State by Public Prosecutor vs G. Rangaraj

Sathar Sayeed, J.—Aggrieved by the judgment in C.C. No. (sic) of 1975 on the file of the Judicial First Class Magistrate, Kulithalai, d. 3rd

July, 1973, the State has preferred the above appeal.

The short facts of the prosecution case are: The respondent (Rangaraj) was found in possession of 9 kilos of Bengal Gram flour and P.W.1 (A.

Mustag Ahamed), Food Inspector, Karur Municipality on 28th November 1974 at about 8-50 a.m., he visited the Maligai shop of the respondent

at D-432, Sengunthapuram Main Street, Karur, when the Respondent was found in possession of the aforesaid gram flour. P.W.1 purchased 600

grams of that flour from the respondent for Rs. 2-10 and the respondent has passed on a cash receipt Ex.P-2. As required by law P.W.1, who is

the Food Inspector and who has purchased the alleged Bengal Gram flour has divided the said flour into three parts packed and sealed. One

packet was handed over to the respondent under the acknowledgement, Ex. P-3. The other packet was sent to the Public Analyst Guindy and the

third packet was produced in Court as M.O.1. When this part of the flour was sent to the public analyst, be found that it consisted of 80% of the

Bengal gram mixed with 20% of smooth pea-flour. The report of the Public Analyst is marked as Ex. P-4 in this case and a copy of the said report

was also served on the accused and an acknowledgement was obtained from him which is marked as Ex. P-5. Since the Bengal Gram flour seized

from the respondent was not a pure one, a charge was framed against the respondent under S.7(1), 16(1)(a)(i), read with S.2(1)(a) and (1) of the

Prevention of Food Adulteration Act, 1954.

When the accused was questioned by the trial court he denied the offence and pleaded not guilty. Therefore, the Magistrate had to go on with

the case. It may now be noted that on his behalf, the respondent examined his younger brother as D.W.1. The learned Magistrate, after going

through the evidence adduced in the case and also on going through the report of the Public Analyst came to the conclusion that the prosecution

hat not established the offence and, therefore, the respondent accused was found not guilty under the aforesaid sections and he was acquitted. It is

against this acquittal of the accused in C.C. No. 200 of 1975, the State, as stated above, has filed the above appeal. The points for consideration

in this case are: (1) whether there was a sale of Bengal Gram: and (2) whether the accused was the owner of the shop at the time when sample

was taken by P.W.1 for analysis. According to S.7 of the Prevention of Food Adulteration Act 1954, no person shall himself or by any person on

his behalf manufacture for sale, or store sell or distribute any adulterated food, any misbranded food, any article of food for the sale of which a

licence is prescribed, except in accordance with the conditions of the licence, 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 any article of Food in contravention of any other provision of this Act or any rule

made there under etc. From a reading of S.7 of the Act, it is clear that a person shall, either himself or any person on his behalf, if he sells any

adulterated food or misbranded food, he is liable to be punished under S.16 of the Act, S.16 of the Act provides penalties. S.15(1)(a) of the Act

says:

Whoever by himself or by any others person on his behalf imports into India or manufactures for sale or stores, sells or distributes any articles of

food, etc....he shall, in addition to the penalty to which he may be liable under the provisions of S.6, be punishable with imprisonment for a 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"". S.16 has

also got a provision which states ""provided that if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food which is

adulterated under sub-clause (1) of clause (i) of S.2 or misbranded under sub-clause (k) of clause(ix) of the section or if the offence is under sub-

clause (ii) of clause (a) the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment

for a term of less than six months or of fine of less than one thousand rupees or of both"", etc.

In this case, it is very clear that the respondent has sold Bengal Gram and a receipt for the sale of the food stuff was issued by the respondent to

P.W.1. The learned counsel appearing for the respondent now contends that the respondent has no authority to sell or to issue any receipts for the

sale of the article from the shop. He further contends that the evidence of respondent''s younger brother who has been examined as D.W.1 clearly

shows that the respondent is not employed in his shop. But it must be noted that from the evidence of D.W.1 it is evident that when the owner of

the shop goes out under urgent work, he used to ask his brother (respondent) to look after his shop and on 28th November, 1974 at 8-50 a.m. it

was only the respondent who has sold Bengal Gram to the Food Inspector (P.W.1) which is found to be adulterated. Therefore, it cannot be

denied that on 28th November, 1974, the Respondent was in the shop and that it is only the respondent who has sold the Bengal Gram to P.W.1

which is found to be adulterated. The learned counsel appearing for the respondent further contends that it cannot be a sale. I do not agree with the

respondent''s counsel, because it has been specifically and clearly held in Food Inspector, Calicut v. Gopalan AIR 1971 1725, that sale of a

sample of a food article to Food Inspector amounts to a ""sale"", as defined in S. 2(xiii) of the Prevention of Food Adulteration Act, 1954. It is also

stated in the said decision that proof of dealership is not necessary, and once a person effects a sale as defined under the Act of an article of food

which is found to be adulterated, such person is punishable under S.16(1)(a)(i) read with S.7. The Supreme Court has also held that it is not

necessary to establish further that the person is a dealer in that article as such.

Basing the principle of this decision, it is very clear that the respondent has sold Bengal Gram to P.W.1 which is found to be adulterated as is

proved by the certificate issued by the Public Analyst in this case. The learned Magistrate has erroneously acquitted the accused on the ground that

the accused (respondent) is not the owner and, therefore he cannot be held liable for the sale of Bengal Gram to P.W. 1. It should be noted that

the section itself is so clear, as stated above, that ""no person shall himself or by any person on his behalf manufacture for sale, or store, sell or

distribute any adulterated food, any mis-branded food"", etc. So, the section does not say that the person must be the owner of the shop. The

statute specifically says only ''the person'' and the emphasis is more on the person who ""sells"". In this case, it is made clear that the respondent has

sold Bengal Gram flour to P.W. 1. The only contention of the respondent is that he is not the owner of the shop and therefore, any sale made by

him will not come within the purview of S.7(1) of the Act. It is on the basis of this contention of the respondent, the learned Magistrate has

acquitted the respondent. The acquittal is illegal. The learned Magistrate has erred in law in not following the strict tenor of the statute enjoined in

the Prevention of Food Adulteration Act, 1954, (Act 37 of 1954). Under these circumstances the acquittal of the respondent under S.248(1),

Crl.P.C. is set aside and he is liable to be convicted under S.16, Act 37 of 1964.

Learned counsel appearing for the respondent contends that the respondent is a petty shop owner and there is no income at all in the said shop

and, therefore, he may be let off under the Probation of Offenders Act. Learned Public Prosecutor has brought to my notice the decision reported

in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, at page 237 : 1975 L.W. (Crl.) 95 Learned Judges have observed:

Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti

social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the

fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed, the courts should

not lightly resort to the provisions of the. Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under

the Prevention of Food Adulteration Act...... The kindly application of the probation principles is negatived by the imperatives of social defence

and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a

respectable trade, imperils numerous innocents. He is a security risk. Secondly, these economic offences committed by white-collar criminals are

unlikely to be dissuaded by the gentle probationery process. Neither casual provocation nor motive against particular persons, but planned profit-

making from number of consumers furnishes the incentive not easily humanised by the therapeutic probationary measure.

Under these circumstances, I am of the view that the respondent has to be punished under S.16 of the Prevention of Food Adulteration Act,

1954 (Act 37 of 1954). On hearing the arguments of the counsel appearing for the respondent, and since the counsel for the respondent says that

this is the first time that the respondent has committed the offence and never in his life has such a thing happened and also taking into consideration

the worthiness of the shop, I am of the view that the ends of justice will suffice if the respondent is imposed a fine of Rs. 100/- in default to undergo

simple imprisonment for two months. The fine imposed by this court should be paid by the respondent within one month from the date of receipt of

this, judgment. The appeal is allowed accordingly.