State of Gujarat vs Grukrupa Kariyana Stores and Others

B.C. Patel, J.—State, being aggrieved by an order of acquittal recorded in favour of respondent Nos. 1, 2 and 3 herein (for brevity, original accused), has preferred this appeal. The trial Court tried the original accused for an offence punishable u/s 7(1) read with Section 16(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and acquitted the accused by its judgment and order passed on 25-5-1990 in Criminal Case No. 2121 of 1985.

Succinctly stated, the facts as it emerges from the complaint, Exh. 1, are as under:

2.1 The complainant, Food Inspector, on 8-4-1985 at 13-10 hours visited the shop of the respondents-accused. At the relevant time, accused No. 2, a partner of the original accused No. 1, was found dealing in the sale of commodities. Complainant, as required under law, kept two panchas present, and in the presence of panchas, collected sample of Turmeric Powder after giving intimation, vide Exh. 13. The complainant thereafter divided the sample into three equal parts and sealed the samples as required under the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). The complainant also issued receipt, vide Exh. 14 and prepared a panchnama vide Exh. 15. One sample was forwarded to the Public Analyst, Baroda while two sealed sample packets were forwarded to the Local (Health) Authority, Mehsana. On receipt of the report, Exh. 25, indicating that the sample is adulterated, the complainant addressed a letter requesting for consent, vide Exh. 26 and consent was accorded by the competent authority, vide Exh. 27, and thereafter complaint was lodged before the Chief Judicial Magistrate, Palanpur. The accused were also served with registered letter Exh. 29 in accordance with the provisions contained in Section 13(2) of the Act. The accused submitted an application to the Court for forwarding one sample collected by the Inspector from the accused to Central Food Laboratory, vide Exh. 4. The Court, after following the procedure as laid down u/s 13 and the Rules, forwarded the sample to the Central Food Laboratory, Pune, vide Exh. 6. Central Food Laboratory forwarded its report vide Exh. 7 indicating that the substance contained 2.82% by weight Ash insoluble in dil. Hcl as against the permissible limit of 1.5% by weight. It also appears from the report that so far as moisture and total Ash are concerned, they were within the permissible limits. There was no coltar dye in the sample analysed. Panch Amratbhai PW 2 did not support the prosecution version. However, the panch when examined before the Court has admitted the factum of his signature on the relevant documents. The trial Court, on appreciation of evidence held that there is breach of mandatory provisions contained in Section 13(2) of the Act and Rule 17 of the Rules, and, therefore, acquitted the accused. State has preferred this appeal against the said order of acquittal.

Mr. Patel, learned Additional Public Prosecutor appearing for the State submitted on the basis of evidence on record that Part V of the Rules has been strictly followed, that is to say that Rules 14, 15, 16, 17 and 18 are strictly complied with. Intimation Exh. 13, Receipt Exh. 14, Panchnama Exh. 15, Memorandum of Public Analyst Exh. 18 are all in accordance with the Rules. In the forwarding letter Exh. 6, it is clearly revealed that the mandatory provisions have been complied with.

As against this, Mr. Oza learned Advocate appearing for the original accused submitted that there is tampering with the sample which was forwarded to the Public Analyst, and, therefore, no reliance can be placed on the report and the trial Court has rightly acquitted the accused. He further submitted that Rule 17 has not been complied with.

So far as the submission made by Mr. Oza with regard to tampering of the sample forwarded to the Public Analyst is concerned, the same is required to be rejected in this case for the simple reason that in the instant case, at the request of the accused sample has been forwarded to the Central Food Laboratory, Pune for analysis under the provisions of the Act. Section 13 of the Act refers to reports. Section 13 (2-B) of the Act reads as under:

On receipt of the part or parts of the sample from the Local (Health) Authority under Sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and the signature or thumb-impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.

Thus, from reading the provision, it is very clear that the Court has to ascertain the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and the signature or the thumb- impression as the case may be, is not tampered with. After satisfying that the mark and seal or fastening are intact, the Court has to forward the sample to Central Food Laboratory. Mr. Oza could not point out from the record that there was tampering with the seal or fastening or that the signature or thumb-impression was tampered with.

As per Rule 15 of the Rules, the container is to be properly labelled and in the instant case, the same is found at Exh. 25. It clearly appears that serial number of the sample is 53/85 and all the documents refer to this number. Even Exh. 6, letter addressed to the Director of Central Food Laboratory, refers to sample No. 53/85. This sample was received from the Assistant Director, Food and Drugs Controller, Mehsana. The Court, after satisfying that the same is sealed and not tampered with, after following the procedure as laid down in the provisions of the Act and Rules, under its own seal, has to forward the sample to the Central Food Laboratory and, therefore, when the Court has forwarded the sample under its own seal, the Court has to see only the report of the Central Food Laboratory. This report supersedes the report forwarded by the Public Analyst, and, therefore, no reliance is to be placed on the report forwarded by the Public Analyst. As there is nothing to show that there is tampering with the sample forwarded to the Central Food Laboratory, the first argument advanced by learned Advocate Mr. Oza requires to be rejected.

Rule 17 refers to manner of despatching containers of sample. Sample was collected on 8-4-1985 and vide Exh. 18, one sample was forwarded to Public Analyst. Mr. Oza could not point out from the evidence as to how any breach is committed. However, at the fag-end. Mr. Oza submitted that the sample was not collected in a container which can be said to be dry and clean container. On this point, according to Mr. Oza, there is no corroboration from panch, and, therefore, the evidence of Food Inspector should not be accepted. Panchnama Exh. 15 clearly refers that the sample was collected in Polyethylene bags which were neat, clean and dry, and there was no smell or there was no colour in the polyethylene bags. In the evidence, Food Inspector has clearly reiterated this aspect. There is no suggestion to the complainant that the polyethylene bags in which the samples were collected were not dry and clean. Therefore, if the evidence is cogent and convincing, merely because the panchas have not supported, the evidence of Food Inspector cannot be rejected.

The apex Court in the case of Babu Lal Hargovindas Vs. The State of Gujarat, has pointed out that the Food Inspector is not an accomplice. The apex Court observed as under, in paragraph 5 of the judgment:

Even otherwise, in our view no question of the trial being vitiated for noncompliance of these provisions can arise. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice or is it similar to the one as in the case of Wills where the law makes it imperative to examine an attesting witness u/s 68 of the Evidence Act to prove the execution of the Will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most, Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of Section 10(7) are akin to those u/s 103 of the Criminal Procedure Code when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food Inspectors under the Act. This being the object it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the noncompliance of which may in some cases result in their testimony being rejected". The apex Court further observed in the said paragraph that:

While this is so, we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions. In this case, however, there is no justification in the allegation that the provisions have not been complied with because the panch witness had been called and his signatures taken which he admits. In these circumstances the Courts were justified on the evidence of the Food Inspector that he had complied with the requirements and that the samples were seized in the presence of the panch witness whose signatures were taken in the presence of the accused.

The apex Court, in the case of State of U.P. Vs. Hanif, held as under in paragraph 4 of the judgment:

....It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on to prove prosecution case. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the panch witnesses seeking corroboration to the evidence of the Food Inspector.

When there are no personal allegations against the Food Inspector, and the factum of purchase is not in question, the evidence of Food Inspector must be accepted as it is.

Keeping the aforesaid observation of the apex Court in mind, if we appreciate the evidence on record in the instant case, it becomes very clear that panchas were called, in their presence sample were collected from the accused No. 2 who is a partner of accused No. 1. Panchnama bears the signature of panchas. Sample bottles bear the signature of panchas, Food Inspector and the accused who sold the article to the Food Inspector. The reports clearly reveal that the sample when received for analysis were not tampered with. Thus, insofar as sampling process is concerned, there is clear evidence that the samples were collected in accordance with the Rules. Merely because panchas are not supporting the prosecution, it does not mean that the evidence of Food Inspector cannot be accepted, if on other material particulars evidence is found satisfactory. In the instant case, panchas have admitted their signature on the panchnama which was drawn when the samples were collected from the accused No. 2. It is suggested to the Food Inspector that he did not take signatures of panchas on the slips which were affixed to the sample but the same has been denied by the Food Inspector. In view of the evidence which clearly indicates that the samples were collected from the accused No. 2 in accordance with the Rules, the sample while forwarding to Central Food Laboratory was found with seals intact and in the light of the decisions of the Apex Court referred to hereinabove, merely because the panchas have not supported the prosecution, it cannot be said that the evidence of the Food Inspector cannot be accepted.

In view of what is discussed above, it becomes very clear that the Food Inspector collected the samples from the accused after following the procedure laid down under the Rules and the Central Food Laboratory on analysis found the sample to be adulterated. Sample had been received by the Central Laboratory from the Court in sealed condition, and there is nothing to indicate that when the sample was produced before the Magistrate for forwarding the same to the Central Food Laboratory it was tampered with. The Court, after satisfying that the sample was properly sealed, has to forward the same to the Central Food Laboratory, in accordance with the Act and the Rules and, therefore, the only conclusion which can be drawn from the facts is that the accused sold Turmeric Powder which was adulterated.

However, the prosecution has miserably failed in proving its case against the original accused No. 3. Mr. Patel submitted that he was a partner of accused No. 1 firm, and he being a partner, should be held guilty in view of the provisions contained in Section 17 of the Act. Mr. D.N. Patel, learned A.P.P. has lost sight of the provisions contained in Sub-section (4) of Section 17 of the Act. The offence must be committed with the consent or connivance, or must be attributable to any neglect on the part of the partner, if he is to be held guilty of the offence for which he was charged with the aid of Section 17(4) of the Act. It is not prosecution case that the accused No. 3 was present when the sample was collected. There is no proof regarding commission of the offence on the part of the accused No. 3. The prosecution has miserably failed to show that he was regularly attending the firm and that he was in charge of and responsible to the firm for the conduct of business. In the absence of any satisfactory evidence connecting the accused No. 3 he cannot be held guilty. Under the circumstances, the order of acquittal insofar as accused Nos. 1 and 2 are concerned is required to be set aside. So far as accused No. 3 is concerned, the same is required to be confirmed.

Mr. Oza, learned Advocate for the accused submitted that the offence is dated 8-4-1985 and the appeal against the order of acquittal is being heard after about more than 13 years, and, therefore, the accused should not be sentenced. It was urged on behalf of the State that the accused are guilty of the offence punishable under the Act, and, therefore, the Court must impose sentence as prescribed under law. It was submitted on behalf of the State that as Advocate for the accused is requesting the Court to take a lenient view, there is no need to hear the accused on the question of sentence. This view can be taken, but looking to the facts and circumstances of the case, it would be just and proper to give an opportunity to the accused to make their submissions on the question of sentence. The matter, therefore, stands adjourned to 3rd September 1998 at the request of Mr. Oza. He assures that the accused shall remain present before the Court on that date, and in view of this assurance, the Court is not issuing any coercive process.

S.O. to 3rd September 1998.

14th September 1998:

This matter could not be taken up yesterday, and today, this matter was taken up. Accused Nos. 2 and 3 both have remained present before the Court.

Accused No. 2 stated before the Court that he was not present at the time when the Food Inspector visited the shop but accused No. 3, Bhaichandbhai Bhikhalal Patel, was present and he has given sample to the Food Inspector. Learned Advocate appearing for the accused also made the same statement. This statement is contrary to the evidence on record. Later on, learned Advocate expressed his regret for making this submission.

On the question of sentence, accused No. 2 submitted that considering long interval, he may be sentenced to pay fine. He further submitted that he has closed the business soon after the present prosecution was launched. Before the Court, no record is placed to indicate that the business is closed. It is a mere statement and looking to the conduct of the accused in making a statement contrary to evidence on record, it would be risky to accept his statement. However, the fact remains that the accused No. 2, who was a partner of accused No. 1, sold the sample of Turmeric Powder to the Food Inspector which on analysis found to contain Ash insoluble in dil. Hcl. more than the permissible limit. As per the standard it should be 1.5% whereas the sample in fact contained 2.82%. It is specifically mentioned in the report that there was no addition of colour or collar dye.

Under the circumstances, in view of the fact that there is a delay and that there was no addition of coltar dye, Accused No. 1, the partnership firm is sentenced to pay a fine of Rs. 2,000/- (Rupees two thousand only), for an offence punishable u/s 16(1)(a)(i) of the Act. The amount of fine shall be deposited in the trial Court within a period of four weeks from today.

Accused No. 2, Karsanbhai Devabhai Patel, is sentenced to imprisonment for a period of three months and is also ordered to pay a fine of Rs. 5,000/- (Rupees five thousand only), in default of payment of fine, the accused No. 2 is sentenced to 15 days'', simple imprisonment, for an offence punishable u/s 16(1)(a)(i) of the Act. The accused is granted four weeks time to pay the fine. Accused No. 2 is granted four months'' time to surrender, but he shall deposit the fine in the trial Court within four weeks from today.

In the case of Dineshchandra Jamnadas Gandhi Vs. State of Gujarat and Another, the apex Court considered a case wherein Betel-Nut (supari), was found adulterated with permitted coltar dye. On the question of sentence, the apex Court, in the penultimate paragraph of the judgment held as under:

...it is a fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment though not of the fine u/s 432, Cr. P.C. or under other law appropriate to the case. We, therefore, direct that the imposition of the substantive sentence of imprisonment shall be postponed till appellant''s prayer for remission, which appellant shall make within a month from now before the appropriate Government or Authority is considered and disposed of taking into account the observations made in this judgment.

In the instant case, there was no addition of any colour. One has to also look at the object of the Act and the purpose of the Act. The object and purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislature has provided minimum punishment. The Act is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief and evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio-economic offence. The construction appropriate to a social defence legislation is, therefore, one which would suppress the mischief aimed by the legislation and advance the remedy. The offences under the Act are really acts prohibited by the police-powers of the State in the interest of public health and well-being. The prohibition is backed by the sanction of a penalty. The offences are strict statutory offences. Intention or mental state is irrelevant. [Paras 7 and 8 of AIR 1989 SC 1022 Dineshchandra (supra)].

The apex Court in the case of Ganeshmal Jashraj Vs. Government of Gujarat and Another, observed as under [referred in para 14 in the case of Dineshchandra (supra)]:

...It is common knowledge that these small tradesmen purchase the food-stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers. Ordinarily, it is not the small retailers who adulterate the articles of food sold by them. Yet it is only the small retailers who are caught by the Food Inspectors and the investigative machinery of the Food Department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesman who eke out a precarious existence living almost from hand to mouth are sent to jail for selling food-stuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food-stuff and fatten themselves on the misery of others escape the arm of the law....

In the said paragraph, the apex Court also quoted the following paragraph from the decision reported in Inderjeet Vs. State of Uttar Pradesh and Another, where his Lordship Krishna Iyer J. said:

...We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders....

Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principle basis when small men get caught by the law.

Mr. Patel, learned Additional Government Pleader submitted that the Turmeric, after purchase from dealer or manufacturer, vendor may add colour and starch for gain. If the vendor has purchased from other sources he could have produced bill for the same, and he could have availed the benefit of Section 19 of the Act. It is further submitted that he was appearing through a lawyer and, therefore, it can be said that he was given best advice in the matter. If he does not come out with specific plea about purchase of article from a dealer or manufacturer, he should not be granted any benefit. Who deals in article of food must take all necessary care as required under the Act and Rules, including that of purchasing food article under a warranty. If manufacturer, distributor or dealer sells article of food to a vendor without a warranty as contemplated, the same amounts to an offence punishable u/s 7(v) read with Section 16. (1.C) of the Act. He submitted that these vendors are really suppressing the wrong-doers by not disclosing the name of the manufacturer, distributor or dealer. Vendors are ultimately supplying food article to the public at large and therefore, if they deal in food article without warranty, they should face the consequences. It is not a defence in a prosecution of an offence pertaining to sale of any adulterated article of food to allege that the vendor was ignorant of the nature, substance or quality of food sold by him or the purchaser would not be prejudiced by the sale. Care is required to be taken by vendors while purchasing the article of food.

In the instant case, accused Nos. 2 and 3 were running a partnership firm-accused No. 1, and were dealing in the articles of food which is day-to-day required by human beings. However, being a small trader, and a period of 13 years having lapsed, it would be for the State Government to decide the question of remission. Without treating this case as a precedent, in the peculiar facts and circumstances of the present case, the sentence of imprisonment is suspended for a period of four months, to enable the accused No. 2 to make an application to the State Government for remission of sentence of imprisonment, which the accused No. 2 shall make within a period of one month from today. The State Government shall, decide and communicate its decision to the accused No. 2 within four months from the receipt of the application, taking into consideration the observations made by this Court and the apex Court as referred to in this judgment, the cases reported in BADRI PRASAD V. STATE OF MP and N. Sukumaran Nair Vs. Food Inspector, Mavelikara, the fact that thirteen years have lapsed, the adulteration was not with any harmful substance and accused No. 2 is a petty vendor the appeal stands partly allowed accordingly.