The State of Assam vs Paban Kr. Agarwalla and Another

S. Haque, J.—State of Assam prefers this appeal against the judgment and order of acquittal dt. 27.3.80 passed by the Sub Divisional Judicial Magistrate, Tinsukia in C.R. Case No. 858 of 1978 u/s 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (herein after called the Act).

The Food Inspector took sample of mustard oil from the accused Respondents in the shop M/s Sajan Kumar Paban Kumar on 18.1.78 by observing the formalities in presence of witnesses. On analysis, the Public Analyst found the sample to be adulterated. Thereafter, obtaining due sanction u/s 20 of the Act, prosecution lodged against the 2 accused to face the charge u/s 16 read with Section 7 of the Act and they pleaded not guilty in the trial. The Magistrate acquitted the two accused mainly on the ground that the Firm M/s Sajan Kumar Paban Kumar was not made a party accused in the case. Perused the evidence and exhibited documents on record and the impugned judgment.

Shri Ashok Mr. Sarma (PW-1) was the Area Food Inspector of Tinsukia at the relevant time. He visited the shop on 18-1-78 and accused Pabar Kumar disclosed himself as sales man and Mahabir Prasad Agarwalla as proprietor of the shop. PW--1 had to take police help because initially Paban Kumar refused to give sample of mustard oil for analysis. In the meantime, Mahabir Prasad Agarwalla Proprietor of the shop and father of Paban Kumar also arrived. Mahabir Prasad directed Paban Kumar to give sample of mustard oil to PW--1. Then the notice Ext. 1 (Form--VI) in pretence of 2 witnesses Phani Dutta and Satish Talukdar was served on Paban Kumar, and took the simple 375 gram of M. Oil on paying the price. Paban Kumar Agarwalla granted receipt Ext. 2 for the sale of the M. Oil as sample. PW--1 proved these facts and the documents Ext. 1 and 2 ; the PW. 2 Phani Dutta also corroborated.

The sample of M. Oil was divided into 3 equal pane and put in 3 clean dried bottle and sealed/warpped and put seats thereon and placed labels. All these were done in pretence of Paban Kumar and Mahabir Prasad and the 2 witnesses PW--1 signed on the labels and accused Paban and the witnesses also signed on the labels. PW--2 Phani Dutta Upadhya was present all through and fully corroborated the evidence of PW--1 about observance of formalities.

Both PW--1 and PW--2 were cross examined at great length on the points of observing the formalities in taking the sample and packing it in the bottles but no irregularities could be brought out or shown. They have proved that sample was taken by observing these formalities as per law and rules on 18.1.78. Learned Counsel Mr. D.N. Baruah for the Respondents made no submission alleging deficiency or irregularity in the process of taking the sample on 18.1.78.

On 19-1-79, the Food Inspector prepared the memorandum under from VIII mentioning sample No. AS/5/78, name of vendor, date and place of taking sample, description of the articles etc and sealed it with the specimen impression and send it with the sample to the public Analyst through registered post, and a copy of the memorandum and specimen impression of the seal used to seal the packet of sample was sent separately by post. Ext 6 was the memorandum to public analyst. PW.--1 gave evidence on these facts about observing formalities as per Rules 17 and 18 and proved the documents. It was proved that the formalities had been duly complied with.

The report of the public Analyst dt. 24-2-87 was received by the Local Health Authority on 18-3-78. Ext. 7 was the report of the public analyst containing his opinion that the sample of mustard oil did not conform to the standard of the mustard oil i.e. it was adulterated. Ext. 7(1) is the signature of the public Analyst and Ext. 7(2) was the signature of Dr. A.N.N. Hasan who was the Local Health Authority at that time. PW--1 had proved these. There was no dispute on these facts.

The Food Inspector submitted all the papers before the Health Authority praying for sanction for protection against Paban Kumar Agarwalla and Mahabir Prasad Agarwalla, and on consideration of all the documents Dr. Hasan granted sanction in recordance with the provision of Section 20 of the Act, Ext. 9 was the sanction under the signature Ext. 9(1) of Dr. Hasan. Notice/letter with copy of the public analyst was duly served on accused Paban Kumar Agarwalla in compliance with the provisions of Section 13(2) of the Act. Ext. 13 was the letter issued and served on the accused. All these facts had been proved by the evidence of Food Inspector (PW-1). These are not in dispute now.

Ext. 7 was the report of the Public Analyst. He found the sample of Mustard oil for analysis with the seal thereon intact and unbroken. The seal fixed on the container and outer cover of the sample fully tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. These remarks of the Public Analyst on the body of the report were not in dispute. The opinion of the Public Analyst was that the sample did not conform to the standard of mustard oil. There was no delay in analysis. The sample was received by the analyst on 23rd day of January, 1978 and the report was prepared and signed on 24-2-78. Item No. A. 17.06 in the appendix ''B'' of the P.F.A. Rules has laid down the standard to which mustard oil must conform. All the ingredients except the specification value were within the standard. The specification value was found at 185.4 which was in excess of the standard value of 168 to 177. The excess was 8.4. Therefore the sample was found not in conformity with the standard of mustard oil and so, adulterated.

It was proved by the evidence on record that the sample of mustard oil taken from the accused Paban Kr. Agarwalla and Mahabir Prasad Agarwalla was adulterated. Paban Kumar Agarwalla was the vendor and acted under the direction of Proprietor Mahabir Prasad Agarwalla. They stored for sale and sold adulterated mustard oil (food) in contravention of Section 7 of the Act.

Learned Public Prosecutor Mr. B. Choudhury submits that the Magistrate committed error and illegality in acquitting the 2 accused on the ground that the firm was not prosecuted along with the 2 accused. It is submitted that Mahabir Prasad was the Proprietor of the firm and his son Paban Kumar was the vendor. It is found from the evidence of Food Inspector that Mahabir claimed to be the proprietor and Paban Kumar claimed to be the salesman the time of taking the sample. PW--2 Phani Dutta Upadhaya had corroborated the Food Inspector (PW--1) on this fact. There could be no reason to disbelieve them. It was proved that accused Mahabir was the Proprietor and accused Paban Kumar son of Mahabir was the vendor. Mr. Choudhury further submits that a proprietorial firm need not be prosecuted as accused along with the proprietor and the salesman, whereas Mr. D.N. Baruah submit that without the firm being prosecuted, the 2 accused could not be convicted and punished for contravention of Section 7.

Section 17 deals with offences by companies, According to Sub-section (1) in case of an offences by a company the person nominated or the in-charge and the company shall be deemed to be guilty. In view of this unless the company itself is prosecuted, there can be no prosecution of Director, Manager Secretary etc. Such persons cannot be held guilty unless the company is prosecuted together and held guilty. A partnership firm is also a company, and so a partner can not be prosecuted unless the partnership firm is itself prosecuted, because partner''s liability arises only where firm has committed offence. But, in the care of a Propriatorial firm the position would differ. There is a distinction between a Proprietarily firm and a company or partnership firm. Under the Prevention of Food Adulteration Act, the proprietor as also the proprietarily firm can not both be proceeded against. In the case of a proprietarily firm the firm has no separate legal entity apart form the Proprietor, Whereas a company/partnership firm is a legal entity. In a proprietarily firm the firm name may be Anr. name than that of the Proprietor himself. A ''company'' as defined in explanation (a) of Section 17 of the Act together with its Officers-incharge at the time of the offence committed can both be prosecuted against u/s 17, But a proprietarily firm is not a ''company'' in law. The trial court committed error relying on 1973 Assam Law Reports 169 H.P. Lohia v. The State of Assam and Anr. That case was with regard to partnership firm and where it was held that prosecution of a partner of a firm to the absence of a complaint against the firm was bad in law, Section 17 was applicable in the case. But the instant firm Sajan Kumar Paban Kumar was a proprietarily firm of which accused Mahabir Prasad Agarwalla was the sole proprietor. The law applicable against a company partnership firm was made applicable in case of Proprietarily firm here the trial court committed error. On this account the order of acquittal deserves reversal, (Relied AIR 1968 Cal. 348 corresponding to 1969 Cri. L.J. 912 VOL. 74).

The order of acquittal of the two accused persons was bad in law. The charge u/s 16 read with Section 7 of the Food Adulteration Act had been proved beyond doubt against both the accused Paban Kumar Agarwalla and Mahabir Prasad Agarwalla and punishable u/s 16(a)(1) of the Act.

The question is whether there is any extenuating circumstance to impose a sentence on the two Respondents less than the minimum compulsory prescribed. The commission of offence has been well established. The State has come against order of acquittal. In such a ease the ground that the offence was committed in the year, 1978 (11 years ago) can not be counted as an extenuating circumstance for a liberal sentence. The practice of imposing liberal punishment or remission to it as precedent on ground of committing the offence long time passed and the crime being against society, looses the deterrent character and spirit which law demands for safeguarding and protecting the society. Thus no extenuating circumstance is in sight.

This appeal is allowed. The impugned judgment of acquittal dated 27-3-1980 in C.R. Case No. 858 of 1978 of the Court of Sub-Divisional Judicial Magistrate is hereby set aside. Both the accused Respondents Pabarn Kumar Agarwalla and Mahabir Prasad Agarwalla are now convicted u/s 16 read with Section 7 of the Prevention of Food Adulteration Act and they ate sentenced to suffer rigorous imprisonment for six (6) months and to pay fine of Rupees two thousand each, in default to suffer imprisonment for 2 (two) months. The Respondents are directed to surrender before the Court of Sub-Divisional Judicial Magistrate, Tinsukia Immediately to serve out the sentence.

Send down the records immediately for necessary action.