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H.J. Raval and ors. Vs. Shashikant Amarsinbhai Ajmera and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1977CriLJ1525; (1977)GLR703
AppellantH.J. Raval and ors.
RespondentShashikant Amarsinbhai Ajmera and ors.
Cases ReferredMohammed Yamin v. State of Uttar Pradesh
Excerpt:
.....court has observed as under :the law is now well settled that the act of storing an adulterated article of food would be an offence only if storing is for sale. this observation of the supreme court would clearly negative any charge against the accused. it would have been quite an interesting field of inquiry as to how to reconcile the first mentioned two judgments of the supreme court with the last mentioned two judgments especially when on the one hand it is held that where the article of food found to be adulterated was merely stored by the person who was not a distributor or sellor thereof and who had not manufactured it for sale, would not come within the inhibition of section 7(i) because the expression 'store' takes its colour from the expression preceding and succeeding it and..........preceding and words succeeding in the same section. he said that the person who manufactures for sale adulterated article of food would contravene section 7. similarly one who sells such an article of food or distributes it, would be governed by section 7. he however said that mere storing of article of food not meant for sale even if it is found to be adulterated, would not come within the purview of section 7. there is considerable force in this submission of mr. h. k. thakore.7. to recall here the business of accused no. 1, it is an admitted position that he runs a boarding house where he serves cooked food. he is not a dealer in condiments or spices. in other words, even if chilly powder and turmeric powder were kept by him or to use the language of law, stored by (him, they were.....
Judgment:

D.A. Desai, J.

1. One Mr. H. J. Raval Food Inspector of Surat Municipal Corporation filed a complaint against accused No. 1 New Saurashtra Hindu Lodge and Boarding. The allegation in the complaint is that when the Food Inspector visited the place of business of the accused No. 1 on 22nd June 1973 at 9.00 A. M. the Manager of the first accused was present and on a request made by the Food Inspector to the Manager to call the owner of the establishment, accordingly Amratlal Harjivandas Joshi who is the proprietor of the first named accused, the institute, came over to the place of business. Thereafter, the Food Inspector purchased 450 grammes of chilly powder after giving the reguisite intimation to accused No. 1. He also purchased 600 grammes of curd and 450 grammes of turmeric powder, and he informed accused No. 1 that the articles of food were purchased for analysis. Necessary panchnama was drawn up and articles of food purchased were divided into three equal parts and each port was kept in a bottle which was sealed. Sample bottle of each article was also given to accused No. 1. Food Inspector sent the samples of articles of food taken by him to the Public Analyst. The report of the Public Analyst (Ext. 20} shows that the sample of chilly powder contained a prohibited dye and was thus adulterated article of food. Similarly in the case of turmeric powder the report of the Public Analyst Ext. 21 shows that amongst others it included rice starch and therefore also it was an adulterated article of food. On these allegations prosecution, after obtaining necessary sanction, was launched against Amratlal Harjivandas Joshi the proprietor of the New Saurashtea Hindu Lodge and Boarding.

2. In the course of the trial one Shashikant Amarsibhai Ajmera was cited as a defence witness by the accused and he was examined as Defence Witness No. 4 for the accused at Ext. 78. It was taken out in his examination-in-chief conducted by the learned Advocate on behalf of the accused that the accused Used to purchase in bulk chilly powder and turmeric powder and various other spices and condiments for his use in his business of running a boarding house namely New Saurashtea Hindu Lodge and Boarding. Number of bills given by Shashikant Ajmera evidencing purchase of chilly powder and turmeric powder by the accused were got produced, as well as the extracts from the account books of Ajrnera in respect of the Boarding House of the accused were also got produced. After the evidence of Ajmera was over an application No. 89 was given on behalf of the complainant Food Inspector, requesting the Court to join Shashikant Ajmera as accused No. 2 and frame charge against him. The learned Magistrate first issued a notice to accused No. 2 to remain present and then directed the complainant the Food Inspector to keep himself and witnesses present for cross-examination by accused No. 2, and thereafter he decided to pass the order. Subsequently Shashikant Ajmera was joined as accused No. 2, and charge Ext. 90 was framed against him. At the conclusion of the trial, the learned Magistrate convicted accused No. 1 Amratlal Harjivandas Joshi for having committed an offence Under Section 16(1)(a)(i) of the Prevention Food Adulteration Act, 1954 and sentenced him to suffer R. I. for six months and to pay a fine of Rs. 1,000, in default to suffer further R. I. for two months :. Accused No. 2 was convicted for having committed an offence Under Section 16(1-C) X of the Prevention of Food Adulteration Act and sentenced to suffer R. I. for one month and to pay a fine of Rs. 1,000, in default to suffer R. I. for two months, However, he was acquitted of the offence Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.

3. Both the accused preferred appeals against their conviction and sentence in the court of the Sessions Judge at Surat. Criminal Appeal No. 21 of 1971 was preferred by original accused No. 2 Shashikant Ajmera and Criminal Appeal No. 22 of 1974 was preferred by the original accused No. 1, Amratlal Harjivandas Joshi. Both the appeals came up for hearing before the learned Additional Sessions Judge who by his judgment and order dated 12th June 1974 dismissed the same and confirmed the conviction and sentence of both the accused.

4. Mr. H. J. Raval, the original complainant-Food Inspector has preferred Criminal Appeal No. 585 of 1974 against that part of the judgment of the learned Magistrate by which accused No. 2 was acquitted for an offence Under Section 16(1-C) (sic) read with Section 7(1) of the Prevention of Food Adulteration Act (Act for short). Criminal Revision Application No. 274 of 1974 is preferred by original accused No. 1 against his conviction and sentence for an offence Under Section 16(1)(a)(i) of the Act and Criminal Revision Application No. 272 of 1974 is preferred by the original accused No. 2 against his conviction and sentence Under Section 16(1-C) of the Act. As these three matters arise out of a joint trial held by the learned Magistrate, against both the accused and from the same judgment both of the learned Magistrate as well as the learned Additional Sessions Judge, they were to be heard together. They came up before our learned brother M. P. Thakkar J. who referred it to a larger Bench as in his opinion 'the matter raises an important question of interpretation of Sections 10(7) ?, 14 and 16 of the F. A. Act which may arise frequently and is res integra till now.' That is how these three matters came up before us. In this judgment, the parties would be referred to by their original position before the learned Magistrate.

5. Accused No. 1 is admittedly the proprietor of New Saurashtra Hindu Lodge and Boarding at Surat. The business of accused No. 1 consists of serving of cooked or prepared food on payment. Accused No. 1 serves prepared food. He does not deal in articles of food or condiments. His is a business of boarding house, which would mean that on payment of charges fixed by him cooked food is served to the persons visiting the Boarding house. This aspect has considerable importance in this matter.

6. Accused No. 1 was charged for having committed an offence Under Section 16(1)(a)(i) read with Section 7(1) of the Act. Section 7(1) prohibits manufacture, sale etc. of certain articles of food. It provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food etc. Accused No. 1 is charged for having stored chilly powder and turmeric powder which were found to be adulterated articles of food. Mr. H. K. Thakore learned Advocate who appeared for original accused No. 1 did not dispute the findings of both the courts that chilly powder and turmeric powder of which samples were taken by the complainant Food Inspector were adulterated articles of food. His main and principal contention is that accused No. 1 does not manufacture for sale or store for sale or cells or distributes any article of food. It was contended that the word 'store' used in Section 7 does not imply a mere storing ; but it takes its colour from the words preceding and words succeeding in the same section. He said that the person who manufactures for sale adulterated article of food would contravene Section 7. Similarly one who sells such an article of food or distributes it, would be governed by Section 7. He however said that mere storing of article of food not meant for sale even if it is found to be adulterated, would not come within the purview of Section 7. There is considerable force in this submission of Mr. H. K. Thakore.

7. To recall here the business of accused No. 1, it is an admitted position that he runs a boarding house where he serves cooked food. He is not a dealer in condiments or spices. In other words, even if chilly powder and turmeric powder were kept by him or to use the language of law, stored by (him, they were to be used for preparing cooked food which he used to serve to his customers. He did not store them for sale. If in the final product-that is cooked food, the adulterated article of food, namely, chilly powder and turmeric powder are found present as no standard is prescribed for cooked food, Section 7(i) would not be attracted. Therefore, the question is whether mere storing of an adulterated article of food by a person who is not selling it or is not a dealer in it and who would use it for preparing cooked food could be said to be contravening Section 7(i). In Om Prakash v. Delhi Administration : 1976CriLJ197 Bhagwati J. speaking for the Court has observed as under :--

The law is now well settled that the act of storing an adulterated article of food would be an offence only if storing is for sale. If adulterated article of food is stored by any person for consumption or for any purpose other than sale, it would not come within the inhibition of the section.

This observation of the Supreme Court would clearly negative any charge against the accused. This aspect is almost beyond the pale of any controversy in view of the later decision of the Supreme Court in Delhi Municipality v. L. N. Tandan : 1976CriLJ547 wherein it has been in terms observed that expression 'store' in Section 7 means 'storing for sale' and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence Under Section 16(1)(a).

8. Mr. G. N. Desai, learned Public Prosecutor however urged that the very fact that accused No. 1 sold chilly powder and turmeric powder to the complainant Pood Inspector is sufficient to conclude that he sold an adulterated article of food and he would thereby contravene Section 7(i) read with Section 16(1)(a)(i). He in this connection relied upon the definition of word 'sale' in Section 2(xiii) of the Act and urged that sale to Inspector is selling of an adulterated article of food that is envisaged by Section 7(i) and would squarely fall within the inhibition of the section. In this connection, he invited our attention to Food Inspector, Calicut v. C. Gopalan : 1971CriLJ1277 in which it has been held that in view of the definition of word 'sale' sale of any article of food for analysis comes within the definition and, therefore, sample of food purchased by the Food Inspector satisfies the definition of 'sale' in the Act. Mr. Desai laid special emphasis on the fact that in the case before the Supreme Court, the Food Inspector had purchased sample of sugar from the stock of sugar kept by the accused in the premises to be used in the preparation of tea sold to the customers in the tea stall run by the accused under the licence issued by the Corporation. Tea is an article of food in respect of which standard is prescribed under the rules framed under the Act. Therefore that aspect itself may be sufficient to distinguish the observations of the Supreme Court. He also invited our attention to Mohammed Yamin v. State of Uttar Pradesh 1972 FAC 375 : 1972 Cri LJ 1198, in which the Supreme Court has held that sale to a Food Inspector is a sale for the purposes of Section 16 of the Act. He also wanted us to take a note of the fact that in the case before the Supreme Court sample of sugar was taken from a stock of sugar kept by the accused for manufacturing rab out of it and he was not a dealer in sugar. It would have been quite an interesting field of inquiry as to how to reconcile the first mentioned two judgments of the Supreme Court with the last mentioned two judgments especially when on the one hand it is held that where the article of food found to be adulterated was merely stored by the person who was not a distributor or sellor thereof and who had not manufactured it for sale, would not come within the inhibition of Section 7(i) because the expression 'store' takes its colour from the expression preceding and succeeding it and it would only mean 'store for sale', while on the other hand in all such cases when a Food Inspector takes a sample which the person having the article of food is bound to sell and in every such case, it can be said that apart from the person, from whom the sample is taken, not being a seller of the article, and he had stored it for his own consumption, yet once he sold the sample, which in law he was bound to sell to the Food Inspector his action of selling the article would attract Section 7(i) read with Section 16(1)(a). Mr. Thakore, however, was not prepared to pursue this legal battle any longer.

9. Mr. Thakore urged that accused No.1 is an old man, he has closed his business, he had purchased the articles in bulk from Shashikant Ajmera who holds licence from the Corporation for selling condiments and spices. There is voluminous evidence on record to show that accused No. 1 used to purchase in bulk spices and condiments from accused No. 2 for using the same in preparing cooked food which as a part of his business he served to his customers. He even contended that he had purchased them under a warranty. We would presently examine that aspect. However, we would agree with the learned Magistrate that there was no such warranty. But Mr. Thakore urged that if the obvious facts are kept in view that accused No. 1 is an old man, that he has closed his business, that he used to purchase the condiments and spices in bulk from accused No. 2 for the use in his boarding house, it is a case in which, the Court should take all these aspects into consideration and set aside the substantive sentence, if necessary, by increasing fine. We believe that in the facts of this case, it would be worthwhile to set aside the substantive sentence by increasing fine to some extent. We believe a fine of Rs. 3.000/- would meet the ends of justice.

10. In respect of accused No. 2 Shashikant Ajmera there are two matters be- fore the Court. One is criminal appeal No. 585 of 1974 preferred by the original complainant against his acquittal for an offence Under Section 16(1)(a)(i) read with Section 7(i) of the Act and Criminal Revision Application No. 274 of 1974 preferred by original accused No. 2 against his conviction and sentence Under Section 16(1-C) of the Act for having contravened Section 14 of the Act.

11. Taking the revision application filed by accused No. 2 first, it appears that he is convicted for having contravened Section 14 of the Act. Section 14 reads as under :--

14. No manufacturer, distributor or dealer of any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor.

Explanation.-- In this section, in Sub-section (2) of Section 19 and in Section 20A, the expression 'distributor' shall include a commission agent.

Section 14 imposes an obligation on manufacturer, distributor or dealer of any article of food to give a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Law casts an obligation on the manufacturer, distributor and dealer of an article of Food to give a warranty to the vender to whom the article of food is sold. Section 14 does not envisage any warranty being given by a vendor to the ultimate consumer who purchases the article of food from him.

12. The question is whether accused No. 2 when he sold chilly powder and turmeric powder in bulk to accused No. 1 was obliged to give a warranty as contemplated by Section 14. The first question is whether accused No. 2 is a manufacturer, distributor or dealer of articles of food. Both Mr. G. N. Desai and Mr. Adhyaryu urged that accused No. 2 was certainly a dealer in the various articles of food he sold. Accepting that without further discussion, it would mean that accused No. 2 who was a dealer sold articles of food to accused No. 1. Now, the question is whether accused No. 1 is vendor of the article because obligation to give warranty cast on the manufacturer, distributor or dealer while selling an article of food arises only when the article is sold to a vendor. Word Vendor' has to be understood in contradistinction to 'consumer'. Its grammatical meaning will have to be looked at and it means one who vends the article. In other words, vendor is one who sells the article to ultimate consumer. The status of vendor may be acquired in relation to a person with whom he deals. If a bulk supplier sells it to the retailer, it is a sale by a dealer to the vendor. In order to attract Section 14, the purchaser from manufacturer, distributor or dealer must be a vendor. In other words, purchase must be for a further sale. That is the clearest meaning one can give to word 'vendor' in Section 14. It is in consonance with the language and spirit of Section 14. Section 14 protects the consumer of articles of food from the greed or avarice of manufacturer, distributor or dealer and sellers of articles of food by selling something which the purchaser never wanted to purchase, that is selling an adulterated article of food. Now, the bulk manufacturer or distributor or a dealer would ordinarily sell the articles to a retailer and retailer must be assured of the nature and quality of articles purchased by him so as to protect himself when he sells it to ultimate consumer if the article is found to be adulterated. In a prosecution for contravention of Section 16(1)(a)(i) read with Section 7(i) it would be a good defence if a warranty is produced and accepted by the Court in view of the provision contained in Section 19(2)(a). The vendor who would be a retailer or a petty trader, he may purchase in order to further sell in small quantity to ultimate consumer, and thereafter he must be assured of the nature and quality of the article of food which he purchased for further sale because otherwise he would be responsible for selling adulterated article of food, if that article of food is found to be adulterated. The law, has, therefore, cast an obligation upon the manufacturer, distributor or dealer of any article of food when he sells such article to a vendor, it must be done under a warranty in writing guaranteeing the nature and quality of the articles sold to the vendor. The obligation imposed by Section 14 comes in when article of food is sold by either manufacturer, distributor or dealer and the purchaser is a vendor.

13. Turning to the facts of this case, accused No. 2 was certainly a dealer in articles of food. He holds a licence for that purpose. He sold chilly powder and turmeric powder to accused No. 1. But let us recall here that accused No. 1 was not a vendor of these articles. He purchased the articles for consumption in his business namely preparing cooked food. Accused No. 1 is not a vendor of the article. Mr. Desai however, urged that once accused No. 1 sold article of food to the Food Inspector, he became a vendor and sale by accused No. 2 to accused No. 1 would be by a dealer to a vendor and accused No. 2 could be said to have contravened Section 14. There is no substance in this contention. In order to attract Section 14, it must be shown that at the time when the article of food was sold by manufacturer, distributor or dealer, it was sale to a vendor and if it is so shown, liability to give a warranty would arise. Subsequent sale by a person who was not a vendor would not render the original seller of the article liable for giving a warranty which was not required to be given when the transaction was undertaken. To illustrate, a dealer of article of food sold it to a consumer and both the parties accepted the position that at the relevant time dealer sold the article to a consumer, consumer is certainly not a vendor. However, subsequently the consumer sold a part of that article to someone who needed it, could it be said that by subsequent act, the original dealer who at the time of transaction was not required to give warranty Under Section 14 would be liable for having contravened Section 14 An act which was an innocent one when committed, could not be styled as criminal by someone behaving in a manner other than that which was expected of him. It would be crime ex post facto. Section 14 is therefore, confined to transaction of sale between manufacturer, distributor or dealer on the one hand and the vendor of the article on the other hand and to answer that description at the time of purchase it would be vendor who would insist on warranty few? his future protection.

14. In this case turmeric powder and chilly powder was purchased by accused No. 1, from accused No. 2 ; and accused No. 1 was not a vendor, he was admittedly a consumer. Therefore, Section 14 would not be attracted and accused No. 2 could not therefore be convicted for contravention of Section 14 punishable Under Section 16(1-C) of the Act. His conviction and sentence are bad and they are liable to be quashed and set aside.

15. Mr. Adhvaryu however urged that accused No. 2 could be said to have contravened Section 16(1)(a)(i) read with Section 7(i) for having sold an article of food namely chilly powder and turmeric powder to accused No. 1. Accused No. 1 purchased chilly powder and turmeric powder from accused No. 1 in bulk. He then opened the packets for use in his kitchen, which was a kitchen of a boarding house. The cooks would be often picking up chilly powder and turmeric powder. The articles were not purchased by Food Inspector from sealed bags. If after accused No. 1 purchased turmeric powder and chilly powder and opened up the packets and his cooks dealt with them and if they are found to be adulterated, accused No. 2 would in no way be responsible for the same. No sample was taken from the articles of food in possession of accused No. 2. And in this case one aspect may be kept in view to show that accused No. 2 would in no way be responsible if chilly powder and turmeric powder purchased by the Food Inspector from accused No. 1 are found to be adulterated. Let us recall the certificate Exh. 21 issued by the Public Analyst in respect of turmeric powder. It shows presence of rice starch coming out of rice flour. What does it show. A cook while picking up turmeric powder may have his hands soiled with rice flour which would get mixed with turmeric powder. Of course, in the case of chilly powder it is said that it contained prohibited dye. But for that accused No. 2 could not be held responsible because there is no evidence as to how the packet was handled after it was purchased by accused No. 1 from accused No. 2. Therefore, the appeal by the original complainant against the acquittal of accused No. 2 for having contravened Section 7(i) punishable Under Section 16(1)(a)(i) must fail.

16. Accordingly, Criminal Appeal No. 585 of 1974 preferred by the original complainant is dismissed. Criminal Revision Application No. 272 of 1974 preferred toy the original accused No. 2 Shashikant Amarsibhai Ajmera is allowed and his conviction for an offence Under Section 16(1-C) read with Section 7(i) of the Prevention of Food Adulteration Act and sentence of R. I. for one month and fine, of Rs. 1,000 are quashed and set aside. Fine if paid is ordered to be refunded. Criminal Revision Application No. 274 of, 1974 preferred by original accused No. 1 is partly allowed and his conviction for an offence Under Section 16(1)(a)(i) read with Section 7(i) is confirmed but big substantive sentence of R. I. for six months is modified and reduced to imprisonment till rising of the Court and a fine of Rs. 3,000/- in default to suffer R. I. for six months is imposed.

17. Order accordingly.


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