B.N. Sarma, J.
1. This Judgment will cover two Criminal Revisions namely, Criminal Revisions Nos. 11 and 12 of 1974, The petitioner in Criminal Revision No. 11 of 1974 - Shri Manindra Narayan Sen Gupta and the petitioner in Criminal Revision No. 12 of 1974 - Shri Sachindra Seal were convicted by the Additional District Magistrate (J), Goalpara at Dhubri under Section 16(1)(a)(i) read with Section 7 of the Food Adulteration Act, 1954 (hereinafter called 'the Act') in C.R. Case No. 1063 of 1972 and C.R. Case No. 1187 of 1972, respectively, by his judgments and orders dated 27-7-1973. Each of them was sentenced to R.I. for 6 months and also to pay a fine of Rs. 1000/- in default to R.I. for another six months. They preferred appeals before the Sessions Judge, Goalpara at Dhubri against the judgments and orders of the learned Additional District Magistrate, being Criminal Appeal No. 3 (3) of 1973 and Criminal Appeal No. 2 (3) of 1973, respectively. The learned Sessions Judge having dismissed the appeals by his separate judgments and orders dated 3-1-1974. the accused petitioners have come up with the present revision petitions. The facts in both the cases being exactly similar, I heard the two revision petitions together. The facts may be stated, in brief, as below.
2. The petitioners have got their separate grocery shops at Golakganj bazaar in Dhubri Sub-division of Goalpara District. On 25-6-1972 Shri N.N. Deka, Food Inspector, Dhubri (P.W. 1 in both the cases) accompanied by Shri Radha Nath Das, a peon (P.W. 2 in both the cases) inspected the shops of the petitioners and examined the articles of food exposed for sale, including mustard oil; but he did not suspect any of these articles to be adulterated. He then asked the petitioners if they had with them any other mustard oil. Each of the petitioners then brought out from another room in his shop house one sealed tin of 'Shankar Brand' mustard oil and produced before the Food Inspector (P.W. 1). According to the witnesses, other than P.W. 1, examined in the cases, including P.W. 2, the petitioners told P.W. 1 while producing the tins of mustard oil that these were not, for sale but were preserved by them to be used for lighting lamps at the time of Dewali festival. P.W. 1, however, denied this fact. Be that as it may, P.W. 1 purchased 600 ml. of oil from each of the petitioners from the said tins by way of samples on payment of Rs. 2.90 p. to each of them in presence of witnesses. He then divided the samples, in each case, into three parts in three bottles, gave one each to the petitioners and retained the other two with him, One of the samples retained, in each case, was sent to the Public Analyst, Shillong for examination. The Public Analyst found in his reports dated 24-8-1972 that linseed oil was present in the samples in both the cases in excessive quantity and that these were adulterated. The other ingredients in the samples were found according to the prescribed standard.
3. On the basis of the reports submitted by the Public Analyst the Food Inspector, after obtaining sanctions from the Civil Surgeon, Goalpara, launched prosecution against the petitioners under Section 16(1)(a)(i) read with Section 7 of the Act by filing two separate complaints before the Additional District Magistrate (J) at Dhubri. The learned A.D.M. framed charges against both the petitioners under the said sections for having stored adulterated mustard oil for sale.
4. Both the petitioners pleaded not guilty to the charges framed against them. In their defence the petitioners took various grounds. The main ground was that the tins of mustard oil, from which samples were taken, were not stored for sale. It was also contended, inter alia, that the provisions of Section 10(7) of the Act and of the Rule 18 of the Prevention of Food Adulteration Rules, 1955 (shortly the Rules) were not complied with by the Food Inspector. The learned A. D, M. held that the plea of the defence that the tins of mustard oil were preserved for Dewali and not intended for sale was unbelievable on the face of it. The other contentions were also negatived. In the result the petitioners were convicted and sentenced under Section 16(1)(a) read with Section 7 of the Act, as mentioned earlier. In appeals preferred by the petitioners, the learned Sessions Judge agreed with the findings of the trial Court. Relying on the decision of this Court in Bherudhan v. State AIR 1963 Assam 28 : 1963 (1) Cri LJ 349 he further held that it was not necessary for the prosecution to prove that the tins of mustard oil were stored for sale. According to him if the petitioners stored adulterated mustard oil, the offence was complete.
5. Mr. J.P. Bhattacharjee, the learned Counsel for the petitioners challenged the impugned judgments and orders in the two cases before me on the following grounds:
(i) that the mandatory provisions of Section 10(7) of the Act and of Rule 18 of the Rules were not complied with;
(ii) that the findings of the learned Courts below that the tins of mustard oil from which samples were taken were intended for sale by the petitioners are based on no evidence; and
(iii) that in deciding this question both the Courts below illegally placed the onus of proof on the accused petitioners.
6. Mr. C.R. De, the learned Counsel appearing for the State resisted all theses contentions. He further contended that even if the petitioners did not actually store the tins of mustard oil for sale, the Food Inspector having taken samples from the same on payment of price, the transactions amounted to sales within the meaning of Section 2 (xiii) of the Act, and the samples having been found to be adulterated the convictions and sentences of the petitioners under Section 16(1)(a)(i) read with Section 7 of the Act must be upheld on the score that they sold adulterated mustard oil.
7. The contention of Mr. Bhattacharjee that the provisions of Section 10(7) of the Act and of Rule 18 of the Rules were not complied with appears to be without any force. At the time of taking the samples from Sachindra Seal - the petitioner in Criminal Revision No. 12 of 1974, it is seen from the Notice in Form Vl (Ext. I) that besides P.W. 2 one Ayub Ali Bepari (P.W. 3) was present. While taking the sample from Manindra Narayan Sen Gupta, the petitioner in Criminal Revision No. 11 of 1974, none else except P.W. 2 Radha Nath Das appears to be present, from the notice in Form VI marked Ext. I. It was stated by P.W. 1 in the case against Manindra Narayan Sen Gupta that when he went to take sample from the shop of the accused, 2 or 3 persons were present there and that he asked them to be witnesses but they did not wait. Similarly in the case against Sachindra Seal, P.W. 2 Radha Nath Das stated in his cross-examination that at the time of taking sample 4/5 outsiders were present and they were asked by P.W. 1 to be witnesses but they did not agree. The direction contained in Section 10(7) to 'call one or more persons to be present at the time when such action is taken and take his or their signatures' is mandatory, no doubt. In the instant cases, when some persons were already present in the shops it was not necessary for the Food Inspector, in my opinion, to call any other witness. If the witnesses present did not co-operate, P.W. 1 could not help. In my opinion there was substantial compliance with the provisions of Section 10(7) of the Act in both the cases. Be that as it may, contravention of Section 10(7) does not 'per se' vitiate the prosecution. The essential test is one of prejudice to the accused. In the instant cases the fact that samples of mustard oil were taken from the petitioners and that these were found to be adulterated by the Public Analyst were not disputed before the trial Court. I do not think that any prejudice has been caused to the petitioners for non-compliance with the provisions of Section 10(7), even if there was any.
8. Similarly, I am not satisfied that there was non-compliance with the provisions of Rule 18 of the Rules, either. This Rule requires that 'a copy of the memorandum and the specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him,' Ext. 3 (in both cases) which is the memorandum required under Rule 17 shows that a copy of the specimen impression of the seal used to seal the packet of sample was separately sent by post. The report of the Public Analyst, in each case (Ext. 4), similarly discloses that the seals fixed on the containers of the samples tallied with the specimen impressions of the seals separately sent by the Food Inspector and the samples were in a condition fit for analysis. There was no cross-examination of P.W. 1 in this regard at all in any of the cases and it appears from the judgments of the trial Court that no grievance was made before him by any of the petitioners on this score, I, therefore, do not find any substance in this contention.
9. So far as the third ground is concerned, Mr. C.R. De the learned Counsel for the State submitted that the question as to whether or not the tins of mustard oil were intended for sale is a question of fact and that the concurrent findings of the Courts below on this point cannot be interfered with by this Court, in revision.
10. It is true that normally this Court would not go to interfere with any finding of fact in revision. But it is a settled law that if any finding is found to be perverse in the sense that it is based on no evidence, or when arriving at a finding the Court below illegally shifts the onus of proof to a party, the High Court can and indeed should interfere with such findings.
11. In the instant cases, admittedly the mustard oil in the two tins were not exposed for sale in the shops. If these were exposed for sale the inference that these were intended for sale would have been inescapable. There was mustard oil for sale in each of the shops but this was not suspected to be adulterated. From the evidence of PWs. 2 and 3 in C.R. Case No. 1087 and of P.W. 2 and D.W. 1 in C.R. Case No. 1063 it is seen that when asked by P.W. 1 if they had any other mustard oil with them, the petitioners told P.W. 1 that each of them had in his possession one tin of 'Shankai Brand' mustard oil but it was preserved by them for use in lighting lamps at the time of Dewali and not for sale. It is admitted by all the witnesses including P.W. 1 that these tins were kept in some other room in sealed condition and were brought out by the petitioners at the instance of P.W. 1. P.W. 2 and D.W. 1 in C.R. Case No. 1063 of 1972 further stated that the room from which the petitioner Manindra Sen Gupta brought out the tin was used for cooking and dwelling purpose by the accused. There is no evidence that there was any other tin containing such mustard oil; nor there is any evidence to show that any empty tin of Shankar Brand mustard oil was found in possession of the petitioners. If any more tins of similar oil were in their possession it could have been safely inferred that these were meant for sale. Similarly if empty tins of Shankar Brand Mustard oil were found if their possession it could have been legitimately inferred that the petitioners were in the habit of selling such oil. There is no evidence at all from the prosecution to prove that the petitioners used to sell such oil in the past. In the circumstances I agree with the learned Counsel for the petitioners that there is no evidence, in any of the oases, to support the finding of the learned Courts below that the tins of mustard oil in question were intended for sale.
12. From the mere fact that the petitioners are dealers in food stuff and that the tins were found in some other rooms of the shop houses, the learned Courts below jumped to the conclusion that the tins of mustard oil in question were for sale. At least in the case of the petitioner Manindra Sen Gupta, P. Ws, 2 and 3 admitted that the petitioner resides in the inner side of the shop house itself and that the tin was brought out from his dwelling room. Both the Courts below failed to consider this material evidence.
13. The Courts below appear to have shifted the onus of proof on this point to the petitioners. The learned A.D. M. has observed in both the judgments (both the judgments are in similar terms);
But whether the accused actually kept it for Dipanwita had to be proved by other evidence to that effect. A man with presence of mind or who had planned his action from before, would always come up with some plausible answer. But whether his claim is substantiated or not, has to be decided on the basis of evidence to that effect and not merely on the basis of what he had simply said or claimed.
14. Similarly, the learned Sessions Judge has observed in both his judgments:
So, evidently and presumably this tin of adulterated mustard oil was stored for sale and the defence failed to prove successfully that it was stored not for sale.
Both the Courts below have found that it is unbelievable that the petitioners, who are shop keepers would go to preserve the mustard oil in two tins to be used at the time of Dewali festival which was to come off about 4 months after,] keeping their money blocked.
15. The approach of the Courts below was evidently wrong and against the general principle of Criminal Jurisprudence. It is no doubt true that in a case under the Food Adulteration Act the prosecution need not prove the 'mens rea' of the accused; but as in any other criminal case, the onus to prove every essential ingredient of the offence against the accused lies on the prosecution. It is only when these are proved, the Court is required to examine the defence. As observed in In re: M. Rangarajulu Naidu AIR 1958 Mad 368 : 1958 Cri LJ 906:
When the explanation given by the accused on the face of it appears to be improbable, inadequate, unconvincing, contradictory or a manifest after-thought, even then the failure of the accused's explanation getting no importance attached to it would render the prosecution case no more stronger and the prosecution must affirmatively establish the guilt of the accused.
Be that as it may, in the circumstances of the case as mentioned above, the explanation given by the petitioners can neither be said to be the after-thought nor to be improbable on the face of it.
16. The learned Sessions Judge, relying on the decision of this Court in Bherudhan v. State AIR 1963 Assam 28 : 1963 (1) Cri LJ 349 has observed that the mere fact that the petitioners stored adulterated mustard oil is sufficient to sustain their conviction; it is not necessary for the prosecution to prove that the oil in question was intended for sale. In that case this Court observed:
In Sections 7 and 16 the word 'store' is not qualified and if ghee is stored, the offence is complete. It is not necessary for the prosecution to prove that it is stored with a view to sell it in future.
17. In a recent decision in Delhi Municipality v. L.N. Tandon : 1976CriLJ547 the Supreme Court after considering the provisions of Sections 7, 10 and 16 of the Act observed as below:
From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms 'store' and 'distribute' take their colour from the context and the collocation of words in which they occur in Sections 7 and 16, 'Storage' or 'distribution' of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section. That this is the right construction of the terms 'store' and 'distribute' in Section 16(1) will be further clear from a reference to Section 10. Under that section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the sub-clauses of Sub-section (1)(a) or Sub-section (2). The three sub-clauses of Sub-section (1)(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is 'manufactured' 'stored' or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred in Sub-sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon.
(Underlining is mine)
In short, the expression 'store' in Section 7 means 'storing for sale' and consequently storing of adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a).
18. In view of the above decision of the Supreme Court, the decision of this Court in Bherudhan v. State 1963 (1) Cri LJ 349 (Assam) (supra) can no longer be said to be good law.
19. Mr. C.R. De. the learned Counsel Eor the State submitted before me that even if the mustard oil in question was not intended for sale and for that reason the petitioners cannot be convicted for storing adulterated mustard oil, their conviction under Section 16(1)(a) read with Section 7 of the Act cannot but be upheld in view of the fact that the Food Inspector took samples of mustard oil from them on payment of the price thereof which amounted to sale within the meaning of Section 2(xiii) of the Act. According to Mr. De, when once the article of food is sold to the Food Inspector for analysis, it is of no consequence that the said article was not intended to be sold by the accused, as a sale of article of food under the Act attracts all the consequences that follow from such sales as provided under the Act. In support of this contention he relied on the decisions of the Supreme Court in Food Inspector, Callicut v. C. Gopalan : 1971CriLJ1277 and Mohd. Yamin v. State of U.P. : 1972CriLJ1198 .
20. In the case of C. Gopalan 1971 Cri LJ 1277 (SC) (supra), the respondents were the owners and licensees of a tea stall at Calicut. On November 17, 1965 the Food Inspector, Calicut Corporation purchased from the first respondent 600 grams of sugar for analysis from the stock of Sugar in the premises to be used for the preparation of tea, sold to customers in the tea stall run by the second respondent under the license issued by the Corporation. One portion of the sample was sent to the Public Analyst for analysis. The Analyst certified that the sugar was adulterated. On the basis of the report of the Public Analyst the respondents were prosecuted under Section 16(1)(a)(i) read with Section 7 of the Act for having sold adulterated sugar. Both the accused pleaded not guilty. They took the plea, inter alia, that they were not dealers in sugar and that the sugar was not intended to be sold as such. The trial Court as well as the High Court accepted the contention of the accused and acquitted them. The Supreme Court in appeal set aside the judgment of acquittal of the Courts below, after considering various decisions on the point, observing inter alia, as below:
To sum up we are in agreement with the decisions in : AIR1964All199 and : AIR1965Mad98 to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under Section 16(1)(a)(i) read with Section 7 of the Act.
We are not inclined to agree with the decisions laying the contrary propositions.
One of the decisions laying down the contrary proposition was Public Prosecutor v. Kandasamy Reddiar : AIR1959Mad333 . In this case the trial Court as well as the High Court acquitted the accused holding that he was carrying the milk taking from his own buffalow for his own use and not for sale. The Supreme Court did not approve of this decision and observed as below:
But it must be stated that the said decision does not consider the legal effect of a sale to a Food Inspector under the Act and its consequences. But we may point out that under Section 10(i)(a) the Food Inspector has got power to take samples of any article of food from the persons enumerated in sub-clauses (i) to (iii). It will be seen in particular from sub-clause (ii) of Sub-section (1)(a) that the Food Inspector can take samples from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee.
21. In Mohd. Yamin's case 1972 Cri LJ 1198 (SC) (supra) the Food Inspector purchased li seer of Shakkar from the appellant by way of sample after paying its price. The stock of shakkar belonged to the appellant. After due formalities were observed a part of the sample was sent by the Food Inspector to the Public Analyst for examination. The Public Analyst reported that the ehakkar was adulterated. On the basis of the report of the Public Analyst the appellant was prosecuted for an offence under Section 16 read with Section 7 of the Act for having stored adulterated shakkar, for sale. The plea taken by the accused in his trial was that the shakkar was not for sale. His case was that he was mixing extraneous matters with shakkar for converting it into Rab and as such it could not be said that the shakkar was stored for sale. The accused was convicted by the trial Court, but acquitted in appeal by the Sessions Judge. In an appeal filed by the Municipal Board concerned against the Judgment and order of the Sessions Judge the High Court held, inter alia, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of Section 2(xiii) of the Act and that the Food Inspector had power under the Act to get the sample even if the shakkar was stored for manufacture of Rab and not for sale. In this view of the case the High Court restored the order of the Magistrate, convicting and sentencing the appellant, as aforesaid. The Supreme Court in appeal by the accused upheld the order of the High Court with the following observation:
The finding of the High Court is that the shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the shakkar as an article of food after mixing shalbhari with it. We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar not for sale but for manufacturing Rab out of it, what follows? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale or for manufacturing Rab out of it, provided the appellant has sold it. And a sale to the Food Inspector is a sale for the purpose of Section 16 of the Act. In the Food Inspector, Calicut Corporation v. Charukattil Gopalan : 1971CriLJ1277 this Court held that if any articles of food are sold by any person, whether he is a dealer in them or not, and if the food is adulterated, he is liable to be convicted under Section 16 read with Section 7 of the Act. The respondents before this Court in that case were the manager owners of a tea stall.
22. We have already noticed the decision of the Supreme Court in Delhi Municipality v. L.N. Tandon : 1976CriLJ547 . It has been held in that case that if an article of food is not intended for sale and is in possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale, such as is referred to in Sub-sections (1)(a) and (2) of the Section, the Food Inspector will not be competent under the law to take any sample and on such sample being found adulterated, to validly launch prosecution thereon.
23. The decisions in Food Inspector, Calicut v. C. Gopalan : 1971CriLJ1277 as well in Mohd. Yamin v. State of U.P. : 1972CriLJ1198 are of a Bench of two Judges. The decision in Delhi Municipality v. L.N. Tandon 1976 Cri LJ 547 (SC) Is a decision of a Bench of three Judges. Moreover L.N. Tandon's case is a later decision. It is seen from the decision in this case (Tandon's case) that the Food Inspector is not competent under the law to take sample from any article not intended for sale and to launch prosecution if the sample so taken is found to be adulterated. That being the position, in the instant case, the prosecution having failed to establish by any cogent and reliable evidence that the tins of Shankar Brand mustard oil in question were intended for sale by the petitioners, the Food Inspector was not competent to take any sample from the said tins and to launch prosecution against the petitioners even if such sample was found to be adulterated. If the Food Inspector was not competent under the law to take samples from those tins, the alleged sale to him for the purpose of analysis, could not amount to sale within the meaning of Section 2(xiii) of the Act. That being the position, the conviction of the petitioners under Section 16(1)(a) read with Section 7 of the Act. cannot be upheld on the score that they sold adulterated mustard oil to the Food Inspector.
24. As a result of the foregoing discussion, I find that in the absence of any proof that the tins of Shankar Brand mustard oil were intended for sale, the petitioners cannot be convicted under Section 16(1)(a) read with Section 7 of the Act, either for storing same or for sale to the Food Inspector for anlysis.
25. In the result both the revision petitions are allowed and the Rules are made absolute. The conviction and sentence of both the petitioners under Section 16(1)(a) read with Section 7 of the Act are set aside and they are acquitted of the charges framed against them.