Shri Benoy Krishna Mukherjee, Partner of M/s, Shri Guru Bhander, Than-gal Bazar (Fish Market) and says 'I have this day taken from the premises of Messrs. Shri Guru Bhander.'' Resolution No. 7 of the Imphal Municipal Board also mentions the sample as to have been collected from Shri Benoy Krishna Mukherjee, Partner of M/s. Shri Guru Bhander. From these it appears clear that M/s. Shri Guru Bhander is admittedly a firm of which the accused is a partner. Now the question is, when the sample was collected from the premises of the firm, whether the provisions of Section 17 must be followed or whether the prosecution of the partner under Section 7 of the Act as an individual without the aid of Section 17 is also permissible under law? Section 7 of the Act is in the following terms:
7. Prohibition of Manufacture, Sale, etc., of certain Articles of Food.- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interests of public health, or
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.
10. In the instant case, the learned Chief Judicial Magistrate held that though the accused was charged as a vendor without the aid of Section 17, there is no lacuna in prosecuting the accused, and in support the learned Magistrate referred to a passage in Assam LR (1973) Gauhati 169 Hanuman Prasad v. State of Assam, where His Lordship observed 'Had the petitioner personally sold the sample mustard oil to P. W. 1, he could have been prosecuted as a vendor without the aid of Section 17.' The learned Sessions Judge also observed that it was the intention of the prosecution to prosecute the appellant individually for his selling adulterated sesame oil and that though the appellant was described in the complaint petition as a partner of the said firm he had been tried as a vendor of the adulterated sesame oil without the aid of Section 17 of the Act. The case law on the point does not appear to be uniform.
11. In Public Prosecutor v. Nelluru Subrahmanyam : AIR1960AP584 , where the accused was the managing partner of the firm he was acquitted on the ground that the prosecution of the accused was barred by Section 17(2) of the Act, inasmuch as, it had not been established that the sale in question was made with the consent, or connivance of, or through the neglect of the accused who was being prosecuted as the Managing Director of the Company along with the company itself. It was also observed that there was absolutely no evidence placed to show that the accused had the knowledge that the adulterated food was there in the premises of the company. Since this necessary element of knowledge had not been shown to have existed there could be no question of the accused having consented to the sale of misbranded article or connived at that sale. It was thus clear that the most important ingredient necessary to connect the accused, who was only the Managing Director of the firm with activities of the firm was lacking. In : (1962)IILLJ443Cal Momtaz Begum v. The State, which was a case under the Employees' Provident Funds Act, 1952, Section 14-A of which is similar to Section 17 of the Food Adulteration Act, J. P. Mitter, J. observed as follows:
In my view, Sub-section (1) of Section 14-A makes it clear that it is incumbent upon the prosecution to prove that the Director concerned was in charge of, and was responsible to, the company for the conduct of the business of the company. It is only when that initial onus is discharged by the prosecution that there is any onus upon the person concerned to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. There is nothing in the petition of complaint to suggest that the petitioner was in charge of and was responsible to the company for the conduct of the business of the company. There is therefore no case against the petitioner to answer.
In : AIR1965All525 D.K. Jain v. The State, where sample of toned milk was purchased from a salesman at the stall, which was found to be adulterated with prohibited colouring material, the Commercial Manager of the Company and the Salesman were prosecuted and convicted. The conviction of the Commercial Manager was set aside in revision observing that a Company is a legal entity distinct from the members. It can hold and dispose of property, it can sue and be sued in its own rights. It would, therefore, have been more appropriate to have prosecuted the Company as well along with the salesman for the offence as is provided under Section 17(1) of the Act. Interpreting Section 17(2); of the Act, it was further observed:
A reading of the aforesaid sub-section makes it obvious that the Legislature has taken care to provide that natural persons made vicariously liable for the offence committed by a Company of anyone of its employees are to be punished only when it is established that they had some nexus with the crime either because of their connivance with it or due to their criminal negligence which had resulted in its commission. To make the applicant liable, therefore, for the offence committed by the company or its Salesman who was physically present on the scene, it must be proved that the offence was committed with his connivance. There is, however, no such evidence on the record.
In : AIR1966Ker190 , Food Inspector of Calicut Corporation v. Kanadagouri Hemanthlal Chowdgar, where the first accused sold sample and the second and third accused constituted a Company, it was observed:
So if the Ujay Ice Fruit Works is a company within the meaning of the term company, it is clear that under Sub-section (1) to Section 16, it is the duty of the prosecution to prove that the person sought to be made liable was in charge or was responsible to the company for the conduct of the business of the company. Unless this initial onus is discharged there is no onus Upon the accused as provided in the proviso to Sub-section (1) to Section 17. It is only when the person concerned is proved to have been in charge of or is proved to have been responsible for the company in the conduct of the business of the company that he is called upon to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. The only evidence led by the prosecution was that accused 2 and 3 were proprietors of the company. There was no evidence that they were in charge of or were responsible to the company for the conduct of the business of the company. That being so the acquittal of the accused 2 and 3 is proper.
In Sadhuram v. State : AIR1967MP122 , the applicants were 3 partners of a factory manufacturing linseed oil, found to be adulterated, and each of the 3 partners was convicted and it was found as a fact that Sadhuram was at the mills at that time, but the other two partners were not present, The view taken was that 'Once it is established that an individual is a member of a firm especially if it is small one, it would be for him to show that he had dissociated himself from the day to day conduct of the business.' - differing from the view taken in (1961) 65 Cal CW 1107, where it was observed that in the case of small partnerships where the partners are all local, it would be for the prosecution to show that the partner was in charge of or responsible for the conduct of the business. In such cases there is a presumption, unless the partner concerned shows that under the agreement or the modus operandi of the day to day affairs, he was not in charge of and was not responsible to the conduct of the company. It was further observed that to be in charge of or be responsible it does not at all require that the partner or director should be bodily present, charge or responsibility being something impalpable.
In Poison Ltd. v. Corporation of Calcutta : AIR1969Cal247 , where the appellant No. 1 M/s, Poison Ltd. and appellants Nos. 2 and 3, employees of the firm at Calcutta, appealed against their conviction under Section 16(1)(a)(i)/7(i) of the Act, the sample was taken from a sealed tin which along with other tins was kept in cold storage and the appellant No. 1 did not know that it was adulterated and the defence of appellants Nos. 2 and 3 was that they did not have anything to do with the manufacture of the ghee, which was done outside Calcutta; they were employees of the firm and were not responsible for the quality of the ghee or butter that was manufactured by the company, allowing the appeal and setting aside their conviction, it was held:
Appellants 2 and 3 may be in charge of the Calcutta office of the company as the persons in charge of and responsible to the company for the conduct of its business. They are initially liable under Section 17(1) of the Act. The proviso thereto states however that such person in charge will not be liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. The product of Poison & Co., comes from outside Calcutta in sealed tins as it appears from the material on record. Apparently appellants 2 and 3 have nothing to do with the manufacture thereof! They could therefore have had no knowledge about the method of manufacture nor could they, with the best of diligence, have prevented adulteration of the product if any. In the circumstances of the case, there is no justification for the conviction of appellants 2 and 3 at any rate.' In this case the excess moisture contained was held not to be excessive and appellant No. l was also acquitted. In B.K. Varma v. Corporation of Madras : AIR1971Mad40 , where the Plant Superintendent of the Southern Bottlers Private Ltd., manufacturer of the beverage-aerated water, known as Coca Cola was prosecuted, holding that the prosecution was bad and allowing the revision petition, and referring to Section 17, it was observed:
The prosecution, therefore, must have filed a complaint against the persons against whom they could proceed under Section 17(1) and (2) of the Act. It is, therefore, clear from the complaint itself that the revision petitioner has been prosecuted not in his individual capacity as a vendor but in the capacity of a person employed by the firm as the Plant Superintendent.
Observing that it was doubtful whether the revision petitioner was in charge of the firm in respect of the manufacturing or sale of Coca Cola, he was considered to be entitled to the benefit of doubt and was acquitted. In Hanuman Prasad Lohia v. State of Assam, Assam LR (1973) Gauhati 169, which is the case relied on by the Courts below here, the petitioner was a partner and the sample was taken from one Gangaram, an employee of the firm, in presence of the petitioner and both were prosecuted. His Lordship observed:
Admittedly the sample was not purchased from the petitioner. It was purchased from one Gangaram, an employee of the firm. The gravamen of the offence, so far as the petitioner is concerned, is that he is a partner of the firm M/s. Nagarmal Nandkishore and that the sample was purchased from Gangaram in his presence. Had the petitioner personally sold the sample mustard oil to P. W, 1, he could have been prosecuted as a vendor without the aid of Section 17. Now that he has been prosecuted only because he happens to be a partner of the firm and the sample was taken in his presence, he can only be made vicariously responsible under the provisions of Section 17 of the Act, which relates to the offence committed by the companies.
His Lordship further observed:
In the instant case, in the absence of any complaint against the firm, the prosecution of the petitioner as a partner was, in my opinion, bad in law. Even if it is held that there is no bar for prosecution of the petitioner without a complaint against the firm itself, the petitioner cannot be convicted of the offence he was charged with, unless there is evidence to prove that he was in charge of, and responsible to, the company for the business of the company at the time of commission of the offence.
12. The Supreme Court in Smt. Manibai v. State of Maharashtra : 1974CriLJ451 , where the appellants were convicted under Section 16(1)(a)(i) read with Section 7(1) of the Act, and where there was nothing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner and the sample was purchased from Pranjivan and not from Manibai, observed:
In this respect we find that Manibai was admittedly not present at the time the coconut oil was purchased by the Food Inspector Mahajan from Pranjivan accused. The High Court in the course of its Judgment has arrived at the finding that Manibai is not in charge of nor is she actually conducting the business carried on at the shoo from which the Food Inspector purchased the coconut oil. In the circumstances, the fact that Manibai is the licensee of the shop would not warrant her conviction.
Analysing Section 17 the Court observed:
There is nothing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. Even if it may be assigned that the business was owned by a firm or an association of Individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under Section 17(1) of the Act for the sale which was made by her son Pranjivan only if it 'was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop. There is no evidence to that effect on the record. In the absence of such evidence, no criminal liability for the sale of coconut oil by Pranjivan can be fastened on Manibai under the provisions of the Act.
In the case of Pranjivan, however, the conviction was upheld. This was not admittedly a case decided in light of Section 17 as there was nothing to show that it was a partnership firm.
13. In Durgamata Oil Mill v. Corporation of Calcutta 1978 Cri LJ. 222 (Cal), it was held that for conviction of a firm, it must be separately charged and its conviction without separate charge against it is bad in law. In Padam Chand Jain v. State 1978 Cri LJ NOG 170 (Delhi), it was held that participation of the accused himself in the business is necessary for invoking Section 17 and a person described in the partnership deed as a sleeping partner, cannot be said to have participated in the business only because he is enabled by the deed to inspect the accounts in the firm, In G. A. Atherton & Co. (Pvt.) Ltd. v. Corporation of Calcutta 1979 Cri LJ 85 (Cal), where the petitioner No. 1 was the company and No. 2 was its Chairman, and Nos. 3, 4, 5 and 6 were Directors and No. 7 was the Go-down Keeper, proceedings under the Act started against them for manufacturing the sample adulterated Horlicks, it was observed that under Section 17 a company has been made primarily liable, but to make other persons vicariously liable, it has to be shown that such persons were in charge of or were responsible to the company for the conduct of its day to day business. In the absence of any mention in the petition of complaint as to how the petitioners Nos. 2 to 7 were concerned in the carrying on of the day to day business of the company, process could hot have been issued against them. The learned Magistrate, m it was observed, obviously overlooked the provisions of Section 17 of the Act and issued process without bothering to go through the petition of complaint. The Division Bench accordingly quashed the proceedings against all the petitioners. In M. C. Arora v. Union of India 1979 Cri LJ 35-8, Division Bench of Delhi High Court, held:
Aggarwal Hotels Pvt. Ltd. are an incorporated company. A company has no body to be kicked and no soul to be damned. Therefore, the Director, in charge and responsible to the company for the conduct of the business at the time when the offence was committed can be held liable under Section 17 if the case is proved against the company.
14. On a conspectus of the above decisions the following general guidelines for prosecution emerge:
(1) Where it is not certain whether the offence is committed by a company the vendor may be prosecuted individually with such other persons as may be liable under Section 7 of the Act.
(2) : Once it is found that a company has committed the offence, the prosecution should take all the particulars and prosecute the company as primarily liable with its Directors, Partners Secretaries and Officers as would be vicariously liable under Section 17 of the Act, read with Section 7.
(3) The complaint petition must state as to how the comnany and each of the persons prosecuted is liable for the offence committed by the company as provided in Section 17 of the Act.
(4) The company and each of the person has to be separately charged.
(5) The prosecution must discharge the burden of proof against each of them when alone he will be put to defence.
(6) As the company is primarily liable and others are vicariously liable anyone successfully proving that at the time the offence was committed, he was not in charge of and not responsible to the company for the conduct of its business and the offence was not committed with his consent or connivance and was not attributable to his negligence, shall not be liable under Section 17.
(7) In case of a person coming under the purview of Section 17 it may be unjust to prosecute him as a vendor individually without . the aid of Section 17, for the act constituting the offence was not of his choosing but of the company or of one in charge of management of the business of the company and this he cannot show outside Section 17, and this may prejudice him. It is the company which is primarily liable, he is only one acting on behalf of the company and vicariously liable for it. He is not the vendor in real sense of the term.
The last proposition appears to be justified on the ground that once the business in course of which the offence is committed is found to belong to a company or firm, the company is primarily liable and the entire responsibility does not lie on the person found in flagrante delicto, for it is not his decision but of the company, and under such circumstances he cannot be treated as the vendor and if he is prosecuted without the aid of $,,17 and others are left out, the real person who was responsible for the offence may escape and as a result only the humblest employee of the company will be prosecuted for carrying out his duties. This will open up a wide door for company offenders to escape. Section 17 itself makes ample provision for his prosecution. On the other hand, the man who is found to have sold the sample is the surest of the offenders for the purpose of the prosecution and he cannot be allowed to escape in the absence of any others found liable for the offence. If he is also allowed to escape liability this statutory offence will find indulgence in law. Section 7 clearly provides:
No person shall himself manufacture for sale, or store, sell or distribute.
15. In the instant case, it is found hat the sample was sold by the accused and the Cash Memo dated 5-1-1974 was issued in the name of Shri Guru Bhander, General Merchants & Commission Agents, Thangal Bazar, Imphal, signed by the accused selling 375 grams of Silam Taila. Form No. IV says that a sample was taken from the premises of M/s. Shri Guru Bhander and is issued to the accused as partner of M/s. Shri Guru Bhander. The notice given to the accused was also as partner of M/s. Shri Guru Bhander. The resolution No. 7 according sanction also mentions the name of the accused as partner of M/s. Shri Guru Bhander. From this, there can be no doubt that it was known that M/s. Shri Guru Bhander is a firm of which the accused is a partner and the sample was collected from the shop of the firm and as Such the accused should not have been prosecuted without prosecuting the firm also. The prosecution of the accused as vendor without the aid of Section 17, though not illegal in view of Section 7, namely, 'no person by himself', it cannot be said to have been proper, inasmuch as, it was the firm which was primarily responsible and the accused being a partner thereof should have been prosecuted under Section 17. The complaint petition does not state as to whether he was in charge or responsible to the firm for conduct of its business or whether the sample was adulterated with his knowledge, consent or connivance, or the offence was attributable to his negligence. This being the position, if the prosecution did not discharge the burden of proof under Section 17, the accused could not have been put to answer. There is nothing in the complaint petition to show what was the nexus of the accused with adulteration of the article.
16. The next point urged on behalf of the accused is that the sample collected was not the sample of 'sesame oil' but of 'silam taila' which is a medicinal preparation not meant for food. The Cash Memo dated 5-1-74 mentions 375 grams 'silam taila'. The Form No. IV gives the details of food as follows:
After intimation to the vendor that I intend to collect sample of sesame oil (silam tel) which was kept exposed for sale in a tin in the shop premises for public analyst I purchased 373 grams of sesame oil (silam tel), etc.
In the memorandum to the Public Analyst, the nature of quantity of the sample is stated as 125 grams sesame oil (silam tel) and the report of the Public Analyst is on sample of 'sesame oil' without mentioning of 'silam tel'. In the deposition, P. W. 1 the Food Inspector, says that the accused is a partner of Shri Guru Bhander and deposes, 'I found 'Thoiding Angouba Oil' (sesame oil) in an open tin' x x x In cross-examination, he said 'I do not know if the oil sample is the sesame oil or not.' He admitted in cross-examination that in the shop 'Manahee', 'Uchithi', 'Chalmugra' medicinal oils were also sold. The learned Counsel appearing for the Imphal Municipality, states at the Bar that silam oil is not same as sesame oil and according to him it was only a mistake committed by the Food Inspector. That it was not a mistake is clear from the facts that while in the Cash Memo it was written simply 'salim taila', in Form No. IV, it was written sesame oil (silam tel) and so also in the memorandum sent to the Public Analyst, There appears to be no warrant for substituting or for equating 'silam taila' with sesame oil. At any rate, the Public Analyst does not mention anything of 'silam tel'. The learned Counsel for the accused submits that silam oil is a medicinal preparation and Thoiding Angouba is not the same as sesame. The submission may or may not be correct. However, this aspect of the matter does not appear to have been carefully examined by the learned Courts below and in view of the admission made by the learned Counsel for the Municipality and agreed to by the learned Counsel for the State, there is room for doubt as to whether 'silam tel' is the same as sesame oil. The report of the Public Analyst also showed that test for sesame oil shows positive; but the test for linseed oil shows strongly positive (80% approx.), but the report does not mention anything of silam tel. This raises doubt as to whether the sample collected was that of sesame oil or some different preparation known as (Silam Taila). There was no warrant for the Food Inspector to have equated silam taila with sesame oil. It was his duty to send for analysis by the same name he purchased the sample. Silam taila is not included in Appendix 'B'. 'Sample' as defined under Section 2(xiv), means a sample of any article of food taken under the provisions of this Act or any Rules made thereunder. It is not known whether silam taila is an article of food. Under the circumstances of the case, it cannot be said that a sample of food was collected according to law. It is true that offence of adulteration may be committed even in case of articles not included in Appendix 'B'. But that requires a recognised standard. In the instant case no such standard has been suggested. The adulterant has not also been mentioned. The accused is, therefore, entitled to benefit of doubt on this account.
17. As a result, the conviction and sentences of the accused are set aside. The petition is allowed. The rule is made absolute.