R.N. Aggarwal, J.
(1) This is an appeal by the Municipal Corporation of Delhi against the judgment dated 9-9-1975 of Shri O.P. Singla, Additional Sessions Judge, Delhi acquitting the respondents Madan Lal and Chela Ram of the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
(2) Briefly stated the facts of the case are that on 28th July, 1970 Shri Khem Singh, D.S.P., C.B.I. (Public Witness -3) received a secret information that Madan Lal and his father Chela Ram dealing in adulterated articles of food. On that PW-3 organized a raiding party consisting of a number of Food Inspector and some independent witnesses and raided premises No. 145, Gali Nal Masjid Tabar Khan, Naya Bans alleged to be the godown of M/s. Chela Ram Madan Lal. Jagdish Chander claimed to be the servant of M/s. Chela Ram Madan Lal. He was asked to open the godown. Gunny bags containing amchoor. Chillies, haldi and dhania etc. were found in the godown. Food Inspector Prem Parkash (Public Witness -2) took a sample of Haldi powder on payment of price for purposes of analysis. (It may be stated that a number of samples of various articles i.e. Haldi powder and chillies were taken by the Food Inspectors from Jagdish Chander). Proceedings for the taking of the various samples went on from 5 p.m. till about early hours of the morning. PW-1 sent on part of the sample of Haldi powder bearing No. PP-297) to the public analyst who on examination found that the sample contained 20.0% foreign extraneous matter. The public analyst opined that the sample is adulterated due to the presence of 20.0% foreign extraneous matter.
(3) On the receipt of the report: of the public analyst the Municipal Prosecutor on 26th August 1971 filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act against Jagdish Chander-vendor Madan Lal, Chela Ram and the firm M/s. Chela Ram Madan Lal. Madan Lal and Chela Ram were alleged to be partners of the firm M/s. Chela Ram Madan Lal.
(4) During the recording of the preliminary evidence the prosecution shifted its case and alleged that the premises from where the samples were taken bore municipal numbers 147 or 148 and not 145. The Food Inspector gave evidence that on a subsequent visit to premises No. 145, on enquiry had come to know that premises No. 145 did not belong to M/s. Chela Ram Madan Lal. The Food Inspector deposed that the premises from where the samples had been lifted bore Municipal No. 147 or 148. We may notice that in the complaint which was filed after more than one year of the taking of the samples, there is no allegation that the premises from where the samples were taken was not No. 145 and, in fact. the municipal No. of those premises was 147 or 148. It was only in the Court on 3-2-1972 that the Food Inspector stated that the number of the premises from where the samples were taken was probably 147 or 148.
(5) Madan Lal and Chela Rani completely, denied any connection with premises No. 147 or 148. Both the accused-stated that they lived in premises 146 Masjid Tabar Khan Naya Bans, Delhi which is owned by Gurdeep Singh. They further stated that Moti Lal Public Witness with whom they had litigation was responsible for that false prosecution. Chela Ram stated that he was a licensed fruit vendor and his son Madan Lal was plying a 'three wheeler scooter. He further stated that for a brief period they did do business in condiments but he and his son Madan Lal were sleeping- partners and one Sham Sunder was Executive partner. Chela Ram stated that he had brought with him his license and other documents to support his averment that he was a licensed fruit vendor.
(6) Madan Lal stated that he was a licensed three wheeler scooter driver and that his father Chela Ram is a fruit seller. He further made a statement similar to his father Chela Ram Madan Lal completely denied his connection with the godown and the shop. He also denied that Jagdish Chander was their servant.
(7) During the pendency of the trial the firm Was discharged for the reason that a sentence of imprisonment is compulsory and since no sentence of imprisonment could be imposed on a firm or a company, it has to be acquitted. The trial court in para 5 of the judgment has stated that the firm was discharged by Shri S.C. Ahuja by his order dated 23-2-1973. We have not been able to find this order on the record. Jagdish Chander had pleaded guilty to the charge. The trial Magistrate found Jagdish Chander, Madan Lal and Chela Ram guilty of the offence charged with and sentenced them to various terms of imprisonment and fine.
(8) Against the aforesaid judgment, all the accused went In appeal. Shri O.P. Singla, Additional Sessions Judge acquitted Madan Lal and Chela Ram on the ground that since the firm had been discharged the partners could not be convicted. The learned judge in coming to the above conclusion relied upon some authorities. As regards Jagdish Chander the learned Judge released him on probation of good conduct.
(9) Shri Soni, learned counsel for the respondents fairly stated that the ground on which the Additional Sessions Judge had acquitted Madan Lal and Chela Ram is no longer a good law and, thereforee) he is not supporting the acquittal on the ground mentioned in the judgment of the Additional Sessions Judge. We find that in the case Mcd v. J B. Bottling Co. Pvt. Ltd. 1975(1) Fac 321, a full Bench of this court held ;
'That before the amending Act of 1964, an accused could, according to Section 16 of the unamended Act, be punished with fine or with imprisonment or with both. The legislation of 1964 was to make the penalties more stringent and it Was never the intention of legislature that a company involved in an offence of more serious nature, calling for a compulsory sentence of imprisonment and fine should go scot free. The sentence of Imprisonment as provided In Section 16 is compulsory only where it can be awarded. In case of a legal person like a company it can be a sentence of fine only. It is, thereforee, held that a company as defined In Section 17 of the Prevention of Food Adulteration Act, 1954, does 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.'
(10) We find that the ground on which the Additional Sessions Judge had acquitted the partners is legally not correct.
(11) We have been taken through the record by Mrs. Usha Kumar and we find that there is no clear and convincing evidence on the record that premises No. 147 or 148 was in possession of the firm Chela Ram Madan Lal. The case of the prosecution right up to the filing of the complaint was that the sample was taken from the godown at premises No. 145 Gali Nal Wali, Naya Bans. It was during the evidence that the Food Inspector cam forward with the version that the premises from where the samples were taken was not premises No. 145 but premises No. 147 or 148. PW-5 Moti Lal Goyal gave evidence that he and his brother jointly owned premises No. 147 to 156 in Masjid Tabar Khan Gali Nal Wali and that Madan Lal and Chela Ram had forcibly occupied the premises No. 147 and 148 and that they were using the said premises both for their residences and godown. The witness further deposed that M/s. Chela Ram Madan Lal have a shop at 119, Gali Nal Wali and that shop is at a distance of 25 to 30 yards from premises No. 147 and 148. In cross-examination the witness admitted that he had filed a suit against Chela Ram etc. for illegal occupation of his premises. There is nothing on the record to show as to when Chela Ram and Madan Lal had taken forcible possession of premises No. 147 and 148. There is also no evidence as to since when they were using the said premises as a godown. The Municipal Corporation of Delhi would have some record that premises Nos. 147 and 148 were in possession of Chela Ram and Madan Lal and they were using part of the premises as a godown.
(12) We also have no' clear evidence that at the relevant time M/s. Chela Ram Madan Lal were having a shop at premises No. 119. If M/s. Chela Ram Madan Lal were running a shop at 119, there would be documentary proof to that effect with the Municipal Corporation. M/s. Chela Ram Madan Lal must have applied for a license for running the shop. Another circumstance which makes the entire version of prosecution doubtful is that shop at 119 is only at a distance of 25 to 30 yards from the godown. The proceedings regarding the taking of the samples lasted for almost 12 hours. The food Inspectors would have sent some man to the shop of M/s. Chela Ram Madan Lal for calling the partners. There is no evidence that the shop was closed or Madan Lal and Chela Ram were not available at the shop or that they had deliberately disappeared from the shop. The servant would have definitely asked the Food Inspectors to call the proprietor.
(13) For the reasons stated we hold that the prosecutor case is not free from doubt. We accordingly decline to interfere with the order of acquittal though for reasons different to the one given by the Additional Sessions Judge the appeal is dismissed.