A.V. Chinniah Thevar vs Anthoniswamy, Sanitary Inspector, Gudalur

Somasundaram, J.—One Thangaraj, a servant employed in the Kallar Co-operative Milk Supply Society at Gudalur, carried in a can

buffalo''s milk for

sale at Gudalur on 27th December, 1968 at 8 a.m. P. W. 1, the Food Inspector attached to the Panchayat, purchased 660 ml. of milk from him as

per the receipt Ex. P-1. The Public Analyst on analysis, found that this milk contained 21 per cent of added water. A complaint was then filed

against this Petitioner (President), one Jayaraj (Secretary) and the said Thangaraj, the person from whom the milk was purchased, for an offence

u/s 7 read with S. 16(1) of the Prevention of Food Adulteration Act. This complaint was taken on file by the Sub-Divisional Magistrate,

Usilampatti, in C. C. 349 of 1969 on his file. Subsequently, another complaint was filed against one Mookan alias Ramaswami, with the allegation

that he was the Secretary responsible for the management of the Society. Both these complaints were clubbed and tried together by the

Magistrate. P. W. 1 deposed that Jayaraj, the secretary (second accused) was impleaded in the complaint by mistake. Therefore, he was

discharged u/s 353 (2 ), Crl. P. C. Thangaraj contended that he carried milk for the Abhishekam of a Vinayagar in a temple in the village. The

Petitioner stated that he was not in actual management of the affairs of the Society and that everything was done by one clerk by name Karuppa

Thevar. Observing that the name of Mookan was not found in the list Ex. P-6 and stating that there was no material to link him with the offence,

the learned Magistrate acquitted him. He convicted and sentenced Thangaraj to pay a fine of Rs. 300. The Petitioner was convicted and sentenced

to pay a fine of Rs. 250. The learned Sessions Judge, on appeal, confirmed it. The Petitioner contends that he has been wrongly convicted.

The Petitioner admits that he was the President of the Society during the year 1968. He contends that he was not in charge of the affairs of the

Society in any manner. The milk was purchased from Thangaraj when he was carrying the same in a tin in a street in Gudalur village. In other

words, it was not purchased from the premises of the Society, or in the presence of the Petitioner. P. W. 1, in the first complaint filed by him, has

impleaded this Petitioner and Jayaraj in their respective capacities as President and Secretary of the Society. However, in his evidence he has

stated that by mistake Jayaraj, was impleaded in the complaint. The learned Magistrate has discharged him on this ground. In the subsequent

complaint filed in October, 1969, it is averred that Mookan (fourth accused) was the Secretary of the Society. The specific allegation in that

complaint is that as secretary he was one of the responsible persons in charge of the business. There is no allegation in the first complaint that the

President was responsible for the affairs of the society. P. W. 1 has deposed in his evidence that both accused 1 and 4 were actually managing the

society. The learned Magistrate has acquitted the fourth accused, stating that there was no evidence to link him with the offence. What applies to

the fourth accused equally applies to this Petitioner, also. Significantly, P. W. 1 has not alleged in the complaint filed in court that this Petitioner was

actually managing the Society.

Under S. 17(1) of the Prevention of Food Adulteration Act, it is the duty of the prosecution to prove that the person sought to be made liable

was in charge of and was responsible to the company or society for the conduct of its business. Unless this initial onus is discharged, the accused

cannot be called upon to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the

commission of the offence: Vide Public Prosecutor v. Subramaniam (1959) M.L.J. Crl. 899, Food Inspector of Calicut Corporation Vs.

Kandagouri Hemathlal Chowdgar and Another, ,; Momtaz Begum Vs. The State, and Jagadish Prosad Gupta and Another Vs. State of West

Bengal, .As pointed out in Public Prosecutor v. Karuppiah (1959) 1 M.L J. 20, the prosecution should establish that the offence was committed

with the consent or connivance of this Petitioner or that it is attributable to any neglect on his part. The evidence that has been let in by the

prosecution in this case only shows that this Petitioner was the President of the Society during the year. The day to day business of selling the milk

was apparently done by some clerk or other persons. In other words, there is no evidence to show that this Petitioner at the time when the offence

was committed, was a person in charge of and being responsible to the Society for the conduct of its business, The admitted case of the

prosecution is that the milk was purchased from Thangaraj when he was carrying it in a cycle in the Streets of Gudalur. The Petitioner was not then

present and in the absence of any evidence to show that he was the person in charge of the business of the Society at the relevant time, he cannot

be made liable.

The conviction and sentence imposed on the Petitioner are set aside. He is acquitted of the offence for which he stands convicted. The fine, if

collected, shall be refunded to him. The revision is allowed.