Sarada Charan Das vs Corporation of Calcutta

R. Bhattacharya, J.—This revisional application arises out of an order of a Presidency Magistrate, now designated as Metropolitan Magistrate, Calcutta, framing charge against the Petitioners u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954, as amended by Act XLIX of 1966.

Mr. Amal Krishna Dutta, Advocate, with Mr. Gouri Sankar De, Advocate, appears for the Petitioners. Mr. Durgapada Dutt is the Advocate for the Corporation of Calcutta. Mr. Bikas Chandra Sen, Advocate, represents the State of West Bengal.

The prosecution case is that one B.K. Bhowmik, a food inspector purchased sample dahi stored and exposed for sale from a shop of M/s. K.C. Das Pvt. Ltd. at 11-A Esplanade East, Calcutta. The Public Analyst declared the dahi to be adulterated and mis-branded. With the consent of the Health Officer, the food inspector started the prosecution. On consideration of the evidence of the witnesses examined by the prosecution and the documents exhibited, the learned Magistrate found that the accused Nos. 1 to 6, Directors of the company, were the whole-time workers on remuneration and that they had the sole responsibility for the conduct of the business. He also found that the accused No. 7 was the seller of dahi employed by the company. The charge as stated above has been framed against each of the accused persons.

Mr. A.K. Dutta, the learned Advocate for the Petitioners, has argued, first, that the criminal proceedings started before the learned Magistrate is vitiated for non-joinder of the company as the accused. For this contention reliance has been placed on Section 17 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The said section runs thus:

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct o� the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

According to this Section, if an offence under the Act has been committed by any company, every person who at the time of the commission of the offence was in charge of and was responsible to the company for the conduct of the business of the said company as well as the company shall be deemed to be guilty of the offence. In the present case, I find, as my attention was drawn by Mr. D. Dutt, the learned Advocate for the Corporation of Calcutta, that in the petition of complaint in the column for the accused company, M/s. K.C. Das Pvt. Ltd., 11/A Esplanade East, P.S. Hare Street, has been mentioned and the accused Nos. 1 to 6 have been described as Directors in charge of the local affairs of the company and the accused No. 7 has been stated to be the seller-cum-cashier of the same and in fact, the learned Magistrate receiving the complaint passed orders as follows:

...Issue summons on the accused persons and the firm u/s 16(1)(a)(i)/7 of the P.F.A. Act fixing 11.8.71 for appearance.

From the reading of the petition of complaint there can be no manner of doubt that the allegations were made against the accused persons acting on behalf of the company and not in their personal capacity and the charges as framed also indicate that. I do not find any breach of Section 17 of the Act. The case of B.K. Varma Vs. Corporation of Madras, referred to by the learned Advocate for the Petitioners does not help him.

The next point that has been put forward from the side of the Petitioners is that, in view of Sections 7 and 16 of the Act, an employee of the company will not be liable for sale of any adulterated food. It is contended that the principal or the vendor should be liable and not the employee like the accused No. 7, the salesman of the company in the instant case. In this connexion Sections 7 and 16 are to be considered. Section 7 reads:

No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority (in the interest of public health); or

(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.

The relevant portion of Section 16 is quoted below:

(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 adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of public health....

he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable....

The simple language of Section 7 clearly says that the manufacture for sale or store or sale or distribution of the offending food mentioned in the Section by a person himself or, in other words, direct, is prohibited; so also is the same prohibited if done by any person through or by agency of some other person or, in other words, indirectly. In any case, the person who sells such food himself either as agent or servant or as principal cannot avoid liability according to the provision of the Act.

The language of Section 16, as quoted above, is of the same pattern as that used in the first portion of Section 7 of the Act and it means that not only the person who himself imports into India the offending food or manufactures for sale or stores, sells or distributes the same but also the person on whose behalf the former has acted, shall also be penalised under the Act.

In the case Peary Mohan Saha Vs. Harendra Nath Roy, , decided by a Division Bench of this Court constituted by Rankin C.J. and Patterson J., a question arose whether the sale of an adulterated food by a servant on behalf of the principal would be guilty. That was a case u/s 6(1) of the Bengal Food Adulteration Act, 1919. The material words of the Act are--

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 etc.

In this decision several case laws were considered and it was held that the agent or servant is within the prohibition of the words ''no person shall sell''. The finding is as follows:

The Legislature is not necessarily contemplating a person who has a choice to sell at his own hand or by any other person on his behalf. It is concerned to make the act of selling an act which is imputable both to the person with whose hand it is committed and to any other person, if such there be, on whose behalf it is committed.

The reason and the principle of law decided on the point is applicable in the instant case before me.

In the case Sarjoo Prasad Vs. The State of Uttar Pradesh, , decided by the Supreme Court, a question arose as to whether an employee of the owner of the shop selling adulterated food would be liable under the Act. In that context Sections 7 and 16 of the Act were considered. The Supreme Court held:

The expression ''person'' has not been defined in the Act and in the context in which that expression occurs, it prima facie includes everyone who sells adulterated food. By the collocation of the expression ''no person shall himself or by any person on his behalf the employer alone is not prohibited. The intention of the Legislature is plain. Every person, be he an '' employer or an agent, is prohibited from selling adulterated food and infringement of the prohibition is by Section 16 penalised. The above decision is a complete answer to the second contention raised.

The last submission from the side of the Petitioners is that there is no material on record for framing any charge against any of them. I have been taken through the evidence, both oral and documentary, produced by the prosecution. With regard to the accused, Amar Nath Ghosh, the seller-cum-cashier of the company, there is sufficient material for framing charge against him for storing and exposing for sale of adulterated and misbranded dahi at the shop of the company. Regarding the other accused Petitioners who are the Directors of the company, P.W. 1 though stated in general terms that these Directors had sole responsibility for the conduct of the business, certain certified copies of resolutions of the company have been marked Ex. 7. From this it appears that the Petitioner, Narendra Nath, one of the Directors, was employed on remuneration for whole-time service in managing the day to day business of the works of the company. It is further seen that the Petitioner, Birendra Nath Das, another Director, was holding an office as works supervisor from April 1, 1969, on a remuneration. It cannot be stated that there is insufficient evidence for framing charge against them. As regards the Petitioner, Rabindra Nath Das, Bar-at-Law, the resolution shows that he was appointed legal adviser at a fixed retaining fee. He cannot be in any way connected with the supervision or management of the business at) the shop. Neither is there anything in the resolution to connect the Petitioners, Sarada Charan Das, Annapurna Das and Dhirendra Nath Das, with the management about the working of the business or manufacture of sweets or dahi at the shop. There is dearth of materials for the purpose of framing charge against them.

Mr. Sen, the learned Advocate for the State, has submitted that in spite of Sub-section (1) of Section 17 of the Act, Sub-section (2) requires that unless there is consent or connivance etc. as stated there on the part of any Director, he cannot be found guilty. At this early stage of framing charge, it is not necessary for this Court in this revisional application to closely scrutinise the evidence and the circumstances for arriving at the conclusion if the Petitioners, Birendra and Narendra, are guilty of the charge or not.

In the result, the revision succeeds in part. The order of the learned Magistrate framing charge against the accused Petitioners, Sarada Charan Das, Annapurna Das, Dhirendra Nath Das and Rabindra Nath Das, are set aside and the Rule, to this extent, is made absolute; but it stands discharged so far as it relates to the Petitioners, Narendra Nath Das, Birendra Nath Das and Amarnath Ghosh, who fail in this application.

Send back the records of the Court below as early as possible for further proceeding according to law.