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Food Inspector, Puri Municipality Vs. Rama Gopal Agarwalla - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 196 of 1965
Judge
Reported inAIR1967Ori174; 33(1967)CLT843; 1967CriLJ1547
ActsPrevention of Food Adulteration Act, 1954 - Sections 7 and 16(1)
AppellantFood Inspector, Puri Municipality
RespondentRama Gopal Agarwalla
Appellant AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Respondent AdvocateM.S. Mohanty and ;R.K. Kar, Advs.
DispositionAppeal allowed
Cases ReferredSarjoo Prasad v. State of U. P.
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, the supreme court expressed that they fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge......suspecting adulteration of harada dal, which the accused was allegedly selling in his shop, the food inspector, puri municipality, on 17-7-1962, gave notice under section (a) of the act intending to purchase sample of, among other food articles, harad dal for analysis by the public analyst. the accused received a copy of the notice ext. 1 which he signed. the service of the notice was witnessed by p. ws. 2 and 3. the cash memo (ext. 2) shows the sale to the food inspector by the accused as salesman. ext. 3 in printed form is a document purporting to support the fact of the transaction of purchase ana sale of the harada dal.3. in due course the said harada dal was examined by the public analyst who by his report (ext. 5) dated june 4, 1963 gave opinion that the sample is adulterated as.....
Judgment:

S. Barman, C.J.

1. Food Inspector, Puri Municipality, has filed this appeal against an order or acquittal, passed by the learned Sessions Judge, Puri, of the accused-respondent Rarna Gopal Agarwalla of a charge under Section 7(i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act), for having sold 750 Grams of Adulterated Harada Dal for a price of 37 paise at Municipal Market, Puri town. The defence of the accused-appellant is that the shop, from which the adulterated Harada Dal is said to have been sold, did not belong to him and that he was only sitting there.

2. Suspecting adulteration of Harada Dal, which the accused was allegedly selling in his shop, the Food Inspector, Puri Municipality, on 17-7-1962, gave notice under Section (a) of the Act intending to purchase sample of, among other food articles, Harad Dal for analysis by the Public Analyst. The accused received a copy of the notice Ext. 1 which he signed. The service of the notice was witnessed by P. Ws. 2 and 3. The Cash memo (Ext. 2) shows the sale to the Food Inspector by the accused as salesman. Ext. 3 in printed form is a document purporting to support the fact of the transaction of purchase ana sale of the Harada Dal.

3. In due course the said Harada Dal was examined by the Public Analyst who by his report (Ext. 5) dated June 4, 1963 gave opinion that the sample is adulterated as the colouring matter used is not permitted under the Prevention of Food Adulteration Rules. In due course, on 12-9-1963 sanction required under Section 20(1) of the Act was obtained to prosecute the accused-respondent, and he was prosecuted accordingly. In his defence the accused-respondent denied the allegations against him. The material question put to him in examination under Section 342 Criminal Procedure Code and the answer he gave thereto are these:

Q.--The allegation against you is that on 17-7-1962 the Food Inspector, Puri Municipality (P. W. 1) suspected that you were selling for human food adulterated Harada Dal in your shop. The Food Inspector went to your shop and in presence of witnesses issued a notice that he would purchase samples of your Harada Dal from your shop. The Food Inspector so purchased 750 grams, of suspected Harada Dal from your shop and paid to you 37 n. p. as the sale price and you issued the cash memo (Ext. 2). Have you got anything to say on this?

A.--The shop does not belong to me. I was only sitting there'.

4. The learned trial magistrate did not accept his defence and held the accused-respondent guilty under Section 16(1)(a) of the Act and sentenced him to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for 4 months. In appeal by the accused, the learned Sessions Judge set aside the order of conviction and sentence and acquitted the accused. Hence this appeal by the Food Inspector, Puri Municipality, against the order of acquittal.

5. The question is: Is the defence plea that the shop does not belong to the accused and that he was only sitting there, available to him in law? In my opinion, the answer should be, No. The reasons are as discussed hereunder.

6. Section 7 prohibiting manufacture sale, etc., of certain articles of food, so far as material, is this:

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

(i) any adulterated food:

.... .....'

The relevant provisions of Section 16 providing for penalties are these:

'16 (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 distribute any article of food:

(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest 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;

he shall..... be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees; Provided that-

(i) if the offence is under Sub-clause (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.'

7. The spirit in which the Act is to be interpreted is indicated in the preamble itself which says that it is an act to make provision for the prevention of adulteration of food. Prohibition of sale of adulterated food is imposed in the larger interest of maintenance of public health. The legislature has, in the interest of public health, enacted the Act and has provided that all persons are prohibited from selling adulterated food; in the absence of any provision, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner, who sells adulterated food.

8. These statutes in the public interest are in substance adaptations of the corresponding English Acts. It is thus that the English decisions on interpretation of such or similar statutes are helpful for construing the sister statutes enacted in India with the same object and reason. Thus Lord Russell, while interpreting certain provisions of the English Sale of Food and Drugs Act, 1875 (38 and 39 Vict C. 63) in Parker v. Alder, 1899-1 QB 20 observed that when the scope and object of these Acts are considered, it will appear that if the accused were to be relieved from responsibility a wide door would be opened for evading the beneficial provisions of this legislation; this is one of class of cases in which the Legislature has, in effect, determined that mens rea is not necessary to constitute the offence. Wills J. (the other learned Judge in the case), while expressing the same opinion, observed that the legislation on the subject was intended to be drastic, and the offence was created quite independently of the moral character of the act. The decision of the English Court of Appeal was that assuming that the accused-respondent was entirely innocent morally and had no means of protecting himself from the alleged adulteration, even so he committed an offence under the Act.

9. In the present case, if the accused-respondent is a 'person' within the ambit of Section 7 of the Act--in my opinion, he is--then there is no escape for him from the penalty provided under Section 16 of the Act. The expression 'person' has not been defined in the Act, and in the context in which that expression occurs, it prima facie includes everyone who sells adulterated food. By the collocation of the expression, 'no person shall himself or by any person on his behalf', the employer alone is not prohibited. The intention of the Legislature is plain. Every person, be he an employer or an agent is prohibited from selling adulterated food and infringement of the prohibition is by Section 16 penalised. By Section 19 in a prosecution for an offence pertaining to the sale of any adulterated article of food, it is no defence merely to allege that the vendor was ignorant of the nature, substance or quality of the food sold by him. The prohibition under Section 7 of the Act applies to all persons who sell adulterated food and for contravention of the prohibition all such persons are penalised.

10. This view is supported by the Supreme Court holding that because the Legislature has sought to penalise a person who sells adulterated food by his agent, it cannot be assumed that it was intended to penalise onlv those who may act through their agents. If the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, the Supreme Court expressed that they fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge. The Supreme Court did not accept the argument--as without force--that the Legislature could not have intended having regard to the fact that a large majority of servants in shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold. The intention of the Legislature must be gathered from the words used in the statute and not on any assumptions about the capacity of the offenders to appreciate the gravity of the acts done by them; there is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate. Sarjoo Prasad v. State of U. P., AIR 1961 SC 631.

11. What are the facts in the present case The evidence of the Food Inspector is that hepurchased 750 grams of adulterated Harada Dal rom the accused and paid him 37 paise as per price fixed by the accused. Ext 2 is the cash memo issued by the accused in his presence. Ext. 3 is the document showing the nature of the transaction which (as translated into English) reads as follows :

'Receipt executed by Ram Gopal Agarwalla, son of Jagannath Prasad Agarwalla, resident of Markandeswarsahi, Thana Puri, District Puri at present near Municipality Thana Puri, Dist. Puri. That I, Ramgopal Agarwalla while selling Harada Dal for human consumption also sold 750 grams to the Food Inspector, Puri Municipality for examination and received in cash 37 n. P. (Thirty seven n. P. only) towards its cost.

Be it noted that the said Harada Dal were packed and sealed in three phials in my presence. Out of the said three sealed phials, I kept one with me Dt. 1962.

Sd. Ram Gopal Agarwalla

(in Hindi)

Seller's signature'

The evidence of the Food Inspector was also corroborated by two eye-witnesses to the said transaction--P. W. 2, a Raj Mistry and P. W. 3 a Gumasta of a neighbouring shop.

12. In the face of these facts supported by evidence, it cannot be said that the accused is not liable although he posed himself as a mere stranger sitting there in the shop. It is evident that he was himself either the owner or the agent of the owner or had implied authority to sell on behalf of the owner. It is not that the accused is illiterate; he put his signatures in Hindi on the documents.

13. The reasoning on which the learned Sessions Judge acquitted the accused is, in substance, this :--

'Indeed, his action in selling the sample to the Food Inspector, taking the price from him and granting a receipt, is rather curious. But regard being had to the common practice prevailing in the market where one shopkeeper accommodates and helps his neighbouring shop-keeper by selling his articles in his absence, this appears to be quite natural. The provisions of the Act cannot however, be attracted to make the appellant liable for selling adulterated food stuff. He is not the owner thereof. He is not a salesman in the shop. Therefore, in all fairness, he cannot be made liable because adulterated food had been stored and was being sold in the shop of another, and he being merely present simply brings out the articles and delivers it to a customer or for the matter of that to the Food Inspector when the Food Inspector demanded a sample of the article. It is really difficult to know what was behind all this transaction in a stranger getting into the shop. of another and bringing out Harada Dal and selling it to the Food Inspector as a sample on the latter's demand. But it is patent that the appellant, for his action cannot be convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act for selling adulterated food.'

14. It is not understandable how the learned Sessions Judge, while holding the transaction 'rather curious' and finding it 'really difficult to know what was behind all this transaction' could reasonably give a definite finding that the accused was neither the 'owner nor a salesman in the shop. The learned Sessions Judge also noted that there was 'the common practice prevailing in the market where one shop-keeper accommodates and. helps his neighboring shop-keeper by selling his articles in his absence' which the learned Sessions Judge thought to be natural, Even on this finding of the prevalent common practice of 'accommodating' and 'helping' a neighbouring shop-keeper--of which apparently, the learned Sessions Judge took judicial notice--it can be reasonably held that the accused, assuming he was neither the owner nor the salesman, had at least implied authority of the owner to sell in his absence as the accused actually did in selling the Harada Dal in question.

15. In my opinion, obviously the attention of the learned Sessions Judge was not drawn to the legal implications of the transaction of sale by the accused in the manner he did; the accused is liable; he should therefore be penalised.

16. As regards sentence, the learned trial magistrate, who convicted him, took the view that for the reasons stated by him in his judgment, the accused did not deserve 'drastic sentence', and he sentenced the accused to pay a fine of Rs. 200/- in default to rigorous imprisonment for 4 months. I agree with the reasoning of the learned magistrate.

17. In the result, therefore, this Criminal Appeal is allowed, the order of acquittal passed by the learned Sessions Judge is set aside, and the accused is convicted under Section 16(1)(a) of the Act and sentenced to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for 4 months.


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