Skip to content


State Vs. Shankar Dnyanoba Gambhire and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1197 of 1963 with Cr. Appln. No. 623 of 1963
Judge
Reported inAIR1965Bom17; (1964)66BOMLR446; 1965CriLJ145; ILR1964Bom707
ActsPrevention of Food Adulteration Act, 1954 - Sections 2, 7(1), 16(1) and 20(1)
AppellantState
RespondentShankar Dnyanoba Gambhire and anr.
Appellant AdvocateC.C. Vaidya, Asstt. Goveronment Pleader;T.B. Deshpande, Adv.
Respondent AdvocateM.K. Joshi, Adv.
Excerpt:
.....adulterated article was sold as article of food--validity of sanction to prosecute given to chief food inspector by standing committee authorised by local authority to sanction prosecutions under act.;for the purpose of contravention of section 7(i) of the prevention of food adulteration act, 1954, it is sufficient if the object or the article sold happens to be an article of food and the article is found to be adulterated. it is not necessary for the prosecution to establish that a particular article was sold or purchased for the express purpose of using it as food.;state v. binjraj punamchand marwadi (1950) criminal appeal no. 586 of 1950, decided by bavdekar and dixit jj., on november 16, 1950 (unrep.), state v. uttamchand hazarimal (1963) criminal appeal no. 230 of 1963, decided by..........on his business in shop no.128, situate at moraji peth, sholapur, n.r. deshpande, who is the food inspector appointed by the municipal borough of sholapur, visited his shop on 18-12-63 and called upon the accused to sell him 300 ml. of coconut oil for the purpose of analysis. accordingly, the accused sell him the said quantity. the food inspector paid him the price, which was rs.1.12 np. and the accused passed a receipt in respect of the same. the food inspector then divided the oil in three parts, handed over one part to the accused and retained two parts with himself. the accused passed a receipt in respect of having received the bottle given by the good inspector to him. the food inspector then sent one sample bottle to the public analyst for the purpose of analysis. the report.....
Judgment:

Naik, J.

(1) This is an appeal by the State from an order of acquittal. The accused is a dealer in edible oil and carries on his business in shop No.128, situate at Moraji Peth, Sholapur, N.R. Deshpande, who is the Food Inspector appointed by the Municipal Borough of Sholapur, visited his shop on 18-12-63 and called upon the accused to sell him 300 ml. of coconut oil for the purpose of analysis. Accordingly, the accused sell him the said quantity. The Food Inspector paid him the price, which was Rs.1.12 nP. and the accused passed a receipt in respect of the same. The Food Inspector then divided the oil in three parts, handed over one part to the accused and retained two parts with himself. The accused passed a receipt in respect of having received the bottle given by the Good Inspector to him. The Food Inspector then sent one sample bottle to the Public Analyst for the purpose of analysis. The report of the Public Analyst dated 6th March 1963 is at Ex. 13. The Analyst found that the coconut oil contained 45.3% of mineral oil and that the same did not conform to the standard of coconut oil prescribed under the Rules. The Sholapur Municipal Borough had passed a resolution as far back as 21-3-59 delegating power to the Standing Committee to given sanction for the prosecutions under the Prevention of Food Adulteration Act (hereinafter referred to as the Act). Accordingly on 28-3-63 the Standing Committee passed a resolution (Ex. 14) authorising the Chief Food Inspector to lodge the complaint against the accused. On 15-4-63 T.B. Deshpande, the Chief Food Inspector lodged a complaint against the accused under S. r6(I)(a)(I) of the Act.

(2) The accused pleaded not guilty to the charge. According to him, he had purchased a sealed tin of coconut oil from one Kishanlal Sagar of Sholapur and that the oil was meant for application to hair. He suggested that he was not aware as to whether the oil inside the tin was adulterated or not. He further contended that no panch was present at the time of purchase of the oil by the Food Inspector. He also denied that the bottle were sealed in his presence. He admitted having signed the receipt, but, according to him, the receipt was signed by him at the suggestion of the Food Inspector. The accused went so far as to say that he had shown the bills (Exh. 3A) to the Food Inspector and told him that the oil was meant for application to hair.

(3) It appears that in the course of the argument, it was contended on behalf of the defence that T.B. Deshpande, the Chief Food Inspector, was not properly authorised to lodge the complaint and, therefore, the court was not competent to take cognizance of the offence.

(4) The trying Magistrate held in favour of the prosecution on all the points except the point relating to proper authorisation for lodging the complaint. He held that the Standing Committee had no power to delegate the authority, which was delegated to it by the General Body of the Municipal Borough. He also held that since the name of the Chief Food Inspector was not mentioned in the resolution, the authorisation was not valid and it was not open to T.B. Deshpande to lodge the complaint. Consequently, he acquitted the accused. It is against that decision that the State has preferred the present appeal.

(5) The appeal was heard by our learned brother, Tambe J. in the first instance and he has referred the appeal to the Division Bench on the question as to whether it is incumbent on the Prosecution to positively establish that the alleged adulterated article was sold as an article of food under the Act of 1954.

(6) Before dealing with the question referred to the Division Bench by our learned brother, Tambe J., it would be convenient to dispose of the question about the validity of the sanction or which the trial Magistrate has recorded a finding against the prosecution. Section 20 of the Act provides : (material part quoted) -

'(I) No Prosecution for an offence under thus Act shall be instituted except by or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or local authority.'

Analysing the section, it would be noticed that the written consent contemplated by this section can be given by one of the four following authorities :-

(1) the State Government,

(2) the local authority,

(3) a person authorised by the State Government,

(4) a person authorised by the local authority.

In the present case, the Municipal Borough of Sholapur, which is the local authority, he authorised the Standing Committee to sanction prosecution under the Act and the Standing Committee in its turn gave written consent to the Chief Food Inspector to launch the prosecution. It was contended that this amounts to delegation by a delegate and therefore the authorisation is invalid. We are unable to accept this argument. All that is necessary under S. 20 of the Act is that there should be written consent of the proper authority. In the present case, we have to see whether the local authority had given its written consent to the institution of the prosecution. The Standing Committee has given express authority to the Chief Food Inspector to launch the prosecution. The General Body had given standing authorisation to the Standing Committee to give written consent. There is nothing in section 20 of the Act of suggest that the delegation of authority by the Standing Committee is in any way invalid or is vitiated. In State v. Parshottam Kanaiyalal, 60 Bom LR 442 : (AIR 1960 Bom 244) the Baroda Municipal Borough had authorised the Chief Officer and the Health Officer by a resolution allowing them permission to file complaints for offence under the Act. The Chief Officer in his turn accorded sanction for prosecution the accused. In accordance with the authorisation the Food Inspector lodged the complaint. It was held that the written consent can be given not only by the State Government but also by the local authority or a person duly authorised either by the State Government or the local authority in that behalf. It was further held that the Chief Officer was a person who had been duly authorised by the local authority to accord sanction and it was in exercise of this authority vested in him, that he gave sanction for the prosecution of the accused.

(7) In the same decision, however, it was held that the authorisation was not valid inasmuch as the person to whom the authority was given was not named. The trail Magistrate has followed this decision and has come to the conclusion that since the name of T.B. Deshpande was not mentioned in the resolution passed by the Standing Committee, the said Deshpande had no authority to launch the prosecution. The decision reported in Parshottam's case, 60 Bom LR 441 : (AIR 1960 Bom 244) has, however, been overruled by the Supreme Court, so far as the question of authorisation by name is concerned, in State of Bombay . Parshottam Kanaiyalal, : [1961]1SCR458 . On the first part, viz., as to how the authorisation for lodging, has upheld the view taken by this Court. At page 2, paragraph (7), the Supreme Court has dealt with the question as to whether the authorisation must be eo nomine and it has held that authorisation by name is not necessary since the specification of the name of the complaint is not one of the statutory requirements.

(8) That taken us to the question that has been referred to the Division Bench viz., as to whether it is necessary to establish that the adulterated article was sold as an article of food. This question has a bearing upon the defence that was raised in the trial Court on behalf of the accused. It would be recalled that in his statement the accused suggested that he had purchased the coconut oil from one Kishanlal Sagar for the purpose of selling the same as hair oil and not for consumption. It is significant to note that at the time of the sale to the Food Inspector, the accused did not suggested that he was selling the oil merely for the purpose of external application. On the other hand, in the notice issued by the Food Inspector on the date of purchase (Ex. 9), it is specifically stated :

'Today I purchase the following food article (Coconut oil 300 ml) for analysis by the Public Analyser.'

Even in the receipt (Ex. 10), which the accused had passed, it is not suggested that the coconut oil was sold by him or was meant to be sold by him for external application. It is in this background that we have to examine the legal provisions bearing upon this question. Section 2(v) of the Act defines 'food' to mean.

'any article used as food or drink-for human consumption other than drugs and water and includes, (a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and (b) any flavouring matter of condiment.'

The word 'sale' is defined in S. 2(xiii) of the Act as meaning the sale of any article of food for human consumption or use of for analysis. Section 10 of the Act, which relates to powers of Food Inspector, authorises any Food Inspector to enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take sample of such articles of food for analaysis.

(9) Section 7 of the Act provides :-

'No person shall himself or by any person on his behalf manufacture for sale, or store, or distribute -

(I) any adulterated food:

(ii) any misbranded food:

(iii) any article of food for the sale of which a licence is prescribed :

(iv) and (v) xx xx '.

Section 16 of the Act lays down the penalties for the contravention of the provisions of the Act. It would thus be seen that what is required to be proved by the prosecution is whether the accused has sold any adulterated article of food. It is contended on behalf of the accused that the prosecution must establish that the accused intended to sell the article, which be actually sold, as food. In our view, there is no substance in this contention. All that the prosecution need prove is :

(a) a sale has taken place, and

(b) the same is the sale of an article of food,

The question of the intention of the seller is, in our view, entirely irrelevant for the purpose of contravention of S. 7(I) of the Act. It is sufficient if the object or the article sold happens to be an article of food and article is found to be adulterated. So far as the first ingredient of S. 7(I) is concerned, by definition itself sale for analysis is a sale within the meaning of the provisions of the Act. So far as the second ingredient is concerned, we have to turn to the definition of 'food'. We have already referred to the definition of 'food' contained in S. 2(v) of the Act. Under the primary definition of 'food' any article used under the inclusive definition (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any flavouring matter or condiments would fall within the category of food. Therefore all that is necessary for the prosecution to prove is whether the coconut oil falls within either the primary definition or the inclusive definition of S. 2(v) of the Act.

(10) Part III of the Prevention of Food Adulteration Rules 1955, relates to definition and standards of quality of food. Rule 5 provides :

'Standards of quality of the various articles to edible oils. Coconut oil falls in the very first species of this category and the standard of chemical composition has been specified in that rule. It is thus clear that coconut oil is considered as food. The definition of 'food', in our view, is very wide and includes any article which ordinarily enters into or is used in the composition or preparation of human is used in the composition or preparation of human food. It also includes any flavouring matter of condiments. It is undisputed that the coconut condiments. It is undisputed that the coconut oil, which is a species of edible oil, can enter into the preparation of food for human consumption. It is not necessary for the prosecution to establish that a particular article was sold or purchased for the express purpose of using it as food. In this connection, it is sufficient to point out that this Court has consistently taken the view adumbrated above in a number of cases. For instance, we may refer to the judgment of a Division Bench is State v. Binjraj Punamchand, (Cri. Appeal No.586 of 1960 (Bom) Bavdekar and Dixit JJ). judgment in State v. Vasant Shivram (Cri Appeal No.1807 of 1962 (Bom) Naik J.).

(11) The result is that the appeal is allowed, the order of acquittal is set aside and the accused is convicted under S. 16(I)(a)(I) read with S. 7(I) of the Act and sentenced to undergo rigorcus imprisonment for one month and to pay a fine of Rs.200. In default of payment of fine, the accused to undergo rigorous imprisonment for fifteen days. Warrant for the arrest of the accused to issue.

(12) Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //