D.N. Das Gupta, J.
1. This is a Revision Petition directed against the order of an Additional Sessions Judge, Burdwan, upholding the convictions and sentences of the petitioners under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954,
2. The prosecution case is that the Food Inspector of the Municipality of Asansol went to the shop of the petitioners on the 12th April, 1957, at about 9'O clock in the morning accompanied by a Sub-Inspector of Police. The Food Inspector purchased 6 chhataks of musturd oil from the petitioners, who were in the shop at that time looking after their business, and paid The price thereof. There was another person in the shop who was called as a witness by the Food Inspector to be present at the time when the sample of musturd oil was purchased. After observing all formalities he divided the oil into three parts and packed and sealed them. One phial was handed over to the petitioners and two other phials were taken away by the Food Inspector who sent one of the two phials to the Public Analyst for necessary action. On analysis the oil was found to be adulterated by the Public Analyst. Thereafter the prosecution was instituted by the Administrator of the Municipality.
3. The petitioners pleaded not guilty. The defence was that the oil was not seized from the shop but from a room at the back of the shop, that the provisions of Section 10(7) of the aforesaid Act were not properly complied with, and that petitioner Ganesh Lal Shaw was not at the shop at the material time.
4. The accused persons were convicted by a learned Magistrate of the First Class, Asansol, under Section 16 of the Prevention of Food Adulteration Act and sentenced to pay a fine of Rs. 1,000/-each, in default to undergo simple imprisonment for five months each. The conviction was obviously under Section 16(1)(a)(i) of the Act, this being the first conviction under the Act. The convictions and sentences were upheld by the learned Judge as already indicated above. Two witnesses were examined on behalf of the prosecution, namely, P.W. 1 Sailaja Bhusan Some, Food Inspector of the Municipality of Asansol and Jyotish Chandra Chakravorty (P.W. a), Sub-Inspector of Police. P.W. 1 purchased the sample of mustard oil and paid the price thereof. P.W. 2 who accompanied the Food Inspector to the shop became a witness at the time when the sample was taken. Another person who was present in the shop at that time, namely, Satya Narain became the second witness at the request of the Food Inspector. Satya Narain has not been called as a witness by the prosecution in this case. The learned Magistrate accepted the prosecution case and overruled the objections raised on behalf of the defence. The learned Additional Sessions Judge dealt with the facts and the law and he agreed with the findings of the learned Magistrate. The defence case was stated in the judgment by the learned Additional Sessions Judge as follows:
It is contended in this appeal that the trial of the appellants was vitiated as the provisions of Section 10, Sub-section 7 of the Act were not complied with, and that the mustard oil was not seized from the shop. It was further contended that the sentences were heavy, it was also contended that the appellant Ganesh was not in the shop at the time of taking the sample or purchasing the mustard oil and had not anything to do with the shop from where the musturd oil was purchased and sample taken.
The learned Additional Sessions Judge found that both the petitioners were owners of the shop, that although the sample was actually sold by Ganesh Lal. his son Bhagwandas, the other petitioner, was also liable as an owner of the shop, that the provisions of Section 10(7) had been complied with, that the search witness who had been examined by the prosecution, namely, P.W. 2, was a reliable witness and that the prosecution had given a satisfactory explanation for not examining the other witness, namely, Satya Narain who according to the prosecution had disappeared or whose where abouts were not known.
5. Mr, Mookerji appearing on behalf of the petitioners has taken a number of points. One of the points is as regards the interpretation of Sections 7 and 16 of the Prevention of Food Adulteration Act. Mr. Mookerji contends that there is no satisfactory evidence that the petitioners are the owners of the shop, that a servant or agent cannot be held liable if he has no knowledge that the stuff that he is selling is adulterated, and for his contention he relies upon a decision of the Kerala High Court reported in State v. Kunchw : AIR1960Ker13 . Now this point is covered by a Bench decision of this Court reported in Peary-mohan Saha v. Harendranath : AIR1930Cal295 . That case was referred to by their Lordships of the Kerala High Court but their Lordships declined to follow the Calcutta case. On the other hand their Lordships adopted the reasons given, in a Madras case reported in In re, S. Moses : AIR1959Mad185 . Referring to the decision in the Calcutta case, the judgment in which case was delivered by Rankin, C.J. Velu Pillai, J., sitting with T.K. Joseph, J., observed as follows:
It strikes us, that the case in favour of the servant has been very forcibly stated in the above passage but the decision in the case went against the servant partly by adopting the interpretation placed by Lord Coleridge, C.J., in Hotchia v. Hindmarsh (1891) 2 QB 181 on the expression 'no person shall sell' occurring in Section 6 of the English Sale of Food and Drugs Act, 1875, as sufficiently comprehensive to take in a servant, and partly by relying on the first clause of Section 11 of the Bengal Act, which contemplates also an 'agent selling the article'. It may at once be stated, that these two grounds of the decision, have no relation to the language of the provisions in the Act with which we are concerned. It has to be noted, that in : AIR1959Mad185 , a case under the same provisions of the Act we are considering, a division Bench of the Madras High Court consisting of Panchapakesa Iyer and Basheer Ahmed Sayeed, J., declined to follow ILR 57 Cal 1084 : AIR 1930 Cal 295.
6. In an unreported Bench decision of this Court to which I was a party (Criminal Appeal No. 239 of 1959 disposed of on 6th February, 1961) (Cal), we had occasion to consider the decision of the Madras High Court referred to above and we expressed our dissent from that decision. We held that the actual seller falls within the prohibition of Section 7 of the aforesaid Act and that the phrase 'himself or by any person on his behalf occurring in Section 7 was obviously included in the section to include also the owner of the articles sold who but for that phrase might have escaped or tried to escape. Excluding words not necessary for the purpose of the instant case Section 7 lays down,
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -
(i)any adulterated food;* * * *
Now the case reported in AIR 1930 Cal 295 was a case under the Bengal Food Adulteration Act. 1919, Section 6 of which Act is quoted below.
No person shall directly or indirectly himself or by any other person on his behalf sell, expose for sale or manufacture or store for sale any of the following articles.
7. I am bound by the Bench decisions of this Court mentioned above and I am also unable to follow the Kerala decision referred to above in which the reasons in the above Madras decision were adopted. The matter has, however, been set at rest by the recent Supreme Court decision reported in Sarjoo Prasad v. State of Uttar Pradesh : 1961CriLJ747 . The judgment of the Supreme Court was delivered on the 16th December, 1960. In delivering the judgment of the (Supreme Court Shah, J., observed that the prohibition under Section 7 of the Prevention of Food Adulteration Act applies to all persons who sell adulterated food and for contravention of the pro- hibition all such persons who contravene are liable. I Mr, Mookerji appearing on behalf of the petitioners tried to distinguish the facts of the Supreme Court case from the facts of the instant case. Mr. Mookerji drew my attention to the observation in the decision of the Supreme Court case that the appellant there was in charge of the shop at the time when mustard oil was sold to the Food Inspector and he contends that that was the 'key' to the whole judgment and that the seller cannot be held liable unless he is in charge of the shop. Even assuming that it is necessary for the prosecution to prove that the person who sells must at the time of the sale be in charge of the shop, there are findings of the courts below that at the time when the mustard oil was sold to the Food Inspector in the instant case the two petitioners were moving about in the shop and looking after the business. It can be reasonably inferred that accused Ganesh who sold the sample was in charge of the shop at the material time. The Courts below have also found that the two petitioners are the proprietors of the shop. I must, however, say that the evidence to prove that the petitioners are the proprietors of the shop is not satisfactory; besides the oral testimony of the Food Inspector there is no other evidence to show that the petitioners are the proprietors of the shop. It was quite easy indeed for the prosecution to have produced the Municipal Register to show that the trade licence is in the names of the petitioners. In view of withholding of that material documentary evidence it is not possible for me to say that it has been proved that the petitioners are the owners of the shop. In that view it is not possible to sustain the conviction and sentence of petitioner Bhagwandas Shaw (son of petitioner Ganesh Lal Shaw) who did not actually sell the sample of mustard oil. Regarding the actual fact of selling the Food Inspector does not name the person who sold; he gave evidence in such a way as to implicate both the petitioners. But the next witness, namely, P.W. 2, the Sub-Inspector of police says that the sample was actually sold by petitioner Ganesh Lal to the Food Inspector. Bhagwandas did not actually sell. Therefore, as I have already said, it is not possible to support the conviction and sentence of Bhagwandas on the footing that he is one of, the owners. Regarding the other petitioner, the conviction and sentence have to be upheld in view of the Supreme Court decision provided that all the elements of the offence have been proved.
8. The next point that has been argued by Mr. Mukherjee is regarding the interpretation and applicability of Section 10(7) of the Prevention of Food Adulteration Act, 1954. Section 10(7) provides,
Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.
In interpreting the sub-sections Mr. Mukherjee refers to the provisions of Section 103 of the Code of Criminal Procedure which lays down that at the time of the search two or more respectable persons of the locality should be called. Mr. Mukherjee contends that it is true that there has been some departure regarding the phraseology in Section 10(7), but he contends that though there has been some change in the letter of the law, the spirit of the law as embodied in Section 103 is there, Mr, Mukherjee's contention is that wherever possible the persons to be called as witnesses should be respectable persons and also persons of the locality. Mr. Mukherjee further contends that the provisions of Section 10(7) are not a mere formality, not a mere decoration in the Act. According to Mr. Mukherjee the phrase 'as far as possible' indicates that wherever possible witnesses must be called and that if it is not possible to secure the witnesses, for example, in a far away place where there is no habitation or at some odd hour of the night, then only this provision of calling witnesses can be relaxed, otherwise not. Certain decisions have been placed before me by Mr. Mookerji on the point of interpretation of this sub-section. One of the decisions is reported in City Corporation of Trivandrum v. V.P.N. Aruna chalam Reddiar : AIR1960Ker356 . In delivering the judgment of the Division Bench Sankaran, C.J., observed that the non-compliance with the requirements of Sub-section (7) of Section 10 is a serious irregularity which has caused material prejudice to the accused. Another case is reported in State of Mysore v. Udipi Co-operative Milk Society Ltd 1960 Cri LJ 494 : AIR 1960 Mys 80. That was on the point whether it was necessary to examine at the trial the witnesses called by the Food Inspector at the time of taking the sample. In delivering the judgment Hegde, J., observed,
Law does not require that these witnesses or any one of them should be examined at the time of the trial. In the circumstancs of any particular case, the prosecution may choose to examine one or more of these witnesses. If the Court is unable to place full faith, on the evidence of the concerned Food Inspector the non-examination of the attestors may assume importance.
A third decision will be found in Kapoor Chand v. City of Jabalpur Corporation : AIR1960MP179 His Lordship observed,
In my opinion, the non-calling of at least two persons to witness the taking of the sample did not vitiate the trial. In the first place, the direction: 'call not less than two persons to be present at the time when such action is taken and take their signatures,' is prefixed by the words: 'as far as possible', and consequently it is not absolute in its terms. It gives a discretion to the food inspector to call at least two witnesses, if the circumstances of the case permit it, of which he is made the judge. A mandate which leaves it open to the mandated person to call or not to call witnesses at. his discretion cannot be called a mandate properly so called at all.
It may also be noted that no penalty is prescribed for any non-compliance. The provision simply regulates a manner in which the food inspector is to exercise his power of taking samples and an exercise of power in this regard of the direction is not rendered ineffectual. The language thus shows that the provision for calling two persons as witnesses is directory and not mandatory, and consequently the irregularity in not complying with it in terms would not vitiate the whole trial...
It was observed in the case of In re. Raju Konar : AIR1959Mad118 that the expression 'as far as possible' is intended to obviate the necessity of the presence of two persons and securing their signatures if the circumstances under which the Inspector takes the sample were such that there could not possibly be two persons present at the time; it did not mean that when two persons were available he could dispense with them and take protection under the clause 'as far as possible'. Mr. Anil Sen appearing on behalf of the State placed before me that the case reported in AIR 1960 Mys 80 already referred to above. Mr. Sen has also placed the decision in the case of Mohd. Shafaat Husain v. The State 1959-57 All LJ 624. The headnote is,
It is not correct to say that whenever the provisions of Section 10(7) of the Prevention of Food Adulteration Act had not been complied with the accused should be acquitted. One of the meanings which can be assigned to the use of the words 'as far as possible' in Section 10(7) is that the sample should be taken in the presence of two or more respectable witnesses unless they are not available. Another view which would be more equitable is that this rule should be rigorously applied where the prosecution is mala fide or in the opinion of the court, non-compliance of the rule has caused prejudice to the accused. But where it appears that what the prosecution witnesses are deposing is true and the accused has not in any way been prejudiced by the non-compliance of Section 10(7), the law should take its normal course, namely, that the guilty person should be punished.
9. Coming to the facts, this is not a case where no witness was called by the Food Inspector at the time of taking the sample but this is a case where two witnesses were called, one of whom was the Sub-Inspector of Police, P.W. 2; the other person, according to the prosecution, is not now available. Regarding the prosecution witness No. 2 Mr. Mookerji argues that he is a witness who ordinarily accompanies this Food Inspector whenever he goes to take samples of food stuff, that he is not a witness of the locality, that his office is quite a number of miles away from the shop from which the samples were taken and that he is not a witness who possesses those attributes which would place his evidence above suspicion or, in-other words, he is not a witness who is at all reliable or trustworthy or independent. Such a witness should not inspire confidence in any court. Indeed that is a pure question of fact, the courts below have accepted his evidence as true. It is-not possible for me to say that simply because the police witness went with the Food Inspector at the time of certain searches or simply because he is a witness who belongs to the police force his evidence should be discarded. The learned Magistrate who tried the case had the opportunity of seeing and hearing the witnesses and he accepted his evidence. The lower appellate court on a consideration of the evidence and the circumstances accepted his evidence. Therefore, I do not find any reason why I should discard his evidence at this stage, Regarding the other search witness the prosecution gave an explanation which was considered by the Courts below to be satisfactory. Even assuming that the explanation' is not satisfactory I cannot say that the provisions of Section 10(7) have not been complied with. At least one of the witnesses has been called as a witness and examined in court. Indeed, Law does not require that any witness is to be examined in court. Of course, it is desirable that in a case like this, the prosecution should examine all the search witnesses if possible, to dispel all doubts about the manner in which the sample was taken and about the place from where and the person from whom the sample was taken, in other words, to put the entire transaction above board. This is all the more necessary in view of the severe nature of the penalty prescribed by the Prevention of Food Adulteration Act and also in view of the fact that for a second conviction imprisonment is compulsory. But on the facts of the present case it is not possible for me to agree with Mr. Mookerji that there has been no compliance with the provisions of Section 10(7) of that Act.
10. Next it is contended by Mr. Mookerji that it is of the utmost importance for the purpose of safeguarding the liberty of the individual that the court should always bear in mind that unless the Statute either clearly or by necessary implications rules out mens rea as an essential element in an offence, an accused should not be found guilty without proof of mens rea for the crime. The relevant section to be referred to in the Act is Section 19. Sub-section (1) of Section 19 lays down,
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.
The gist of this sub-section is that the accused vendor cannot plead that he was ignorant of the nature, substance or quality of the food sold by him in a prosecution for an offence relating to sale of any adulterated or misbranded article of food. The point has also been settled in the recent decision of the Supreme Court in the case of : 1961CriLJ747 referred to above where His Lordship of the Supreme Court observed,
If the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.
Therefore, in view of the provisions of the Statute itself and of the decision of the Supreme Court in the case of : 1961CriLJ747 I would hold that it was not necessary for the prosecution to prove any mens rea for the crime,
11. Mr, Mookerji has also drawn my attention to the provisions of 'written warranty' in Sub-section (2) of Section 19 for the purpose of showing that these provisions can apply only to the master and not to the servant and that, therefore, a servant selling adulterated food can never be liable under the Act. Under that sub-section the vendor is allowed to prove by way of defence that the article of food sold by him was the same in nature, substance and quality as demanded by the purchaser and as purchased by him with a written warranty in the prescribed form to the effect that it was of such nature, substance and quality and that at the time of the sale he had no reason to believe that the article sold by him was not of such nature, substance and quality and that he sold it in the same state as he purchased it: provided that such a defence is open to the vendor only if he has submitted to the Food Inspector or the local authority a copy of the warranty with a written notice stating that he intends to rely on it and specifies the name and address of the person from whom he received it and has also sent a like notice of his intention to that person; and provided further that the warranty given by a person resident in an area in which this Act is not in force shall be a defence to the vendor only if the vendor proves to the satisfaction of the court that he had taken reasonable steps to ascertain and did in fact believe in the accuracy of the statement contained in the Warranty.) The word 'vendor' ordinarily means 'one who sells' and in my view is open to the servant, who sells, to rely on his master's warranty in defence in the same way in which his master would have been entitled to rely upon if the master had sold; this is a contention which was raised by Mr. Anil Sen appearing on behalf of the State.
12. Lastly, it is argued by Mr. Mookerji that there has been no sufficient and legal compliance with the provisions of Sections 342 and 242 of the Code of Criminal Procedure, I have gone through the questions put by the learned Magistrate and the answers given by the accused under Section 342 of the Code of Criminal Procedure. Accused Ganesh Lal Shaw was told that the Evidence against him was that he was the owner of the shop and that on the 12th April, 1957, the Food Inspector of the Asansol Municipality purchased the sample of mustard oil and that afterwards on analysis that mustard oil was found to be adulterated. I should think that that is the gist of the evidence against that accused. The accused's answer was that he was not guilty. In the circumstances, I cannot say that there has not been an adequate compliance with the provisions of Section 342 of the Code of Criminal Procedure. In a nutshell the circumstances appearing in the evidence against the accused were put to him for his explanation. Regarding non-compliance with the provisions of Section 242 of the Code of Criminal Procedure, Mr, Mookerji points out that the learned Magistrate did not state in so many words the nature of the accusation that was explained by the learned Magistrate to the accused. That is quite true but I have no doubt in my mind that the learned Magistrate's noting in the order-sheet means that the accusation that accused Ganesh Lal Shaw had sold adulterated mustard oil from his shop to the Food Inspector was explained to the accused, There has been substantial compliance with the provisions of Section 242. At the same time I must observe that the learned Magistrate should have kept a note of the accusation that was explained by him to the accused. But his mere failure to do that has not vitiated the trial.
13. I am satisfied from the evidence that the mustard oil was adulterated.
14. In the circumstances, the conviction and sentence of petitioner Bhagwandas Shaw must be set aside and he is acquitted. The conviction of petitioner Ganesh Lal Shaw under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, is upheld. Regarding sentence I should think that in the circumstances of the case ends of justice will be met if the sentence of fine of Rs. 1,000/- is reduced to one of Rs. 500/-, in default of payment Ganesh Lal Shaw will undergo simple imprisonment for three months.'
15. So far as petitioner Bhagwandas is concerned, the Revisional petition is allowed and so far as petitioner Ganesh Lal Shaw is concerned, the Revisional petition is disposed of as above. The fine if already paid by Bhagwandas must be refunded. So far as the other petitioner is concerned, the balance of the fine of Rs. 500/- if paid must be refunded.
16. The Rule is disposed of as above.