Yogeshwar Dayal, J.
(1) MESSRS. J, B. Bottling Company Private Limited, New Delhi, was convicted on December 5, 1968, by a Judicial Magistrate for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, and was fined Rs. 5000.00 . The appeal filed by the company against its conviction and sentence was, however, accepted by Shri J. D. Jain, Additional Sessions Judge, Delhi, on November 21, 1969.
(2) The allegations against the company were that out of the carbonated-water bottles manufactured by it and which were in a truck for delivery to various customers, a Food Inspector found a bottle of 'Gold Crush Orange' which contained a dead fly in it.
(3) The learned Additional Sessions Judge acquitted the company while relying on a Division Bench judgment of this Court in the case of M/s. Rammeshwar Chotte Lal and others v Union of India and other . The Municipal Corporation of Delhi came up in appeal after obtaining special leave of this Court against the order of acquittal passed by the learned Additional Sessions Judge. The appeal came up for hearing before a Division Bench (Jagjit Singh and Vyas Dev Misra, JJ.). Before this Division Bench the correctness of the decision in the case of M/s. Rammeshwar Chotte Lal (supra) was challenged and the said Division Bench by its order dated October 31, 1974, referred the following point for being considered by a larger Bench.
'WHETHERa company as defined in section 17 of the Prevenion of Food Adulteration Act, 1954, enjoys immunity from prosecution when under the said Act it is alleged to have committed an offence to which the proviso to sub-section (1) of section 16 is not applicable and for which the minimum penalty of imprisonment for a term of not less than six months and fine of not less than one thousand rupees is provided and further if such a company does not enjoy the immunity from prosecution then on its being found guilty of such an offence can a punishment of fine be imposed on it.'
(4) The matter has now been placed before the Full Bench. For appreciating the contentions of the learned counsel for the parties, it is necessary to notice a few provisions of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the 'Act' Section 7 of the Act provides as under:-
'SEC. 7 : No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-
(I)any adulterated food;
(II)any misbranded food;
(III)any article of food for the sale of which a license is prescribed, except in accordance with the conditions of the license;
(IV)any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health: or
(V)any article of food in contravention of any other provision of this Act or of any rule made there under.'
SECTIONS 16, 17 and 18 of the Act provide as under:- 'Section 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 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 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 there under; 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 of 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; (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 provisions 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 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. (1A) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees. (1B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article and such article is found by the magistrate before whom it is produced, to be adulterated with any poisonous or other ingredient under sub-clause (h) of clause (i) of section 2, then, notwithstanding anything contained in sub-section (IA), he shall be punishable with imprisonment for a term of six years and with fine which shall not be less than one thousand rupees. (1C) If any person contravenes the provisions of section 14 or section 14-A, he shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than adulteration, or (1D) If any person convicted of an offence under this. Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the license, if any, granted to him under this Act and thereupon such license shall, notwithstanding anything contained in this Act, or in the rules made there under, stand cancelled. (2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.
Section 17(1). Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanationn : For the purposes of this section- (a) 'company' means any body corporate, and includes a firm or other association of individuals; and (b) 'director' in relation to a firm means a partner in the firm.
SEC. 18. Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule there under, the article of food in respect of which the contravention has been committed may be forfeited to the Government.'
(5) It will be noticed that the word 'person' is not defined in the Act but has been defined in section 3(42) of the General Clauses Act which runs as follows:- 'Person' shall include any company or association or body of individuals, whether incorporated or not.'
(6) Section 17 of the Act postulates an offence under the Act being committed by the company and where an offence is committed by a company, persons guilty of the offence committed by a company, (unless such persons prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent the commission of such offence) are:-
(I)every person who, at the time of the offence, was in charge of and was responsible to the company for the conduct of the company,
(II)the company itself, and
(III)the director, manager, secretary or other officer of the company against whom it has been proved that the offence either has been committed with his consent or connivance or is attributable to any neglect on his part
(7) What applies to the company also applies to a body corporate, or firm, or other association of individuals and what applies to a director, also applies to a partner in the firm.
(8) A bare reading of section 17 shows that 'company' is a person which is contemplated by the Act to be capable of committing the offence under the Act.
(9) A combined reading of sections 16 and 17 shows that a company comes within the expression 'if any person' used in section 16(1) of the Act. It is also clear that if the offence is under sub-clause (i) of clause (a) and is with respect to 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) to that section i.e. if the offence is covered by the proviso to section 16(1) the company can be prosecuted and punished. The questions referred are two :-
(I)Whether a company as defined in section 17 of the Prevention of Food Adulteration Act, 1954, enjoys immunity from prosecution when under the said Act it is alleged to have committed an offence to which the proviso to subsection (1) of section 16 is not applicable and for which the minimum penalty of imprisonment for a term of not less than six months and fine of not less than one thousand rupees is provided.
(II)If such a company does not enjoy the immunity from prosecution then on its being found guilty of such an offence can a punishment of fine be imposed on it.
(10) It will be noticed that in the substantive part of section 16(1), a minimum penalty of six months and a fine of not less than Rs. 1000 has been prescribed if any person is found guilty of an offence other than those described in the proviso to sub-section (1) of section 16.
(11) At this stage it may be noticed that the present sub-section (1) of section 16 was substituted for the old sub-section (1) by Act No. 49 of 1964. The old sub-section (1) reads as follows -
'(1)If any person- (a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made there under, 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) being a person in whose safe custody any article of food has been kept under sub-section (4) of Section 10, tampers or in any other manner interferes with such article, or (f) 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 purpose of advertising any article of food, or (g) whether by himself or by any person on his behalf gives to the purchaser 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 provisions of Section 6, be punishable-
(I)for the first offence, with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both; (ii) for a second offence with imprisonment for a term which may extend to two years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees; (iii) for a third and subsequent offences, with imprisonment for a term which may extend to four years and with fine:
(12) Provided that in the absence of special and adequate reason to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees.'
(13) It will be noticed that prior to the amendment of section 16, the punishment provided for the first offence was imprisonment up to one year or fine up to Rs. 2000 or both. For the second offence it was provided that the term of imprisonment may extend to two years and fine but a restriction was placed on the powers of the courts that in the absence of special adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than Rs. 2000 and again, for 3rd and subsequent offence discretionary higher punishment was provided by imprisonment up to four years with fine but that again also contained a similar proviso as relating to the offence committed for the first or second time. There was no mandatory provision for imposition of 'imprisonment and fine' and under the circumstances under the old sub-section (1) of section 16 for all offences the company and its employees could be prosecuted and punished. By its very nature since the company should not suffer corporal punishment it could be prosecuted and punished only with fine. The objects and reasons for amendment in the amending Act were mentioned as under :-
'The administration of the Prevention of Food Adulteration Act, 1954, during the last about eight years has revealed that the machinery provided by the Act is inadequate and that to cope with the increasing tendencies to indulge in adulteration, a revision of some of the provisions is necessary. The Central Council of Health at its meeting held in October, 1960, reviewed the position and recommended infer alias that the penal provisions of the Act should be made more deterrent and the services of the Food Inspectors instead of being left to remain under the local authorities should be provincialised...... It is also considered that the penal provisions of the Act are inadequate and that they should be made more deterrent in order to have an effective check on the evil of adulteration.' (Gazette of India Extraordinary : Part Ii Section Ii 1963 at page 1045).
(14) It is apparent from the objects and reasons that the object of substituting the present sub-section (1) of section 16 was to provide more stringent punishments where they could be imposed for most of the offences contemplated by section 16 read with section 7 of the Act. It is, however, argued on behalf of the company that since the substantive part of section 16(1) makes imposition of imprisonment and fine mandatory, and since company cannot be given the sentence of imprisonment, thereforee, for offences regarding which punishment of imprisonment is mandatory, company cannot be prosecuted at all.
(15) It is submitted that the mandatory sentence is part of the trial and no prosecution can be instituted for the offence contemplated by section 16(1) where the mandatory sentence cannot be imposed and thereforee since the company cannot be given corporal punishment and corporal punishment is mandatory part of the sentence, the company cannot be prosecuted at all. Reliance for this proposition is placed on section 354 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), (Section 367 of the old Criminal Procedure Code . 1898) ; and on cases reported as State of Maharashtra v. Messrs. Syndicate Transport Co. P. Ltd. and others : AIR1964Bom195 Rex v. I. C. R. Haulage Limited and others 1944 (1) K. B. 551 , The King v. Daily Mirror Newspapers Limited 1922 (2) K. B. 530: Girdhari lal and others v. Lalchand and others : and Superintendent and Rememberancer of Legal Affairs West Bengal v. Corporation of Calcutta A.I.R. 1967 S. C. 977.
(16) The provisions of aforesaid Section 354 and old section 367 arc substantially the same. Sub-section (2) of section 367 old Criminal Procedure Code . contemplates that the judgment of the criminal court shall specify the offence, if any, of which, and the section of the Indian Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.
(17) We shall now deal with the aforesaid cases in the order in which they have been mentioned above. The State of Marashtra v. Messrs. Syndicate Transport Co. Pvt. Ltd. and others was a case where a Private Limited Company along with its officers was prosecuted for offences under sections 420 and 406 or 403 Indian Penal Code . The trial Magistrate passed an order framing charges under section 420 Indian Penal Code against the company and others. The company went up in revision to the Sessions Court with a request to quash the proceedings against it. The extra Additional Sessions Judge reported the case to the High Court with recommendation to quash the charges framed by the Trial Magistrate against the company. The recommendation was made with a view that a corporate body acts only through its agents or servants and the means read of such agents or servants cannot be attributed to the company. He also remarked that it would not be possible to sentence a company to imprisonment and a charge under section 420 Indian Penal Code . could not be sustained against the company because it was mandatorily punishable with imprisonment. At the hearing of the reference before the High Court, the counsel for the State and the company supported the reference. Even the counsel for the complainant accepted the proposition that a company cannot be prosecuted for an offence under section 420 mandatorily involving punishment of imprisonment.
(18) The definition of the word 'person' in section 11 of the Indian Code is more or less at par with that given in section 3 of the General Clauses Act, 1897. Section Ii Indian Penal Code defined the word 'person' as under :-
'S.11. The word 'person' includes any Company or Association or body of persons, whether incorporated or not.'
'Including' is a term employed generally where the scope of the class indicated by the words preceding it is wider than that of the class specified by the terms which follow. The clause 'unless there is anything repugnant in the subject or context' must always be understood to exist in the context of the definitions given in the Indian Penal Code. It was in this context that Paranjpe, J. held that despite the generality of the definition of the word 'person' given in section 11 of the Indian Penal Code, a corporate body or a company shall not be indictable for offences which can be committed only by a human individual or for offences which must be punished with imprisonment. There was no general proposition laid down by the learned Judge that even if a special Act makes a company indictable, it will not be prosecuted if the sentence provided is both corporal as well as fine.
(19) In the case of Rex v. I. C. R. Haulage Limited and others the appellant company was charged along with others with an offence of conspiracy to defraud. The company was convicted and was ordered to be fined. The company appealed. The question considered by the court was whether a limited company can be indicted for the offence charged with. Counsel for the company contended that an indictment against a limited company for any offence involving 'means rea' must be had for the reason that a company not being a natural person cannot have mind, honest or otherwise, and that. consequently. though in certain circumstances it is civilly liable for the fraud of its officers, agents or servants, it is immune from criminal process. The counsel for the crown contended that a limited company, like any other entity recognised by the law can as a general rule be indicted for its criminal acts which from the very necessity of the case must be performed by human agency and which in given circumstances become the acts of the company. The court of appeal accepted the submission of the Crown and dismissed the appeal.
(20) It will be noticed that the case is not of much help since a fine had been imposed. Pine was the only punishment prescribed as well. Stable J., while delivering the judgment observed as under:-
'THEoffences for which a limited company cannot be indicted are, it was argued, exceptions to the general rule arising from the limitations which must inevitably attach to an artificial entity, such as a company. Included in these exceptions are the cases in which, from its very nature, the offence cannot be committed by a corporation. as, for example, perjury, an offence which cannot be vicariously committed, or bigamy, an offence which a limited company, not being a natural person, cannot commit vicariously or otherwise. A further exception, hut for a different reason, comprises offences of which murder is an example. where the only punishment the court can impose is corporal, the basis on which this exception rests being that the court will not stultify itselt by embarking on a trial in which, if a verdict of Guilty is returned, no effective order by way of sentence can be made. In our judgment these contentions of the Crown are substantially sound, and the existence of these exceptions. and it may be that there are. others, is by no means inconsistent with the general rule.'
(21) The exception in favor of company thus created was for an offence where the only punishment that the court can impose is corporal.
(22) In the decision of the court of Appeal in the case of The King v Daily Mirror Newspapers Limited. it was held that a limited coin pany cannot be committed for trial on an indictment and, thereforee, it cannot also be tried. The position is made clear in the argument of Sir John Simon which was accepted by the Court of Appeal. He pointed out that in order that a person may be brought to trial, he must be committed for trial. In that case, the company could not be committed for trial because the Interpretation Act of 1889 in England explained what was meant by the expression 'committed for trial' and the provision was that the expression 'committed for trial' used in relation to any person shall, unless the contrary intention appears, mean, committed to prison with a view to being tried before a judge or jury. This interpretation of 'committed for trial' has not found place in the Indian Law. There is no such definition of commitment for trial as in the English Interpretation Act. thereforee, because of the difficulty of committing for trial under the English law it could not be possible for a Judge or jury to try a limited liability company but in the Indian Law 'committed for trial' or being prosecuted does not mean being actually detained in a prison. thereforee, the reason given why a limited company could not be tried in England in that case cannot be applied to the case of a limited company in India. thereforee, it must be said that this authority has no effect in India.
(23) In the case of Girdharilal and others v. Lalchand and others, U. P. Beri, J. held that Municipal Corporation can be prosecuted for offences which arc only punishable with fine; for, in the very nature of things, imprisonment of a municipal Council is out of question. The offences for which the municipal Council Jodhpur was prosecuted were under sections 268, 278 and 290 Indian Penal Code . Under sections 278 and 290 the punishment is fine. This authority, thereforee, has no relevance to the question before us.
(24) In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v Corporation of Calcutta . the majority over-ruled their earlier decision reported as : 1960CriLJ1684 and accepted the minority view of Wanchoo J. expressed in it. In this case all that was laid down was that State was neither expressly nor impliedly exempted from the operation of section 218 of the Calcutta Municipal Act. This authority is again of no help on the question that we are considering.
(25) Bawa Gurcharan Singh, learned counsel for the company, then relied upon three other decisions in the cases of Queen-Empress v. Wazir Jan I.L.R. All 58 , The King v. Tustipado Mandal and others : AIR1951Ori284 ; and State v. Govindsingh and others : AIR1962MP36 .
(26) In the case of Queen-Empress v Wazir Jan the trial court had convicted the respondent under sections 170 and 384 of the Indian Penal Code. The trial court, however, did not pass sentence in respect of conviction under section 170 Indian Penal Code . The State had gone in revision to the High Court. While discussing this question whether the lower court was right in not passing any sentence, Mahmood J. observed as under :-
'I have now to consider the third question, namely, whether the learned Sessions Judge was right in law in declining to pass any sentence in respect of the conviction under s. 170 of the Indian Penal Code. I am of opinion that such an omission was illegal. Just as the maxim ubi jus ibi remedium is a rule of jurisprudence, so it is a principle, of the criminal law that where there is an offence there must be a punishment, the general rule being in either case affected by exceptional provisions of the law, whether provided by statute or some other legal authority, disturbing the uniformity of the application of general maxims. No such provision or authority is to be found in our criminal law. whether belonging to the domain of substantive law or of adjective law. Indeed, the provisions of section 170 of the Indian Penal Code itself are imperative, and they leave no room for doubting that whoever commits the offence prescribed by that section must undergo punishment according to the behests of that section, read, of course, as it must be read, with the general rule contained ins. 71 of that Code.'
(27) In the case of the King v Tustipada Mandal and others, a Division Bench of the Orissa High Court held that it is imperative that every conviction of an offence shall be followed by the prescribed punishment while in case no minimum is prescribed, to reduce it to something nominal is completely within the discretion of the Court.
(28) In the case of State v Govindsingh and ofhers, S. B. Sen J. held that in cases of conviction a Magistrate has to pass a sentence according to law unless he takes recourse to section 562 Criminal Procedure Code . or other analogous provision. He can give the minimum punishment but he must give it.
(29) The learned counsel for the company has also relied on the following passage occurring in 'Russell on Crime' (12th Edition, at page 96) which is as follows :-
'ATcommon law a corporation aggregate has been regarded as in the nature of things incapable of treason, felonies or misdemeanours involving personal violence, such as riots or assaults, or of perjury, or it would seem offences for which the only penalty is imprisonment or corporal punishment.'
(30) From the provisions of section 354 of the Code of Criminal procedure and these authorities the following principles may be deduced :-
(I)If only corporal punishment is prescribed, an artificial body like a company cannot be prosecuted since it cannot be punished. (ii) Sentence or punishment must follow a conviction.
(31) The second principle, as observed by Mahmood J., is subject to the condition of exceptional provisions of the law, whether provided by statute or by some other legal authority.
(32) The Division Bench in the case of M/s. Rammeshwar Chotte Lat and others v Union of India and other (supra) after examining the provisions of Section 17 of the Act observed as follows :-
'WHATis the position under the statute Section 17(1) in express terms provides that where an offence under the said Act has been committed by a company, 'every person who at the time the offence was committed was in charge of and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.' The proviso to sub-section (1) says that 'nothing contained in this subsection shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offences.' Sub-section (2) of section 77 imposes a liability on director, manager, secretary or other officer of the company, if it is proved, in case of an offence by a company, that the same has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, etc. The definition of the 'company has been enlarged by the Explanationn to include a firm or other association of individuals and of 'director' to include in relation to a firm a partner in the firm. It thereforee clearly appears that firms and companies have been expressly brought within the purview of the penal provisions of the statute. It cannot, thereforee, be said that firms and companies are completely outside section 16.'
(33) The Division Bench then went on to observe:-
'Adifferent question, however, arises where the punishment of imprisonment is compulsory. The learned counsel turn the respondents suggested two alternatives: (1) in such cases a company or a firm may be prosecuted but since it is not possible to imprison a company the Court may dispense with the punishment of imprisonment even under the substantive provision of section 16 and award fine only, and (2) a firm may be prosecuted but not punished. As to the point raised by the first contention, the argument docs not sound plausible. Under the substantive provision of section 16, punishment by way of imprisonment is mandatory and I do not think the Courts are competent to perform a surgical operation on the section and say that though punishment prescribed is cumulative yet in case of a company it may be punished with fine only. As to the second argument I do not think that the Courts can stultify themselves by permitting indictment, if it cannot ultimately result in conviction.'
(34) These latter observations were made as the Division Bench felt bound by the dicta laid down by the Supreme Court in the case of State of Maharashtra v Jugmander Lal : 3SCR1 wherein the Supreme Court while interpreting a similar provision under section 3(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, had held that the expression 'shall be punishable with imprisonment and also with fine' means that the Court is bound to award sentence consisting both of imprisonment and a fine. This decision was given by the Supreme Court in view of the submission made by the respondent therein who desired the Court to exercise choice as to the nature of punishment. The accused involved in that case could suffer both the corporal punishment and the fine. The Supreme Court held that the accused was liable to suffer both types of punishments. The Supreme Court in this case was not considering the question: where minimum sentence prescribed is both corporal and fine, whether it can be awarded to an artificial person and, if they could not be awarded cumulatively, whether the sentence, in so far as it was possible, could be awarded or not.
(35) By the simple rule of interpretation, a company, as contemplated by Section 17 is covered for the purposes of prosecution under section 7 read with section 16(1) of the Act. The history of section 16 also shows the legislative intent that the idea of the legislature was to make punishment more stringent. The legislative history does not show that the idea was to create an exemption in favor of the company which was already liable under the old section 16(1).
(36) Fact remains that the company cannot be given the sentence of imprisonment. The question which arises is: in what way is the section to be interpreted? It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case (1584) 3 Co. Rep 7a (equivalent to 76 ER. 637) was decided that-
'.........FORthe sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things arc to be discerned and considered: 1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro private commodo,' and to add force and life to the cure and remedy, according to the true intent f the makers of the Act, 'pro bonopublico'.''
(37) IN-IN re, Mayfair property Co., (1898)2 Ch. 28 at p. 35 Lindley M.R. in 1898 found the rule 'as necessary now as it was when Lord Coke reported 'Heydon's case. In-'Eastman Photographic Material Co. v Comptroller General of Patents, Designs and Trade Marks', 1898 Ac 571 at p. 576 Earl of Halsbury reaffirmed the rule as follows:-
'MYLords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the latter Act which provided the remedy. These three being compared I cannot doubt the conclusion'
- Vide Bengal Immunity Co. Ltd. v State of Bihar and others: 1955 S.C. 661, at page 674, wherein this rule of construction was accepted as correct.
(38) The rule laid down in the Heydon's case was again reiterated in the case of Shivnarayun Kabra v. The State of Madras : 1967CriLJ946 . While construing Section 2(c) of the Forward Contracts (Regulation) Act, 1952, the Supreme Court observed at page 989:-
'IT is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. In construing, thereforee. Section 2(c) of the Act and in determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the statute for curing the mischief.'
(39) In the ease of Siraj-nl-Haq Khan and other v The Sunni Central Board of Waqf U.P. and others : 1SCR1287 , Gajendragadkar J. observed:-
'IT is well settled that in construing the provisions of a statute, courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative.'
(40) The legislative intent that the company is covered within the meaning of section 16(1) is further strengthened by a mere reference to section 16(ID), apart from sections 17 and 18 and the history of section 16(1) of the Act.
(41) The Division Bench in the case of Rammeshwar Chotte Lal and others (supra) after having held that the legislative intent is clear that firms and companies have been expressly brought within the purview of the penal provision of the statute felt difficulty in applying it where the minimum sentence was both corporal and fine on the ground that the courts are not competent to perform surgical operation on this section and say that though punishment prescribed is cumulative yet in the case of company it may be punished with fine only. This approach is contrary to the sound principles of interpretation of statutes mentioned above. There is no difficulty in the court passing the sentence of imprisonment and fine in the case of a company but ex fade such an order which is contemplated by the section will not be passed as the sentence, so far as the imprisonment is concerned, cannot be executed but that does not mean that the company is granted exemption from indictment. The office of the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and, thereforee, it will stay its hands in passing the sentence which will be impossible to execute but pass only such sentence which can be executed, namely, fine. The proviso to section 16 applies only to the three classes of offences mentioned therein and as compared to the rest of the offences contemplated by the Act arc of less serious nature and if indictment of the company is confined to only those offences which are covered by the proviso then not only the intention of the legislature is defeated but the provisions of section 16(ID) and section 18 arc also to that extent rendered nugatory, in so far as the offences arc committed by the companies. Section 16(ID) contemplates that if any person is convicted of an offence under the Act and commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the license, if any, granted to him under this Act and thereupon such license shall stand cancelled. It was not intended that the court should take recourse to section 16(ID) if the offences were only of the nature mentioned in the proviso to section 16(1), so far as the companies are concerned. Nor was it intended that the courts should merely convict the company and not pass any sentence. It is true that the sentence of both imprisonment and fine is mandatory in the sense that it has to be imposed where it can be imposed but it will be limited to fine where it cannot be imposed, as corporal punishment in the case of companies becomes impossible of execution.
(42) It is, thereforee, held that a company as defined in Section 17 of the Prevention of Food Adulteration Act, 1954, docs not enjoy immunity from prosecution when under the said Act it is alleged to have committed an offence to which the proviso to sub-section (1) of Section 16 is not applicable; and, in case such a company is found guilty of such an offence, it can be punished with fine.
(43) The reference is answered accordingly, and the criminal appeal will now he posted before the Division Bench for disposal in the light of the aforesaid answer.