State of Assam vs Binode Kumar Agarwalla and Others

T.C. Das, J.—The Food Inspector, Sibsagar at Jorhat, on 22.8.75 visited M/S G.K. Ice Factory situated in Ward No. 8 at Sibsagar. He was accompanied by P.W. 2, Nilambar Rajkhowa and one Bipul Barua, P.W. 3, a peon of the Civil Surgeon Office at Jorhat. He, along with the witnesses went inside the factory and found accused Binode Kumar Agarwalla and purchased 1500 grams of each variety of ice candy (orange and red) from the factory which were meant for storing and selling the said articles of ice candy. The food Inspector separated the said quantity of the ice candy into different heads and put the same in different bottles suspecting the same to be adulterated. After observing the formalities, samples of the ice candy of both the varieties were sent to Public Analyst. On receipt of the report from the Public Analyst and as these were found to be adulterated, sanction was sought for to prosecute the Respondents under the provisions of Prevention of Food Adulteration Act. On obtaining sanction, a criminal prosecution was started against the Respondents in two different cases. We are at present dealing with C.R. Case No. 56/76. Two separate prosecution cases were started against both the Respondents being C.R. Case No. 56/76 out of which the present appeal arises and the other being C.R. Case No. 57/76. Both the cases were tried jointly and the prosecution adduced common evidence. By a common judgment, the trial Court acquitted both the Respondents involved in both the cases. Therefore, against the order of acquittal passed by the learned trial Court the State has preferred this appeal in C.R. Case No. 56/76 which we have now taken up for disposal.

On perusal of the impugned judgment, we find that on a preliminary point the learned trial Court decided the case without discussing further evidence on record, If we decide the preliminary point one way or the other, will it be a bar on us to give decision on merit by discussing the evidence on record? Our answer is that it is not so. Because this being an appeal (though against the order of acquittal) we can examine the facts and the law including the evidence on record, oral as well as documentary.

Mr. A.R. Paul Mazumdar, learned P.P. has submitted before us and perhaps very correctly, that already 10 years have rolled by and if the proceeding again goes back to the trial Court on technical ground, it would not only harass the parties but also it would cause undue delay. This has been submitted by Mr. Paul Mazumdar, P.P. because Dr. Sarma learned Counsel for the Respondents has insisted that though the judgment of the trial Court is not based on proper appreciation of evidence on record, there is no findings as to whether the learned trial Court had accepted the report of the Public Analyst. However, we are not going too far in that aspect of the matter as because we can examine the evidence on record to finally decide the case. We are aware of the maxim that "delay defeats equity and justice''''.

Now let us examine the contentions as raised by the learned P.P. in this appeal. The main contention raised before us is that the learned trial Court erred in proper appreciation of the principle of law on the point as to whether in absence of impleading the company or partnership and/or the other remaining partners as a party to this proceedings, will the prosecution fail? The learned trial Court based the decision on this point relying on a decision of this Court rendered in Hanuman Prasad Lohia v. State of Assam (Criminal Revision NO. 153/72). Dealing with the provisions of Section 17 read with Section 7 of the Essential Commodities Act, it was held by this Court that the prosecution has to establish that the officer or partner was in charge of and responsible to the firm or company for the conduct of the business of the company or firm at the time when the alleged offence was committed. It was further held that it was the duty of the prosecution to establish that the offence was committed by a partner of the firm. The decision of Hanuman Prasad (supra) was not followed by a Division Bench of this Court in Tezpur Municipal Board v. Mohanlal Tibriwal (Criminal Appeal No. 9/71 disposed of on 10-12-76) wherein it was held:

Though in the Single Bench decision of this Court in Hanuman Prasad Lohia v. State of Assam 1973 ALR 169 in agreement with the decision of the Madras High in V.K Verma v. Corporation (AIR 1971 Mad 40) one of us (Sarma, J), took the view that the prosecution of a partner without the prosecution of the firm itself is bad, we are now of the opinion that it was not a correct view. What Sub-section (1) of Section 17 provides, is that in such a case besides the person, who at the time the offence was committed, was in charge of and responsible to the company for the conduct of the business of the Company, the company (which also includes a partnership) would also be deemed to be guilty and shall be liable to be proceeded against.

Reliance is placed by the learned Counsel to the decision of Tezpur Municipal Board (supra) and another decision of their Lordships of the Supreme Court in Smt. Manibai and Another Vs. The State of Maharashtra, While interpreting the provisions of Section 17(1) of the Prevention of Food Adulteration Act read with Section 7(1) and 16(1) of the Act, (prior to the amendment of Act 34 of 1976), their Lordships held:

According to Section 17(1) of the Act, where an offence under the Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible for the conduct of the business of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Sub-section is followed by ''the proviso according to which nothing contained in the Sub-section would render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that be exercised all due diligence to prevent the commission of such offence. ''Company'' has been defined in Section 17 to mean anybody corporate and to include a firm or other association of individuals. ''Director'' in relation to a firm has been defined to mean a partner in the firm. There is nothing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals. Manibai would be liable u/s 17(1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop. There is no evidence to that effect on the record, no criminal liability for the sale of coconut oil by Pranjivan can be fastened on Manibai under the provisions of the Act.

The next decision as cited by Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, We may, however, give stress to the relevant portion of the said decision as it would be required by us for consideration of this case. It was held by the Supreme Court that a positive evidence is necessary to connect the company or partnership along with the partners with involvement of the offence for the purpose of conclusion that the partners in charge of the firm are responsible to the firm for the conduct of the business at the time of commission of the offence. To examine this position Mr. Paul Mazumdar, learned P.P. has led us to the evidence and we have gone through the evidence. Prosecution examined 3 witnesses. P.W. 1 is the Food Inspector, P.W. 2 is a man from the locality and P.W. 3 is the peon who accompanied the Food Inspector. On going through the evidence of P.W. 1 which is relevant according to the learned P.P., we must look to the admitted position as revealed from the judgment of the trial Court. That apart, we can take into consideration the statement of the accused made u/s 313 Code of Criminal Procedure before the learned Magistrate. P.W. 1 in his evidence has categorically stated that he met Binod Kumar Agarwalla, who was the Manager of the factory. The Respondent No. 2, Sankarlal Agarwalla was the Proprietor of the factory. His further evidence is that he purchased 1500 grams of ice candy on payment of Rs. 9/-. In cross-examination he stated that he found only Binod Kumar Agarwalla in the shop and no other person either as partner or owner. The statement of P.W. 1 to connect Sankarlal Agarwalla is only in the nature of hear-say evidence, P.W. 1 even did not know as to whether M/s G.K. Ice Factory was a company or a partnership firm. However, this fact is revealed from the evidence on record. The Respondents have produced the registration certificate of the partnership firm, the registration number of which appears to be 189/75-76. It appear that M/s G.K. Ice Factory, is a partnership firm which was constituted on and from 10-12-72 with four partners. Both the Respondents are the partners of the said firm along with two others against whom no sanction has been granted for prosecution. The evidence of P.W. 1 is silent as to the conduct of the other partners relating to the business of the firm. The prosecution has not been able to prove or establish that the other remaining partners even including Respondent No. 2 Sankarlal Agarwalla were incharge of and responsible in conducting the business of the firm at the time of commission of the offence. In absence of the evidence on record it is not possible to hold that Sankarlal Agarwalla (Respondent No. 2) was guilty of the offence as because there is even no whisper against him as to whether he had any hand in the conduct of the business of the firm at the time of occurence. In the statement of Respondent No. 2, Sankarlal Agarwalla which was recorded by the learned trial Court, it is found that he has clearly stated that he was not entrusted with the charge of it. He has a separate cloth shop where he stays. He produced the certificate of registration of the firm showing that the G.K. Store is a partnership firm. Similarly, Respondent No. 1, B.K. Agarwalla in his statement u/s 313 Code of Criminal Procedure has corroborated the statement of Respondent No. 2 to the effect that G.K. Ice Factory is a partnership firm and he was entrusted with the charge of the same.

Mr. Paul Mazumdar, learned P.P. has drawn our attention to Ext. kha which is a declaration made by Respondent No. 1, B.K. Agarwalla to the effect that he is a partner of G.K. Ice Factory which is a registered partnership firm and he received the sale price of the orange ice candy from the District Food inspector for the sample No. B-91/75, On proper analysis of the evidence on record, oral as well as documentary, we are convinced with the contention made by Dr. Sarma, learned Counsel for the Respondents to the effect that the prosecution has failed to prove the case against Respondent No. 2. In absence of any evidence on record to connect Respondent No. 2 with the offence, we are unable to hold that the Respondent No. 2 is also guilty as alleged by the prosecution in absence of clear evidence on record. Therefore, our conclusion is that the order of acquittal in so far as it relates to Respondent No. 2, must stand.

Now let us take independently the prosecution case as regards Respondent No. 1 B.K. Agarwalla. We have given our due consideration to the testimony of P.W. 1 and also the statements and the declaration (Ext. Kha) of Respondent No. 1, B.K. Agarwalla. However, the declaration ( Ext. Kha ) was submitted in the Court when the evidence of P.W. 1 was closed. We may not give due importance to the declaration (Ext. Kha) as because no question was put by the learned trial Court to the accused B.K. Agarwalla in his examination u/s 313 Code of Criminal Procedure. On due scrutiny of the materials on record, we find sufficient materials against Respondent No. 1, B.K. Agarwalla, justifying his conviction u/s 7 read with Section 16 of the Act.

Let us now consider the report of the Public Analyst. It is evident from the report of the Public Analyst that the ice candy (both orange and red varieties) were adulterated as because saccharin was added which was prohibited under Item A 07.04 of Appendix B to the Prevention of Food Adulteration Rules. Saccharin was added as a sweetening element. This has, according to the Public Analyst, violated Item No. 8 of Appendix B of the Prevention of Food Adulteration Rules. Nothing could be pointed out about any illegality or irregularity in report of the Public Analyst. The required formalities having been completed, we can accept the report of the Public Analyst as an admissible evidence. Therefore, we have no hesitation in reaching the conclusion that the accused Respondent No. 1 has violated the provisions of the rules. The ice candy, both orange and red varieties, were found adulterated due to admixture of saccharin as sweetening element which is a prohibited item for preparation of ice candy. Accordingly, we hold that the finding of the learned trial Court as regards Respondent No. 1, B.K. Agarwalla for his acquittal cannot be upheld. On the basis of the evidence on record we find that the prosecution could prove the guilt of the accused Respondent No. l B.K. Agarwalla, as required to be proved under the law. Accordingly, we hold the Respondent No. 1 guilty by reversing, the order of acquittal.

The offence took place in the year 1975 and prior to the amendment of the Act 34 of 1976. This Court has decided in a number of cases that ends of justice would be met if a heavy fine is imposed instead of sending the accused back to the trial Court or to jail after a lapse of long years. On the quantum of sentence, Dr. Sarma, learned Counsel for the Respondents has drawn our attention that Respondents No. 1 was a student at the relevant time and was aged about 18 years and by now he attains the age of about 29 years. We do not thick it proper that after 10 years he should be sent to jail, In State of Assam v. Rameswar Prasad as reported in (1984) 2 GLR 88, this Court held: "saccharin is not absolutely prohibited item which cannot be used in food-stuff. It may at least be used in some article of food. Next, we find that there has been long delay in disposing of the appeal which is pending since 1975". Here is also a similar case relating to the admixture of saccharin in the ice candy.

Considering the facts and circumstances of the case and also on going through the evidence on record we are of the opinion that it would meet ends of justice if we direct accused Respondent No. 1 to pay a fine of Rs. 1,000/-, in default to suffer R.I. for 6 months while we have found him guilty u/s 7 read with Section 16 of the Prevention of Food Adulteration Act.

In the result the appeal is allowed to the extent indicated above. The impugned judgment and other of acquittal of Respondent No. 1 is set aside. The accused Respondent No. 1 having found guilty of charges, is sentenced to pay the fine of Rs. 1,000/- within 6 weeks from to-day, in default he is to suffer R. I. for 6 months.