1. Respondents Nos. 1 to 5 in this appeal are partners of a firm which is added as Respondent No. 6 and are carrying on the business of Kirana at Yeola in Nasik District. On 6th of December 1972 the Food Inspector of Yeola Municipality visited their shop and purchased 750 grams of Tur Dal for the purpose of analysis. At the time of this sale accused No. 2 was in charge of the shop. 750 grams of Tur Dal purchased by the Food Inspector were divided into three parts and after taking the necessary steps prescribed under the Prevention of Food Adulteration Act and the Rules made thereunder one part was sent to the Public Analyst on 8th of December 1972. The report of the Public Analyst dated 31st January 1973 was received by the Food Inspector on 3rd February 1973 and it showed that the sample analysed by him contained 13% Lakh Dal which is a commodity the sale of which is banned under Rule 44-A of the Prevention of Food Adulteration Rules. On 6th of June 1973 a complaint was filed in the Court against the respondents charging them with the offences punishable under the provisions of the Food Adulteration Act. hereinafter referred to as 'the Act.' A copy of the report received from the Public Analyst was given to the respondents on 4th of August 1973. It may be added here that the respondents or any one of them did not make an application Under Section 13(2) of the Act for sending the sample with the Court to the Chemical Analvser.
2. The main charge against the respondents was that the statutory sale effected by them contravened the provisions of Rule 44-A of the Rules. That Rule inter alia provides that no person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale viz. Kesari gram or kesari dal or the product of either of them. In Clause (e) of Rule 44-A mixture of kesari dal and any other dal is mentioned which means that kesari dal along with any other dal is also a prohibited item of sale. The Government of Maharashtra by a Notification No. PFA 1060/D dated 15th November 1961 in the Gazette dated 23rd November 1861 brought Rule 44-A into force in the State of Maharashtra. If therefore it is proved that the respondents sold a mixture of lakh dal (which is called kesari dal in the rules) and any other dal then they would be guilty of contravention of Rule 44-A. The Public Analyst's report which is at Exh. 16 in this case mentions that the sample sent to him contained 13% of lakh dal and it further mentions that the Public Analyst was of the opinion that it was adulterated Under Section 2(i) (h) of the Act. Section 2(i) (h) mentions that if the article contains any poisonous or other ingredient which renders it injurious to health it shall be deemed to be adulterated within the meaning of Section 2(ia). Section 7 of the Act says that :
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute--
(i) any adulterated food ;
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.
The penal section however is Section 16 which as it stood prior to amendment in 1976 was as follows :--
16. Penalties.--(1) If any person--
(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food--
(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interests of public health ;
(ii) other than an article of food referred to in Sub-clause (i) in contravention of any of the provisions of this Act or of any rule made thereunder, or
(b) prevents a food inspector from taking a sample as authorised by this Act ; or
(c) prevents a food inspector from exercising any other power conferred on him by or under this Act ; or
(d) being a manufacturer of an article of food, has in his possession or in any of the premises occupied by him, any material which may be employed for the purpose of adulteration ; or
(e) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a Public Analyst or any extract thereof for the purpose of advertising any article of food ; or
(f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provision of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with a fine which shall not be less than one thousand rupees : Provided that--
(i) if the offence is under Sub-section (i) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2 or misbranded under Sub-clause (k) of Clause (ix) of that section ; or
(ii) if the offence is under Sub-clause (ii) of Clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
The respondents were on these facts prosecuted in the Court of Judicial Magistrate, First Class, at Yeola, in Criminal Case No. 250 of 1973 for offences punishable Under Section 16(1)(a) (i) and (ii) read with Section 2(i) (h) and Section 7(i) and (v)of the Act read with Rule 44-A.
3. The defence of the respondents was that not all of them were in charge of the shop when the sale was effected and that respondents Nos. 2 and 3 alone were working partners whereas the other respondents were sleeping partners It was also contended that they had stored the commodity from which sample was taken for selling it as cattle food and not for human consumption. It was also mentioned by them that they had purchased the same from Madhya Pradesh and were not aware that it contained any prohibited material. It must be mentioned that they did not challenge the contents of the report of the Public Analyst. The learned trial Magistrate by his judgment and order dated 19th November 1974 convicted all the accused of the offences with which they were charged and sentenced each of them to rigorous imprisonment for six months and to pay a fine of Rs. 1000/-. In default of the payment of fine, rigorous imprisonment for 15 days was also awarded.
4. The respondents preferred an appeal being Criminal Appeal No. 176 of 1974 which was heard and allowed by the learned Additional Sessions Judge of Nasik by his judgment and order dated 18th July 1975. In allowing the appeal and thus acquitting the respondents the learned Additional Sessions Judge took into consideration the fact that the Food Inspector in his evidence before the Court had not clearly mentioned that he took sample in dry bottles. He was also influenced by what, he regarded as an important fact that a copy of the report of the Public Analyst was given to the respondents on a very late date which, according to him, prejudiced the respondents in their defence. He also held that respondents Nos. 2 and 3 alone were in charge of the shop at the relevant time and the others would not be guilty of if it was held that the offence was proved.
5. Aggrieved by the aforesaid order of acquittal the State has preferred this appeal which has been supported before me by Mr. Solkar, the learned Public Prosecutor. Mr. Solkar strongly criticised the judgment of the learned Additional Sessions Judge by contending that in a case like the present one the question whether the bottles in which samples were collected were dry or not was totally irrelevant. The presence of moisture would not convert toor dal into lakh dal. He also pointed out that the learned Additional Sessions Judge has wrongly held that there was no compliance with what he regarded as mandatory provisions of law. The contentions of Mr. Solkar on these two points are well-founded and must be accepted. Indeed the learned Additional Sessions Judge himself was aware of the absurdity of insisting upon the dryness of the bottles while collecting the samples of toor dal which included some lakh dal when he says in paragraph 9 of his judgment as follow.--
I may add. however, that the non-observance of this mandatory rule might not have made much difference in the percentage of Lakh Dal found present in the sample in question to the extent of 13 per cent but still there was non-compliance with a mandatory provision of Rule14 as I have shown
There cannot be any alchemy in the moisture in the bottles which would convert toor dal into lakh dal. This ground on which the learned Additional Sessions Judge has acquitted the respondents is wholly unsustainable.
6. The learned Additional Sessions Judge again held that merely because respondents were given a copy of the report of the analysis long after it was received by the Food Inspector therev.was a deprivation of the respondents' right Under Section 13(2) of the Act to get the sample analysed by the Chemical Analyser. In the earlier part of this judgment I have mentioned the various dates involved in this case. Exh. 15 which is a covering letter addressed to the Public Analyst and under which the sample was sent shows that it was sent on 8th of December 1972. The Public Analyst's report which is at Exh. 16 also shows that the analysis must have been made earlier than or on 31st January 1973. Rule 7 as it then stood required the public Analyst to analyse the sample sent to him and to send the report of the result of such analysis within a period of 60 days of the receipt of the sample. Indeed if we see the dates mentioned above it is clear that the period from the date on which the sample was taken to the date on which the report of the Public Analyst was actually received by the Food Inspector is less than 60 days. The learned Additional Sessions Judge noticed that the outer limit for sending the result of the analysis by Public Analyst to the Food Inspector was 60 days and therefore he could not give the benefit of the infraction of the rule as amended in 1974 to the respondents. He wrongly insisted that there was non-compliance as he saw it. I have been unable to find what was the rule or any other provision of the Act of which there was non-compliance.
7. The learned Additional Sessions Judge has further repeated that by the act of supplying the report to the respondents late the prosecution had deprived the respondents of their right Under Section 13(2) of the Act. This is wholly erroneous If there was no non-compliance with any mandatory provisions of the Act or Rules one cannot see how any right of the respondents was taken away. Indeed as it has been pointed out by the Supreme Court in Babulal Hargovindas v. State of Gujarat : 1971CriLJ1075 that the accused cannot complain of any delay on the part of the prosecution unless they have resorted to their right Under Section 13(2) of the Act. The order of acquittal passed by the learned Additional Sessions Judge on these two grounds therefore is erroneous and will have to be set aside.
8. Mr. Jethmalani, appearing for the respondents, did not seriously try to support the order of acquittal on the grounds on which the learned Additional Sessions Judge had relied. He however, sought to support the acquittal on other grounds. He says that the learned trial Magistrate was in error in holding that the respondents were guilty of selling adulterated food. Inviting my attention to the report of the Public Analyst at Exh. 16 he contended that the statement of the Public Analyst that he was of the opinion that the sample was adulterated Under Section 2(i)(h) of the Act read with Rule 44-A cannot be accepted in the absence of evidence before the Court that it was adulterated as mentioned therein. Section 13(5) of the Act allows reception of the report of the Public Analyst for the purpose of proving the facts stated therein and not for proving the opinion given therein. Section 2(i)(h) makes an article an adulterated one if it contains any poisonous or other ingredient which renders it injurious to health. There is no other evidence before the Court either through the testimony of the Food Inspector or in the form of the data in the report of the Public Analyst which can be said to have proved that the sample collected from the respondents was adulterated within the meaning of Section 2(i)(h). There is considerable force in this contention of Mr. Jethmalani. It is ultimately for the Court to decide whether a particular item is adulterated or not and the opinion expressed by the Public Analyst in his report cannot be binding upon the Courts. The report of the Public Analyst must mention the results of the analysis and other data or material which would enable the Court to decide whether a particular article was adulterated or not. It must, therefore be held that the respondents are not guilty of the offence of selling an adulterated food which is prohibited Under Section 1(i) of the Act.
9. That however does not end the difficulties in the way of Mr. Jethmalani because in the Court below the respondents were charged with contravention of not only Section 7(i) but also of Section 7(v) of the Act. If the respondents sold any article of food in contravention of Rule 44-A they would be guilty of contravening Section 7(v) of the Act. Rule 44-A as already mentioned prohibits the selling of lakh dal either alone or in a mixture with any other dal. In the instant case it has been established and it must be deemed to have been accepted by the accused by not challenging the contents of the report of the Public Analyst that the respondents sold a mixture of lakh dal and toor dal Mr. Jethmalani however says that even this does not result in contravention of Rule 44-A inasmuch as the respondents have not sold the product of which sample has been taken as a mixture of lakh dal and toor dal. His attempt was to show that the sale of a commodity as toor dal was not covered by Rule 44-A though it is found that it contained some percentage of lakh dal. It is impossible to accept this argument of Mr. Jethmalani. The contravention of a statutory rule like Rule 44-A does not depend upon the nomenclature under which a person sells a product. If Mr. Jethmalani's arguments were accepted the sale of lakh dal alone as toor dal would not be covered by Rule 44-A. Needless to say, such an interpretation of Rule 44-A would lead to absurd results. The sale of a commodity as toor dal but containing toor dal and lakh dal would clearly be in contravention of Rule 44-A because that is prohibited under Clause (e) of Rule 44-A. In my opinion therefore the statutory sale effected by the respondents on 6th December 1972 is clearly in violation of Rule 44-A read with Section 7(v) of the Act.
10. The next question is whether all of the first five respondents are guilty of the said offence which will be punishable Under Section 16(1)(a) (ii) of the Act as it then stood before its amendment in 1976. The question of penalising respondent No. 6 which was accused No. 6 in the Court below does not arise because it is a partnership firm consisting of other five respondents. In the trial Court the learned Magistrate refused to accept the plea of Respondents Nos. 1, 4 and 5 that they were not in the actual conduct of the business on the ground that they had not taken up that plea in their examination Under Section 342 of the Criminal Procedure Code and had put up that plea in the written statement filed later. In law however there is no bar to the accused filing a written statement even subsequent to their examination Under Section 342. A late assertion of a plea in the written statement may affect its evidentiary value but that itself is not a ground for rejecting it outright. In any case in a judgment delivered by Shimpi J. in the State of Maharashtra v. Pirumal Khushaldas it has been held that the prosecution must prove before convicting any partners of a firm that they were in charge of the business and were responsible in the conduct of the business which was carried on at the shop. Following this judgment I confirm the order of acquittal in respect of respondents Nos. 1, 4 and 5. It has been admitted position right from the trial Court that accused Nos. 2 and 3 were working partners and therefore they should be held liable for the offence which is now held to be proved.
11. As already mentioned above the offence which I have now held proved comes Under Section 16(1)(a) (ii) of the Act as it stood prior to the amendment of 1976. For the said offence the law as it then stood did not require compulsory imposition of a minimum term of imprisonment Looking to the facts and circumstances of this case I am of the opinion that the interest of justice would be met if I sentence respondents Nos. 2 and 3 to a fine of Rs. 1000/- each.
12. I therefore partly allow the appeal, set aside the order of acquittal passed by the learned Additional Sessions Judge of Nasik in Criminal Appeal No. 176 of 1974, convict respondents Nos. 2 and 3 (original accused Nos. 2 and 3) of the offence punishable Under Section 16(1)(a) (ii) read with Section 7(v) and Rule 44-A and sentence each of them to pay a fine of Rs. 1000/-. In default of payment of fine, each of them shall undergo rigorous imprisonment for three months. The order of acquittal in respect of Accused Nos. 1 and 4 to 6 is confirmed. Bail bonds of said accused stand cancelled.