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State Vs. Ishwarlal Chhaganlal - Court Judgment

LegalCrystal Citation
SubjectFood adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1008 of 1956
Judge
Reported in(1957)59BOMLR146
AppellantState
Respondentishwarlal Chhaganlal
DispositionAppeal dismissed
Excerpt:
bombay prevention of adulteration act (bom. v of 1925), section 4(3)(a)-person selling article of food purchased by him under warranty that it is of nature, substance and quality which it purports to be-such purchaser whether protected under section 4(3)(a) if article not of nature, substance and quality it purports to be-whether words 'purchaser' and 'as agent' in section 4(3)(a) independent of each other.; if a seller purchases an article of food either for himself or as agent under a warranty that it is of the nature, substance and quality which it purports to be, his case would be covered by section 4(3)(a) of the bombay prevention of adulteration act, 1925, notwithstanding the fact that the article may ultimately turn out to be not of the nature, substance and quality which it..........the charges brought against him.. he contended that his business was to sell 'packed tins of ghee' purchased from mehmada-bad, nadiad, mahudha and other places. he further contended that he always took 'great care' to purchase pure ghee and sell it. according to him, the tin from which ghee was sold by him to the food inspector was purchased by him from dhulabhai shankarbhai of mahudha. he had told dhulabhai shankarbhai that he would not enter into transactions with his firm unless the firm sold pure ghee to him. he contended that he had purchased 'the ghee from dhulabbai shankarbhai under a warranty that the ghee was of the nature, substance and quality which it purported to be and that he had sold the ghee to the food inspector in the same state in which he had purchased it. he.....
Judgment:

Vyas, J.

1. This is an appeal by the State of Bombay from a judgment of the learned Sessions Judge, Surat, acquitting the respondent Ishwarlal Chhaganlal who was charged with having committed offences under Section 4, Sub-section (1), Clauses (a) and (b) of the Bombay Prevention of Adulteration Act, 1925. It raises a short question under the Bombay Prevention of Adulteration Act, 1925, and the question is as to the construction of the words 'purchased or obtained as agent' in Clause (a) of the proviso1 to Sub-section (3) of Section 4 of the Act. Do these words mean 'purchased as agent or obtained as agent' or do the words 'as agent' govern only the word 'obtained' and not the word 'purchased'? The learned Sessions Judge, who has ordered the acquittal of the respondent, has held that the word 'purchased' has no relation to the words 'as agent' and is not to be read in conjunction with those words. On the other hand, the State contends that the words 'as agent' are referable not only to the word 'obtained', but also to the word 'purchased' and they are to be read with both the words 'purchased' and 'obtained'.

2. The above-mentioned point of law has arisen in this way: The respondent was charged with having sold to the Food Inspector of the Surat Borough Municipality, to the prejudice of the said Food Inspector, an article of food purporting to be pure ghee, which was not in fact of the nature, substance or quality which it purported to be, and having exposed the said article for sale. The respondent is a partner in a firm which sells ghee at Surat. It is, not disputed that on April 28, 1953, the, Food Inspector of the Surat Borough Municipality visited the shop of the respondent's firm and purchased from the respondent three samples of ghee which were obtained in three different sets. It is also not disputed that two out of the three samples, which were purchased by the Food Inspector from the respondent, were samples of pure ghee. The prosecution contention is that the third sample, which was sample No. 41 and which was sold by the respondent to the Food Inspector, was adulterated ghee. It was sent to the Public Analyst, and the Public Analyst certified in respect of it that the Batyro Refractometer reading at 40 C was 46.5 and the Reichart Woolny value was 11.9. The Public Analyst further certified that the sample, which was submitted to him for examination, was adulterated ghee and that foreign fat was present in it to the extent of 52.6 per cent. Upon the basis of the above-mentioned certificate of the Public Analyst, the State contended that under Rule 6, Sub-rule (B), Clause (1), of the rules framed under Section 19 of the Bombay Prevention o Adulteration Act, 1925, a presumption should be raised against the respondent that the ghee sold by him to the Food Inspector was not of the nature, substance or quality which it purported to be. It was upon these facts that the respondent was prosecuted for offences under Section 4, Sub-section (1), Clauses (a) and (b) of the Bombay Prevention of Adulteration Act, 1925.

3. The respondent resisted the charges brought against him.. He contended that his business was to sell 'packed tins of ghee' purchased from Mehmada-bad, Nadiad, Mahudha and other places. He further contended that he always took 'great care' to purchase pure ghee and sell it. According to him, the tin from which ghee was sold by him to the Food Inspector was purchased by him from Dhulabhai Shankarbhai of Mahudha. He had told Dhulabhai Shankarbhai that he would not enter into transactions with his firm unless the firm sold pure ghee to him. He contended that he had purchased 'the ghee from Dhulabbai Shankarbhai under a warranty that the ghee was of the nature, substance and quality which it purported to be and that he had sold the ghee to the Food Inspector in the same state in which he had purchased it. He had no reason to believe at the time of selling it to the Food Inspector that it was not of the nature, substance and quality which it purported to be. Upon these contentions, the respondent denied the charges which were brought against him by the State of Bombay.

4. The learned Special Judicial Magistrate, First Class, Surat, found that although the respondent had purchased ghee from Dhulabhai Shankarbhai under a warranty that it was of the nature, substance and quality which it purported to be, he had not purchased it as agent and, therefore, the protection conferred by Clause (a) of the proviso to Sub-section (3) of Section 4 would not avail him. He also held that the respondent had failed to satisfy the Court that he had sold the ghee to the Food Inspector in the same state in which he had purchased it. Accordingly, he found the respondent guilty of having committed offences under Section 4, Sub-section (1), Clauses (a) and (b) of the Bombay Prevention of Adulteration Act and sentenced him to pay a fine of Rs. 500 or in default to suffer one month's rigorous imprisonment.

5. On appeal to the Court of Session, the learned Sessions Judge held on merits that the ghee, which was sold by the respondent to the Food Inspector, was adulterated ghee as it was not of the nature, substance or quality which it purported to be; but the learned Judge took the view that the respondent was protected by Clauses (a), (b) and (c) of the proviso to Sub-section (3) of Section 4. According to the learned Judge, the respondent had satisfied the Court that he had purchased the ghee from Dhulabhai Shankarbhai under a warranty that it was of the nature, substance and quality which it purported to be, that he had sold it in the same state in which he had purchased it and that he had no reason to believe at the time of selling it that it was not of the nature, substance and quality which it purported to be. Upon that view, the learned Judge found the respondent not guilty of the offences under Section 4, Sub-section (1), Clauses (a) and (b) and acquitted him of the said charges. This is an appeal by the State of Bombay from that judgment of acquittal.

6. Since the learned Sessions Judge has, upon a consideration of the evidence before him, come to the conclusion on merits that the ghee which was sold by the respondent to the Food Inspector was not of the nature, substance or quality which it purported to be, it is not necessary to go into that aspect of the case. The contest in this appeal has mainly centred round the construction of Clause (a) of the proviso to Sub-section (3). The respondent contends that since he had purchased the ghee from Dhulabhai Shankarbhai under a warranty that the ghee was of the nature, substance and quality which it purported to be, his case would be covered by Clause (a), whereas the State contends that as the respondent had not purchased ghee as agent from Dhulabhai, the benefit of Clause (a) could not be claimed by him. It may be noted that the learned Sessions Judge did not accept this contention of the State.

7. Clauses (a), (b) and (c) of the proviso to Sub-section (3) of Section 4, read together, constitute an exception to the statement of law contained in Sub-section (3), and it would be convenient at this stage to set out Sub-section (3) with, these clauses. Subsection (3) lays down:

(3) In any prosecution under this section it shall be no defence to allege that the seller was ignorant of the nature, substance or quality of the article of food sold by him, or that the article was: not defective in all three respects, namely, nature, substance and quality:

Provided that the seller shall not be deemed to have committed an offence under this section if he proves to the satisfaction of the court-

(a) that the article sold was purchased or obtained as agent by him as the same in nature, substance and quality, as that demanded by the purchaser and with a written warranty to the effect that it was of such nature, substance and quality;

(b) that he had no reason to believe at the time when he sold it that the article was not of such nature, substance and quality as aforesaid; and

(c) that he sold it in the same state in which he purchased it.

As I have mentioned above, the learned Sessions Judge has taken the view that the word 'purchased' and the words 'as agent' in Clause (a) are independent of each other, that the Legislature did not intend them to be read together, that it is not essential for the availability of the protection of Clause (a) that the purchase of an article of food should have been done by a person as agent and that the Clause (a) would be attracted even if the purchase is done by a person for himself, provided the purchase is made under a warranty. This view of the learned Judge is challenged by the State of Bombay in this appeal, and it is contended by the State that before the protection of Clause (a) could be claimed by the purchaser of an article of food, he must show not only that the purchase was made under a warranty, but also that it was made by him as agent. The State contends that if the purchase is made by a person for himself or on his own behalf, the provisions of Clause (a) would not be attracted. In other words, the contention of the State is that the words 'purchased or obtained as agent' must be read as 'purchased as agent or obtained as agent'.

8. Having heard the arguments advanced on behalf of the State and the respondent by the learned Additional Assistant Government Pleader and the learned advocate Mr. Rajani Patel respectively, we are of the opinion that the view taken by the learned Judge must prevail and the contention of the State must fail. Upon the contention of the State that the words 'as agent' in Clause (a) govern both the words 'purchased' and 'obtained', it must follow that if a person, as agent, purchases an article of food under a warranty and sells it in the same state in which he purchased it and has no reason to believe at the time of selling it that it is not of the nature, substance and quality which it purports to be, he would be entitled to the protection of the proviso to Sub-section (3) if ultimately the article turns out to be not of the nature, substance and quality which it purports to be. But if he purchases the same article for himself from the same place under the same warranty and sells it in the same state in which he purchased it and has no reason to believe at the time of selling it that it is not of the nature, substance and quality which it purports to be, the protection of the proviso to Sub-section (3) would not avail him. In our view, the Legislature could not have intended to make such a discrimination between a person purchasing an article of food for himself and selling it and another parson purchasing it as agent and selling it. If a person goes and purchases an article of food under a warranty that the article purchased by him is of the nature, substance and quality which it purports to be and sells it in the same state in which he purchased it and has no reason to believe at the time of selling it that it is not of the nature, substance and quality which it purports to be, we do not see what difference it makes, or why it should make any difference, whether he purchases it for himself or as agent. Quae the proviso to Sub-section (3), a distinction between a person purchasing an article for himself and selling it and a person purchasing it as agent and selling it is arbitrary and irrational. The learned Additional Assistant Government Pleader contends that if a person purchases an article for himself and sells it to others, he owes a duty to the public that what he sells is not an adulterated stuff, but, says the learned Additional Assistant Government Pleader, if he purchases it as agent and sells it, he owes no such duty to the public. The contention is patently unsound and has no substance. In our view, a person who purchases as agent an article which, he knows, is to be sold to the public and which he does sell to the public is also equally under a duty to the public that what is sold by him to them is the article which is of the nature, substance or quality which it purports to be. It is a well-known rule of construction that the words of a statute should be so construed as would best harmonise with, and promote, the object underlying the statute. It is clear that the object of the Legislature in enacting the Act was 'to make better provision to prevent the adulteration of articles of food and the sale of such articles'. Thus, amongst the evils which the Legislature sought to prevent by passing this legislation was the sale of adulterated articles of food. Such being the scheme of the Act, it is wholly immaterial for the purposes of the Act whether the sale of an article is by a person who had purchased it for himself or as agent. From the point of view of public health, the sale of an adulterated article of food is equally harmful, whether it is a sale by a person who had purchased the said article, for himself or as agent. That being so, why should the Legislature have intended to protect the seller who had purchased the article as agent and not the seller who had purchased it for himself? Such a discrimination would be without a cogent or valid reason and, therefore, arbitrary and the Legislature could not have intended it. What offends against the Act is the sale, and exposure for sale, of an adulterated article, and not the capacity of a seller, namely, whether he was a purchaser for himself or a purchaser as agent. The language of Clauses (a), (b) and (c) of the proviso to Sub-section (3) of Section 4 clearly suggests that the basis of the protection conferred by these clauses lies in the state of mind of the seller that the article purchased by him was of the nature, substance and quality which it purported to be and that he had no reason to believe at the time of selling it that it was not of the said nature, substance and quality-a state of mind proceeding from the fact that the purchase of the article was made by him under a warranty and thereafter he had not tampered with it before selling it. Upon this view, a circumstance whether the purchase was made by the seller for himself or as agent would not affect the availability of the protection to the seller under the proviso to Sub-section (3).

9. Since the words 'purchased or obtained as agent' in Clause (a) of the proviso to Sub-section (3) have become the subject of controversy as to their construction, Mr. Rajani Patel has invited our attention to the legislative history in respect of the enactment of Clause (a). Now, it would not be right, on a matter of construction, to turn to the legislative history of an enactment and to construe the particular words of a statute with reference to the speeches which might have been made, or the proceedings which might have taken place, in the Houses of Legislature. In A. K. Gopalan v. The State : 1950CriLJ1383 , the learned Chief Justice observed that while it was not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question was raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates might be permitted. Mr. Justice Patanjali Sastri, who also delivered a judgment in that case, expressed his view that in construing the provisions of an Act, speeches made in the course of the debates on the Bill should not be taken into consideration. It is to be noted, however, that in a subsequent case of Chiranjitlal Chowdhuri v. The Union of India : [1950]1SCR869 . Mr. Justice Fazl Ali observed that, although legislative proceedings could not be referred to for the purpose of construing an Act or language of its provisions, they were relevant for the proper understanding of the circumstances under which the Act was passed and the reasons which necessitated it. That is precisely the purpose of Mr. Rajani Patel in referring us to. the legislative history of Clause (a) of the proviso to Sub-section (3), He is drawing our attention to it for helping us to have the proper understanding of the circumstances under which the words 'or obtained as agent' came to be used by the Legislature in Clause (a). Mr. Rajani Patel says that the legislative history of Clause (a) is relevant, to show how Clause (a) was originally worded in the Bill and how it finally acquired its present shape. Relying on the authority of Mr. Justice Fazl Ali's observations in Chiranjitlal's case, we think it is relevant to know what the wording of Clause (a) as it originally stood was, so that we might better understand the reasons which necessitated the words 'or obtained as agent'. It may be noted that Mr.Rajani Patel is not asking us to take into consideration the speeches made in the course of the debates on the Bill which was ultimately passed into the Act. He is not asking us to consider what opinions were expressed by the individual members of the Legislature on any particular provisions of the Bill. He is merelypointing out how the Clause (a) had originally stood, so that it might help us to understand better the reasons which led to its evolution into its final shape in the Act. Clause (a) of the proviso to Sub-section (3) of Section 4, as it originally stood in the Bill, was in these words:

Provided that the seller shall not be deemed to have committed an offence under this section if he proves to the satisfaction of the Court-

(a) that the article sold was purchased by him as the same in nature, substance and quality, as that demanded by the purchaser and with a written warranty to the effect that it was of such nature, substance andquality.

Thus, in the original Clause (a) the words were: 'That the article sold was purchased by him as the same in nature, substance and quality....'The words 'or obtained as agent' were absent in Clause (a) as it originally stood. The next step in the legislative history of Clause (a) was the addition of the words 'or obtained as agent' after the word 'purchased'. In our view, the addition of these words, namely, the words 'or obtained as agent' was made by the Legislature so as to include the case of a seller who might himself be an agent and who might have obtained the article under an agency contract from the original owner. We cannot be persuaded to believe that when this step was taken by the Legislature, namely, the step of adding the words 'or obtained as agent', the protection which the Legislature had originally intended, by Clause (a) as it initially stood, to confer upon a person who purchases an article for himself under a warranty and sells it was intended to be withdrawn. Thus, upon the authority of Mr. Justice Fazl Ali's observations in Chiranjitlal's case the legislative history of Clause (a) helps ns to understand better the reasons which necessitated the addition of the words 'or obtained as agent'. The legislative history is relevant for that purpose and Mr. Rajani Patel did well to draw our attention to it.

10. We may also state that if the Legislature had wanted the words 'purchased or obtained as agent' to carry the meaning which the State is contending for, they would have placed a coma after the word 'purchased' and after the word 'obtained'. In that case, Clause (a) of the proviso to Sub-section (3) of Section 4 should have read 'that the article sold was purchased, or obtained, as agent by him....

11. It is for these reasons that we are of the view that the learned Sessions Judge was right in the conclusion to which he came, namely, that if a person, purchases an article of food under a warranty that it is of the nature, substance and quality which it purports to be, his case would be covered by Clause (a) of Sub-section (3) of Section 4, notwithstanding the fact that the article may ultimately turn out to be not of the nature, substance and quality which it purports to be.

12. In this connection, we may turn to a decision of this Court in State v.Amritlal Bhogilal : AIR1954Bom216 . In the body of the judgment in that case, Mr. Justice Chainani, who delivered the judgment of the bench, observed (p. 979) :.This clause [Mr. Justice Chainani was referring to clause (a) of the proviso to Sub-section (3) of Section 4] can, however, only apply in cases referred to in Clause (a), that is if the article is purchased as an agent and with a writtenwarranty.

It may be noted with respect that the question of construing the words 'purchased or obtained as an agent' did not arise for decision in State v. Amritlal Bhogilal. The question that arose for decision in that case was whether the three Clauses (a), (b) and (c) of the proviso to Sub-section (3) of Section 4 were to be read disjunctively or conjunctively, and the Court came to the conclusion that the clauses were not to be read disjunctively, but they were to be read together. In these circumstances, we must accept Mr. Rajani Patel's contention that the observations in the course of the. judgment in that case, namely, 'This clause can. however, only apply in cases referred to in clause (a), that is, if the article is purchased as an agent and with a written warranty,' would not amount to a decision.. With respect, they were incidental observations on a point which did not arise for decision in that case.

13. The learned Additional Assistant Government Pleader for the State has next contended that the respondent has failed to show that his case would fall within Clauses (6) and (c) of the proviso contained in Sub-section (3) of Section 4. In other words, his contention is that the respondent has failed to show that he had no reason to believe at the time when he sold the ghee to the Food Inspector that it was not of the nature, substance and quality which it purported to be and he has also failed to show that he had sold it to theFood Inspector in the same state in which he had purchased it. We have only to turn to the judgment of the learned Sessions Judge to appreciate the reasons why he came to the conclusion that the respondent had satisfied the requirements of both the Clauses (b) and (c). So far as Clause (c) is concerned, the learned Judge observed in the course of his judgment in paragraph 9:

I have also come to the conclusion that the appellant has proved the facts necessary to be proved tinder clauses (b) and (c). I have already given my reasons for holding that the appellant sold the article in the same state in which he had purchased it. Clause (b) states that the seller must have no reason to believe at the time he sold it that the article was an adulterated one. Therefore, the relevant time for belief is the time at which the article was sold.

In other words, the learned Judge came to the conclusion that when the article was sold by the respondent to the Food Inspector, it was in the same state in which it was when he had purchased it and further that at the time when he sold the article to the Food Inspector, he had no reason to believe that the article was not of the nature, substance and quality which it purported to be. Once we come to the conclusion that when the respondent sold the ghee to the Food Inspector, it was in the same state in which it was when he had purchased it from Dhulabhai Shankarbhai, we must hold that at that time he had no reason to believe that the ghee was not of the nature, substance and quality which it purported to be, since he had purchased the ghee initially under a warranty. As the learned Judge pointed out, there was no evidence to show that the lid of the tin from which the ghee was taken out by the respondent and sold to the Food Inspector could have been removed by the respondent at any time prior to his selling the ghee to the Food Inspector. From this circumstance, the learned Judge came to the conclusion, and in our view quite rightly, that the respondent had satisfied the Court that he had no opportunity for inserting extraneous substance into the tin. Then the learned Judge said that upon the evidence before him, there was no reasonable ground for believing that the tin in question was tampered with by the respondent at any time after the same had been received by him from Dhulabhai Shankarbhai. Even the Food Inspector did not depose that the lid of the tin from which ghee was given to him by the respondent appeared to have been tampered with. At the time of selling the ghee to the Food Inspector, the respondent's conduct was consistent with his innocence. He did not disclose any sign of nervousness or fear or hesitance before selling the ghee to the Food Inspector. The learned Judge concluded from this circumstance, and in our view rightly, that the respondent must not have had any reason to believe at the time of selling the ghee to the Food Inspector that it was not of the nature, substance and quality which it purported to be. For these reasons, we hold that the learned Judge was right in the conclusion to which he came that the respondent had satisfactorily established that his case was covered by Clauses (b) and (c) of the proviso to Sub-section (3) of Section 4. I have already pointed out above that since the respondent had purchased the tin of ghee from Dhulabhai Shankarbhai under a warranty that the ghee was of the nature, substance and quality which it purported to be, his case would also be covered by Clause (a) of the proviso to Sub-section (3) of Section 4.

14. The result, therefore, is that the learned Judge was right in taking the view that the respondent had established his defence of warranty under Clauses (a), (b) and (c) of the proviso to Sub-section (3) of Section 4 and that, therefore, he was entitled to acquittal. The acquittal must be confirmed and the appeal of the State must be dismissed.


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