Kan Singh, J.
1. This is a revision application by one Kanhaiyalal. He was convicted of an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter to be referred as the 'Act', by the learned First Class Magistrate, Abu Road and sentenced to a fine of Rs. 1000/-. On appeal the learned Additional Sessions Judge, Sirohi, maintained the conviction, but reduced the sentence of fine to Rs. 500/- only.
2. The facts are not in dispute. The accused is a dealer in food articles at Abu Road and he had a licence under the Act. On 19-1-68, P.W.I Shri Sant Kumar, the Food Inspector, Abu Road Municipality, went to the shop of the accused and from a sealed tin of mustard oil he purchased a sample of 375 millilitres for enalysis. After the necessary formalities the sample was sent to the Public Analyst at Jaipur, It was found to be below standard on account of its specification value being 186.0 when it should have between 168 to 176 as prescribed under the Rules made under the Act and its B.P. Value was 66.7 when it should have been 68.0 to 60.5. Also the sample had added colour. After obtaining the requisite sanction, the Inspector lodged the complaint in the court with the result stated at the outset.
3. The accused took the stand that the sealed tin had been purchased by him from a licensed dealer at Sumerpur one Gulabchand Anantram, who had received his stock of mustard oil from the manufacturers, B.W. Oil Industries at Jaipur. The tin, according to the accused, had the mark of the manufacturers & a label add he had kept the tin in his shop in the same condition as he received it. The accused examined one witness in defence. He was the Munim of the firm Gulabchand Anantram at Sumerpur. He stated that the tin had been despatched by the Sumerpur firm, to the accused at Abu Road with the 'Bijak' and the firm was having the licence for the last 10 years, but at the relevant time it had been sent for renewal and had not been received back.
4. In assailing the conviction of the accused his learned Counsel contended that the accused was innocent & he could not have been aware that the contents of the sealed tin were below standard and, therefore, he was not guilty. Learned Counsel cited Delhi Bather v. Corporation of Madras AIE 1940 Mad. 221 and B.K. Verma v. Corporation : AIR1971Mad40 in support of his contention.
5. Delhi Bather's case AIR 1940 Mad. 221 was in respect of butter offered for sale in sealed tins. It contained extra moisture admixed in the process of manufacture. The prosecution was under the Madras Prevention of Adulteration Act, 1918, for offering for sale butter containing more than twenty percent of water. The stock was of Lord's Butter Company and the evidence of the Assistant Manager of the Lord's Dairy Farm showed that the extra moisture must have got unavoidably admixed in the process of the manufacture of the butter. The fats of the case turned on the application of proviso (ii) to Section 5 which laid down that no offence under that section shall be deemed to have been committed in such cases. It was in these circumstances that the conviction of the accused was set aside. The case does not render any help as the Prevention of Food Adulteration Act, 1954, does not have a proviso alike the one that came up for consideration.
6. In B.K. Verma v. Corporation : AIR1971Mad40 , the adulteration was found to be negligible and, therefore, Section 96 Penal Code was applied and the conviction was set aside. This case too does not afford much assistance.
7. The case, however, raises the general question as to whether it is open to an accused in a prosecution under the Act to establish his defence by showing that he had no mens rea. The offences punishable under the Act relate to maintenance of public health. In Warner v. Metropolitan Police Commissioner 1968 (2) All. E.R. 356, the House of Lords had to consider the question whether a statutory offence is an absolute offence in the sense that the belief, intention or state of mind of the accused is immaterial or irrelevant. In dealing with the question their Lordships observed regarding the previous authorities that the law on this matter was in some confusion and two schools of thought were noticed. Lord Raid in his speech observed that there was no doubt that for centuries mens rea had been an essential element in every common law crime or offence. Equally there is no doubt that Parliament, being sovereign, can create absolute offences if so minded. The learned Lord, however, noticed that they were not referred to earlier cases except quite recent cases in which it was held that there was no defence to a charge of a serious and truly criminal statutory offence to prove absence of mens rea. On the other hand, it was noticed that there was a long line of cases in which it was held with regard to less serious offences that absence of mens rea was no defence. Typical examples of such offences where under the public health, licensing and industrial legislation. As an example is was pointed out that if a person acts up as say a butcher, a publican, or a manufacturer and exposes unsound meat for sale, or sells drink to a drunk can or certain parts of his factory are unsafe, it is no defence that he could not by the exercise of reasonable care have known or discovered that the man was drunk or that his premises were unsafe. He must take the risk and when it is found that the statutory prohibition or requirement has been infringed he must pay the penalty. This may will seem unjust, but it is a comparatively minor injustice and there is good reason for it as affording some protection to his customers or servants or to the public at large, The learned Lord added that although the person might be able to show that he did his best, a more skilful are diligent man in his position might have done better, and when we are dealing with minor penalties which do not involve the disgrace of criminality it may be in the public interest to have a hard and fast rule. Strictly speaking there ought perhaps to be a defence that the defect was truly latent so that no one could have discovered it; but the law has not developed in that way, and one can see the difficulty if such a defence were allowed in a summary prosecution. These were, according to Lord Reid, only quasi-criminal offences and it does not really offend the ordinary man's sense of justice that moral guilt is not of the essence of the offence. Their Lordships were considering the provisions of the Drugs (Prevention of Misuse Act, 1964. The majority of their Lordships except Lord Reid were of the view that the offence under the Act was one of absolute liability though they were not in general agreement as to the precise degree of mens rea that was for possession regarding a dangerous drug. This case has been commented on in the Modern Law Review Vol. 32 (March, 1969) page 902. As pointed out in the Article Lord Reid proceeded on a narrow grounds by considering the word 'possession' itself. Lord Pearce pointed out in his speech at page 380 that the 1964 Act forbade certain acts and it expressly exempted certain persons who would obviously have no mens rea and, therefore, further exemption from the act of those who cannot be shown to have a guilty intention would seriously impair its effectiveness and the express exemptions show that was not intended.
8. Under the Prevention of Food Adulteration Act, 1954, Section 16 to my mind, creates an obsolute offence. As to who are exempted from liability is provided by Section 19 which I may read:
Section 19. Defences which may or may not be allowed in prosecution under this Act.
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale,
(2) A vandor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food, if he proves--
(a)that he purchased the article of food --
(i) in a case where a licence is prescribed for the sale there of from a duly licenced manufacturer, distributor of dealer.
(ii) in any other case, from any manufacturer distributor or dealer, with a written warranty in the prescribed form, and
(b)that the article of food while in his possession was propety stored and that he sold it in the same state as he purchased it,
(3) Any person by whom a warranty, as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.
Sub-section (2) is germane to the consideration of the present case. If the offender proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof for a duly licenced manufacturer, distributor or dealer and in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form and further that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it, then he shall not be deemed to have committed the offence pertaining to the sale of the misbranded article of food. The accused would have succeeded in establishing his defence under Section 19, if he were to show that the dealer at Sumerpur from whom he had purchased the tin was a licensed dealer at the time. He would be licensed dealer if his licence were current, otherwise he would be a dealer other than a licensed dealer from whom a written warranty in the prescribed form would be necessary under Section 19 It is not his case that he had a written warranty. D.W.I Satya Narain has, no doubt, stated that the firm had a licence for the last 10 years but he has admitted that at the relevant time the licence had been sent for renewal and, therefore, he was not able to produce the licence. It was not enough that the licence was sent for renewal. It was further required to be proved that the order for renewal had been passed. That being so, the accused cannot derive any benefit from Section 19 of the Act. However, it does appear that the tin being sealed, the accused could not have been aware that the contents were below standard and not in conformity with the rules under the Act. However it does appear that tin being sealed, the accused could not have I been aware that the contents were below standard & not in conformity with the rules under Act. This reduces offences to be only a technical one Here I should not be understood to suggest that the offences under the Act are minor ones. I should think in some respects they are more heinous than many offences under the Penal Code Offence under Section 16 of the Act is punishable 1 with a minimum sentence of imprisonment for six months unless there are special reasons, but in the present case the prosecution seems to be an ill-advised one and was oppressive. The Food Inspector on coming to know that the tin had been purchased from another dealer who was supposed to have a license and the latter in his turn had received it from the manufacturer he should have tried to get at the persons who were responsible for selling the tin of oil in question. The accused was yet to sell the oil. He had only kept it in his shop and the Inspector was the first to purchase it for sample. Though, in law, this would constitute a sale, yet before the accused had atleast opened the seal he could not have any inkling that the contents were below standard and thus adulterated. This is, therefore, a case where only a nominal sentence of fine is called for. A sentence of twenty rupees fine should meet the ends of justice, in default the accused shall undergo a week's simple imprisonment. The excess fine, if already deposited, shall be refunded to the accused.
9. In the result, the revision application is allowed in part. While the conviction of the accused is maintained, the sentenced of fine is reduce to Rs. 20/- only, in default one week's simple imprisonment.