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Madan Lal and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 128 of 1971
Judge
Reported in1973CriLJ1862; 9(1973)DLT68
ActsPrevention of Food Adulteration Act, 1954 - Sections 17
AppellantMadan Lal and anr.
RespondentThe State
Advocates: B.G. Singh,; Ghansyham Das and D.R. Sethi, Advs
Cases ReferredPrevention of Food Adulteration Act. In Mumtaz Begam v. The State Mr. Justice J. P. Mitter
Excerpt:
.....liable under section 17 - appellant challenged order of lower court - to prosecute partner of firm for offence under section 17 it is necessary for prosecution to prove that partner concerned was in charge of and responsible to firm for conduct of business of firm - no complaint against appellant that he was in charge of and was responsible to firm for conduct of business of firm - appellant could not be found guilty - held, conviction set aside. - - section 17 of the prevention of food adalteration act deals with the offences by companies and it reads as :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..........deposed that he is a partner in the concern roshan di kulfi ; that the other partners of the said firm are roshan lal and ram rakha mal ; that exhibit d. w. i/a is the partnership deed ; that roshan lal is ill for the last three years and he does not go to the shop and that he and the other partner look after the business. in cross-examination the witness stated that roshan lal had signed the application for license ; that income-tax return is filled on behalf of the firm and it is signed by both of them; that the firm has no other business except the business : 'roshan di kulfi'.(4) the magistrate found both the accused guilty of the offences charged with and sentenced each one of them to rigorous imprisonment for six months and a fine of rs. 2000.00 and in default of payment of fine.....
Judgment:

R.N. Aggarwal, J.

(1) On 8th October, 1968, Food Inspectors H. K Bhanot and V. P. Anand went to the shop known as 'Roshan Di Kulfi' situated at Ajmal Khan Road. Karol Bagh, Delhi. Madan Lal, an employee was working at the shop. H. K. Bhanot. Food Inspector disclosed his identity to Madan Lal and purchased 900 grams of Kulfi prepared with 'Pista' and nuts on payment of Rs. 7.50 as its price for the purpose of analysis. The Food Inspector divided the sample in three parts and filled it in three clean and dry bottles. The Food Inspector added 24 drops of formalin in each bottle. One part of the sample was sent to the Public Analyst, one part was given to the accused and the third part was retained by the Food Inspector. H. K. Bhanot, Food Inspector, prepared the inventory. Exhibit P. C/1 with regard to the taking of the sample of Kulfi. Similarly, V. P. Anand, Food Inspector, purchased 900 grams of Kulfi prepared with 'Pista' and nuts on payment of Rs. 7.00 as its price for the purposes of analysis. V. P. Anand divided the sample in three parts and filled it in three clean and dry bottles. The Food Inspector added 24 drops of formalin in each bottle and sealed the bottles, One part of the sample was sent to the Public Analyst, one part was given to the accused, Madan Lal and the third part was retained by the Food Inspector, The Food Inspector prepared an inventory Exhibit P. C. with regard to the taking of the sample of the Kulfi. The Public Analyst analysed the sample (taken by Food Inspector H. K. Bhanot) on 11th October. 1968 and found it adulterated due to 2.38 deficiency in milk fat percent by weight and due to presence of starch (other than that of dry nuts). The sample taken by V. P. Anand, Food Inspector was found to be adulterated due to presence of starch (other than that of dry nuts.)

(2) On receipt of the reports of the Public Analyst, the Municipal Prosecutor filed a complaint under section 7/16 of the Prevention of Food Adulteration Act, against Madan Lal (employee) and Roshan Lal, proprietor of the shop. The case was tried in the court of Shri S. M. Dua, Judicial-Magistrate. The complainant in support of its case examined P. W.1 V. P. Anand : P. W. 2, J. P. Jain. Assistant Municipal Prosecutor ; P. W. 3 H. K. Bhanot ; P W. 4 Dev Raj : P. W. 5 Satpal ; C. W. 1 Prem Parkash Bhatnagar ; and C W 2. B D. Narang. Madan Lal accused in his statement under section 342 Cr. P. C. stated that he was an employee of Roshan Lal and Kishori Lal. The accused further stated that the Food Inspector came to the shop ; that the Kulfi was not ready for sale and it was not meant to be sold The accused further stated that he was an employee of Roshan Lal Kishori Lal which is a partnership concern.

(3) Roshan Lal accused in his statement under section 342 Cr. P. C. stated that 'Roshan Di Kulfi' is a partnership business arid he and Kishori Lal are its partners ; that Kishori Lal looks after the business of the shop. The accused stated that due to illness he remains at the house and that he has no knowledge of the taking of the sample. Roshan Lal in support of his defense examined D. W. I Kishori Lal ; and D, W. 2 Hari Chand. D. W. 1 deposed that he is a partner in the concern Roshan Di Kulfi ; that the other partners of the said firm are Roshan Lal and Ram Rakha Mal ; that Exhibit D. W. I/A is the partnership deed ; that Roshan Lal is ill for the last three years and he does not go to the shop and that he and the other partner look after the business. In cross-examination the witness stated that Roshan Lal had signed the application for license ; that income-tax return is filled on behalf of the firm and it is signed by both of them; that the firm has no other business except the business : 'Roshan Di Kulfi'.

(4) The Magistrate found both the accused guilty of the offences charged with and sentenced each one of them to rigorous imprisonment for six months and a fine of Rs. 2000.00 and in default of payment of fine to undergo rigorous imprisonment for six months. Dissatisfied with their conviction and sentence, the accused went in appeal to the Sesssions Judge. The appeal was heard by Shri J. D. Jain, Additional Sessions Judge, who maintained the conviction but reduced the sentence of fine to Rs. 1000.00 and in default of payment of fine to undergo rigorous imprisonment for two months. The sentence of imprisonment awarded by the Magistrate was upheld. Against their conviction and sentence both the accused filed a revision petition in this Court. Daring the pendency of the petition, Madan Lal accused has died.

(5) In order to appreciate the contention of Shri Gurcharan Singh, the learned counsel for the petitioner, a few facts need to be stated. The complainant proceeded against Roshan Lal, accused, on the ground that he was the owner of the shop : Roshan Di Kulfi. The defense of Roshan Lal was that the shop : Roshan Di Kulfi was a partnership business and that he and Kishori Lal are its partners and Kishori Lal looks after the business at the said shop. The accused further took the defense that he remained ill and he normally remained at his house. The accused in support of his defense examined Kishori Lal who produced the partnership deed D. W. 1/A. The trial Magistrate did not consider the defense of the accused and convicted him finding that he is the proprietor of the business: Roshan Di Kulfi. In appeal the Additional Sessions Judge found that the business : Roshan Di Kulfi was a partnership business. The Additional Sessions Judge further found that Roshan Lal, appellant, was the in charge of the business ; Roshan Di Kulft and that adulteration had taken place with the consent of connivance of the partners and the case fell under clauses (1) and (2) of Section 17 of the Prevention of Food Adulteration Act. The court held that Roshan Lal is vicarlously liable under section 17 of the Act and on this finding upheld the conviction and sentence as stated earlier.

(6) Shri Gurcharan Singh contended that there being no complaint against Roshan Lal that he was the in charge of and was responsible to the firm for the conduct of the business of the firm or that the offence had been committed with the consent or connivance of or is attributable to any neglect on the part of Roshan Lal. Roshan Lal could not be held guilty for the offence committed by the firm under section 17 of the Prevention of Food Adulteration Act. The counsel contended that the learned Additional Sessions Judge was not justified in making out a new case against the accused at the stage of appeal without amending the charge. This contention of the lsarned counsel is not without force. Section 17 of the Prevention of Food Adalteration Act deals with the offences by companies and it reads as :-

'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 dilligence 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.' It is clear from a reading of the provisions of section 17 that in certain cases, besides the company, which includes a firm, the officers In charge of and responsible to the company for the conduct of the business of the company have also been made liable for the offence committed by the company. The Additional Sessions Judge has, on evidence, recorded a finding that the business 'Roshan Di Kulfi' is a partnership business and Roshan Lal is one of Its partners and was in charge of and was responsible to the firm for the conduct of the business of the firm and on this finding proceeded to uphold the conviction. In my view the conviction of the petitioner is not legal and cannot be sustained. To prosecute a partner of a firm for an offence under the provisions of section 17 of the Prevention of Food Adulteration Act, it is necessary for the prosecution to allege and prove that the partner concerned was in charge of, and was responsible to the firm for the conduct of the business of the firm. It wag only after this initial burden was discharged by the prosecution that the burden lay on the accused to prove that the offence was committed without his knowledge or that ha exercised all due diligence to prevent the commission of such offence. In the case in hand, the complaint made against the petitioner was that he was the owner of the business Roshan Di Kulfi. There was no complaint against the petitioner that it was a partnership business and he was in charge of and was responsible to the firm for the conduct of the business of the firm. In the absence of this complaint it was not open to the learned Additional Sessions Judge to make out a new case for the complainant and find that the accused was a partner in the business and he was in charge of the business and was responsible to the firm for the conduct of the business of the firm. There being no complaint against the petitioner that he was a partner In charge of and was responsible to the firm for the conduct of the business of the firm, the petitioner could not be found guilty by the application of section 17 of the Prevention of Food Adulteration Act. In Mumtaz Begam v. The State Mr. Justice J. P. Mitter held :

'TOprosecute a director of a company for an offence under the Act and the Scheme made there under, section 14-A(l) makes it clear that it is incumbent upon the prosecution to prove that the director concerned was in charge of, and was responsible to. the company for the conduct of the business of the company. It is only when that initial onus is discharged by the prosecution that there is any onus upon the person concerned to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Where there is nothing in the petition of complaint to suggest that the director concerned was in charge of and was responsible to the company for the conduct of the business of the company there is no case against the director to answer and the prosecution must be quashed.'

I am in respectful agreement with the view expressed in the cited case and am of view that on the complaint made the conviction of the petitioner cannot be substained.

(7) The counsel for the State contended that the finding of the Additional Sessions Judge that the business was a partnership business is not warranted by the evidence produced on the record. The counsel contended that during the examination of the prosecution witnesses no suggestion was made to the witnesses what it was a partnership concern and that the accused had sprung a surprise on the complainant by taking- ing the plea of the business being a partnership business at the stage of his examination under section 342 Cr. P. C. and in these circumstances the plea of the accused that the business 'Roshan Di Kulfl' is a partnership business should be rejected. The accused in his statement under section 342 Cr P.C, took a definite stand that the business: Roshan Di Kulfi was a partnership business and the business was being looked after by Kishori Lal The accused in support of his defense produced the partnership deed and examined Kishori Lal. The trial Magistrate in his judgment made no reference to the defense evidence. The Additional Sessions Judge believed the defense version and found that the business was a partnership business. The only way open to the complainant was to make an application to the trial Magistrate for invoking his jurisdiction under section 540 Cr. P. C. and examine such witnesses who would be material in proving whether the business: Roshan Di Kulfi was a partnership business or not or move the court for amending the charge. In revision I find no scope for interfering with the finding of the court below that it is a partnership business

(8) Shri Sethi contended that in the interest of justice the Court may allow the complainant to produce evidence to prove that the business : Roshan Di Kulfi is not a partnership business. I find no reason to invoke the powers under section 428 Cr, P. C. for taking the additional evidence.

(9) In this view of the matter, I allow the petition and quash the conviction of the petitioner, Roshan Lal.


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