Municipal Committee, Amritsar vs Ranjit Singh

A.D. Koshal, J.—This is an appeal by the Municipal Committee, Amritsar, against the judgment dated the 27th of October, 1966, of Shri Sher Singh Sindhu, Judicial Magistrate 1st Class, Amritsar acquitting the respondent of an offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act).

The prosecution case may be stated thus. On the 29th of October, 1963, at 8.30 A.M Shri Krishan Kumar, Food Inspector, Municipal Committee. Amritsar (P.W. 1) was present near the Amritsar Town Hall when the respondent came there riding a bicycle on which he was carrying a quantity of milk contained in a ualtohi The Food Inspector stopped the respondent who told him on enquiry that the article contained in the valtohi was cow milk intended for sale. The Food Inspector then purchased 660 mls. of the milk for analysis against payment of Rs. 0-50 Paise. This quantity of milk was divided into three equal parts, each one of which was transferred into a bottle and sealed. One of the bottles was sent to the Public Analyst who found its content to be milk having 5 per cent of fat and only 7.02 per cent of nonfatty solids which, according to the prescribed standard, should have had the minimum percentage of 8.5.

At the trial the prosecution produced only two witnesses in support of its case. The Food Inspector gave as P.W 1 the same details thereof as have been set out above. He admitted in cross-examination, however, that it was after the milk had been stirred with a measure that the sample was taken. He denied that the respondent had told him that the milk was being taken for delivery to Sohan Singh (D.W. 1) in Chowk Baba Sahib. Amritsar at the instance of the respondent''s brother Makhan Singh (D.W. 2). Mehnga Ram (P.W. 2) also fully supported the prosecution but. made the following admissions in cross-examination:

The milk was first violently stirred and then sample was taken. It was stirred with hand. The accused had two more valtohis. He had no measure with him. The accused did not sell milk to anybody in my presence.

The witness denied knowledge of the respondent being a college student and also that the respondent had told the Food Inspector that he (the respondent) was to deliver the milk to Sohan Singh at the instance of the respondent''s brother.

The stand of the respondent was that he was not a milk-seller but a student and that the milk in question was to be delivered to Sohan Singh free of charge at the instance of the respondent''s brother on the occasion of the dhaman ceremony of the son of the said Sohan Singh. He also averred that the milk had been violently stirred, that the sample was taken from the upper layer thereafter and that no witness was present at the time.

In his defence the respondent examined two witnesses. Sohan Singh (D.W. 1) deposed that he had asked the respondent''s brother, Makhan Singh, for a supply of milk on the occasion of dhaman ceremony of the son of the witness and that nothing was to be paid for it. According to him, the milk was to be supplied on the day when a sample thereof was taken from the respondent. Makhan Singh (D.W. 2), who is a brother of the respondent, made a similar statement.

The respondent also produced in defence a certificate from the Principal, Khalsa College, Amritsar stating that the respondent was attached to that institution as a student.

In view of the certificate just above mentioned and the testimony of Makhan Singh (D.W. 2), the learned Magistrate formed the opinion that the prosecution had not "been able to prove beyond any reasonable doubt that the milk which the accused was carrying was meant for sale" He further concluded from the percentages of fat and non-fatty solids detected in the sample that the milk had been violently stirred before the sample was taken and that this might have resulted "in the fat coming above the surface and milk solids not fat going down". He not d the fact that Mehnga Ram (P.W. 2) was himself a tea seller and, therefore, a person liable to provide a sample of the food stuffs handled by him to the Food Inspector for analysis. From this fact he inferred, that Mehnga Ram (P.W. 2) was amenable to the influence of the Food Inspector and could not thus be regarded as an in dependent witness.

It was in these premises that the learned Magistrate ordered the acquittal of the respondent.

Ch. Roop Chand has vehemently urged that in view of the definition of "sale" given in Clause (xiii) of Section 2 of the Act, it was not at all incumbent on the prosecution for the purpose of securing the conviction of the respondent u/s 66(1)(a)(i) of the Act to establish that the milk carried by the respondent was for sale and that all that need have been proved for the purpose was that the Food Inspector had obtained the sample against payment. In order to appreciate the argument the provisions of Clause (xiii) of Section 2 and of Section 16 of the Act may be noted and are set out below:

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(xiii) ''sale'' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use. or for analysis, and includes an agreement for sale, an offer for sale the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;''

Penalties-(1) if any person-(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(i) which is a adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;

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he shall in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees:

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It is urged that whenever a Food Inspector obtains from any person a sample for analysis against payment the transaction amounts to a ''sale''. In this connection reliance is placed on Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, in which a sample of haldi was obtained by the Food Inspector from a businessman of Bombay on whose behalf it was contended before their Lordships that the transaction was not a sale inasmuch as a sale is a contract and a contract comes into existence only when both the parties to it act voluntarily. In support of the contention reliance was placed on certain observations of Raman Sagar J. in Food Inspector Calicut v. Rarameshwaran Chettiar (1962) 1 Cri. L.J. 152. The contention was repelled by their Lordships in the following words:

No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a ''sale''. That was evidently because here we have a special definition of ''sale'' in Section 2(xiii) of the Act which specifically includes within its ambit a sale for analysis.

On behalf of the respondent it has been argued that although a sale for analysis must be regarded as a sale for the purpose of the Act it must satisfy the other requirements of Clause (xiii) of Section 2 of the Act which include one that the person from whom a sample is taken must be a person engaged in the business of selling food. Reliance in this behalf is placed on the words "whether by wholesale or retail" occurring in Clause (xiii) and it is emphasised that these words connote a reference to business or trade activity. It is also pointed out that if the words just quoded do not signify that the sale must be by a person engaged in the business of selling food then the section would lead to the anomaly that a sample taken from a consumer would mike him liable for punishment under the Act if it is found to be consisting of adulterated food even though it is the consumer that is sought to be protected by the Act. Besides, stress is laid on the fact that the accused in Mangaldas Raghanji Ruparel v. State of Maharashtra whose conviction was upheld by their Lordships with the observations above cited was admittedly a businessman and the argument is advanced that their Lordships could not be deemed to have held that a sale for analysis would be a sale within the meaning of Clause (xiii) whether or not it conformed to the other requirements of the clause. This argument is not devoid of plausibility but Ch. Roop Chand seeks to have it repelled on the authority of Municipal Committee Amritsar v. Parkash Chand (1968) 70 P.L.R. 1069, Municipal Coroporation of Delhi v. Jetha Nand (1969) 71 P.L.R.D.S. 349, Food Inspector, Food Inspector, Puri Municipality Vs. Rama Gopal Agarwalla, , Dhirajlal Valji Kotak Vs. Ramchandra Janglaji Gujar and Another, Public Prosecutor Vs. Kusanapudi Narasimha Raju, , and The The Public Prosecutor Vs. Matha Satyam, , in which it appears to have been held that the above quoted observations of their Lordships of the Supreme Court in Mangaldas Raghvji Ruparel''s case interpreted Clause (xiii) to mean that whenever a Food Inspector obtains a sample for analysis against payment, nothing more need be proved in order that the transaction be considered a sale for the purpose of that clause. It has been contended on behalf of the respondent that these authorities do not take a correct view of the dictum in Mangaldas Raghavji Ruparel''s case. Arguments on the point have been addressed to us at length by both sides but we do not consider it necessary to decide it one way or the other because the appeal is bound to fail in view of the fact that the charge framed against the accused by the learned Magistrate is so defective that it cannot be said to have given to the respondent any real notice of the case he had to meet. The relevant part of the charge runs thus:

That you on or about 29th October, 1965 at 8.30 A.M. near Town Hall, Amritsar were found having in possession... cow milk adulterated and thereby committed an offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, as amended by Act No. 49 of 1964 and within my cognizance.

Mere possession of adulterated milk or for that matter, any adulterated food, is certainly not an offence under the Act. Leaving aside other provisions of the Act, what Section 16(1)(a)(i) thereof makes culpable is the manufacture for sale or the storage or sale or distribution of any adulterated article of food and none of these acts is ascribed in the charge to the respondent. Prejudice to the respondent arising from the defect in the charge is thus inherent in the situation and the trial must consequently be held to be bad in law.

In circumstances like this we would ordinarily have set aside the acquittal and ordered a retrial but we decline to adopt this course in view of the period of time for which these proceedings have gone on. The occurrence is about 5 years old and the litigation following it was initiated more than four years back. If the respondent has to face a fresh trial now, he could well have a justifiable feeling of harassment, his earlier trial having failed on account of no fault of his. Interests of justice, therefore, appear to go against a direction for a retrial. Accordingly we refuse to interfere with the impugned judgment and dismiss the appeal.

Gopal Singh, J.

I agree.