1. These appeals are directed against the judgment and order of the Judicial First Class Magistrate, Visakhapatnam directing the acquittal of the respondent, hereinafter referred to as the accused, of the three charge-sheets preferred against him under Section 16 read with Sections 7 and 2(j) of the Prevention of Food Adulteration Act (Central Act No. 37 of 1954) hereinafter referred to as the Act.

2. The facts of the prosecution case are briefly as follows: On 10-8-1957, the Food Inspector, complainant in the case, proceeded to the premises of the Markendeya Rice Mill and found there a number of bags with Toor Dhall stocked, in all amounting to 98 bags. He wanted that three quarters seer of the redgram contained in these bags be sold to him for Rs. 0-6-6. It is the case of the prosecution that the accused is the Managing Partner of Sri Rama Trading Company which company was a whole-sale dealer in pulses and other food-stuffs, that the accused is also a partner of the Markendeya Rice Mill at Visakhapatnam and that the 98 bags of Dhall have been stocked on the premises of the Markendeya Rice Mill for and on behalf of Sri Rama Trading Company. He noticed that the three lots of bags were emitting bad smell and he could know from the smell that the stocks were drenched in water.

3. After having purchased the three quarters seer of red gram from each of the lots, the complainant (P.W 1) prepared in the presence of mediators three separate samples and making each sample into three parts, placed them in three bottles, which were duly sealed in the presence of the witnesses. One of the bottles containing the sample from one lot, along with two other bottles similarly containing samples from the other two lots were sent to the Food Analyst, whose report showed that each one of the samples consisting of redgram dhall contained an artificial water-soluble yellow colouring, matter derived from coal-tar and hence the Analyst found that each of the samples sent to him was misbranded. Hence the prosecution.

4. The learned Judicial First Class Magistrate, who tried the cases acquitted the accused, basing his acquittal on an erroneous view of the construction of Rule 30 of the Rules framed by the Central Government in exercise of the rule-making power conferred under the Act. He took the view that Rule 30 prescribed the maximum limit of permissible colour which may be added to any food as one grain per pound of food.

5. From this, the learned Magistrate concluded that Rule 30 and rule 29 need not be read together. Rule 29 provides that coal tar dyes or synthetic organic colours within the permissible limits could only be employed in respect of the food stuffs enumerated in the said rule, which list did not include dhall, and concluded that under rule 30 colour may be added to any food. He held that rule 30 is not subordinate to Rule 29, and that, as in this case the quantity of colour that was shown to be contained in the samples of dhall did not amount to the maximum provided in the rule 30, the learned Magistrate held that the samples of dhall in question were not misbranded and on that ground acquitted the accused.

6. I have no hesitation in holding that the learned Judicial First Class Magistrate was entirely wrong in the view he took of the Rules 29 and 30. In this connection, it is necessary to note that Rule 26 contained a list of natural colouring matters that could be used in-or upon any article of food. We are not concerned with this rule. Rule 27 prohibited the use of any form of inorganic colour or pigments in any article of food. Rule 28 specified the use of coal tar dyes in food and item (e) of this rule, refers to Tartazine (F.D.C Yellow No. 5), which is the colour matter that is alleged by the prosecution to have been used in this case. Rule 29 is as follows:

“Use of Permitted Synthetic Organic Colours or Coal Tar Dyes Prohibited: Use of permitted Synthetic organic colours or coal tar dyes in or upon-any food other than those enumerated below is prohibited:

(a) Ice cream including mixed ice-cream

(b) Dairy products except milk, dahi, butter, ghee, chhana, condensed milk, cream and baby food.

(c) Smoked fish.

(d) Egg preparations.

(e) Sweets including pastry and confectionery.

(f) Fruit products as per specifications under Fruit Products Order.

(g) Non-alcoholic beverages except tea, cocoa and coffee”.

Rule 30 reads as follows: “The maximum limit of permissible colour which may be added to any food shall be one grain per pound of food.’

7. It is obvious Rule 30 was referring to the use of permissible colours as laid down in Rules 26, 28 and 29. The only correct method to be followed in construing these rules is to read Rules 26, 28 and 29 with Rule 30 and as under Rule 29 dhall is not one of the foodstuffs enumerated therein, no coal tar dye could have been used even to any infinitesimal part in treating dhall. Hence Rule 30 cannot in any way affect the guilt or innocence of the accused in respect of the two sections under which he was prosecuted.

8. Mr. Adavi Ramarao, the learned counsel for the accused raised the following points:

1. There was no complaint in this case as required by Section 20 of the Act inasmuch as the authorisation authorising the Food Inspector in this case to file the complaint had not been produced in evidence; and the complaint purports to be signed not only by the Municipal Health Officer, Food Inspector, but also by the Sanitary Inspector, whose designation appears in the cause title to the complaint. As an unauthorised person, namely, Sanitary Inspector, has been impleaded as a party to the complaint, the complaint must be deemed to be invalid.

2. The prosecution of the accused was barred by Sec. 17(2) of the Act inasmuch as it has not been established that the sale in question was made with the consent or connivance of or through the neglect of the accused, who is being prosecuted as the Managing Director of the Company along with the Company itself.

3. The stocks of dhall were never intended for sale. They were not even stored. They were lying on the premises of the Markendeya Rice Mill for the purpose of drying up as they were soaked wet and to determine how to deal with them after they are dried up and are in a fit state to be stored.

9. As regards the first point, it is true that the Sanitary Inspector has joined in the complaint. But this may be regarded as mere superfluity, as he is only a subordinate of the Health Officer, and as the Municipal Health Officer himself signed and filed the complaint as the complainant. It is true that the authorisation authorising the Municipal Health Officer has not been produced.

10. That the Municipal Health Officer has been so authorised has been stated in the complaint itself and also in the evidence of P.W I. In fact the number of the Municipal council's resolution and the date are also stated in the complaint. If this was not enough and if the accused seriously questioned the authorisation, it was open to him to have sent for the same and satisfy himself and if in fact the Municipal Health Officer was not authorised, nothing could have been easier for the accused than insisting on the prosecution being stopped in its initial stages. I do not consider that there is much force in this point.

11. As regards the second point, it is not disputed by the learned Public Prosecutor that the prosecution in this case against the accused has been launched in his capacity as the Managing Partner of the Sri Rama Trading Company. That being the case, we have got to look to Section 17 of the Act, which specifically provides for the prosecution of a company and persons in charge of the business of the company, such as the Director, Partner, Secretary and other persons holding similar office.

12. Section 17 of the Act is as follows:

“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 of, 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.

Explanation: For the purposes of this section—

(a) “company” means any body corporated, and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in the firm”.

It may be seen from the section that 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 or was responsible to the company, for the conduct of the business of the company, could be also prosecuted for the same offence and shall be deemed to be guilty of the oflence along with the company and shall be liable to be prosecuted and punished accordingly, provided it is established that the offence in question had been committed with the consent and connivance of the said director, manager, secretary or other officer in charge of or responsible to the company, for the conduct of its affairs, or when it is proved that the offence is attributable to any neglect on the part or such director, manager etc.

13. The explanation to the section makes it clear that the expression ‘director’ includes a partner of a firm who is in charge of the affairs of the firm in question. In this case, there is absolutely no evidence placed to show that the accused, who admittedly was the Managing Director of Sri Rama Trading Company, knew that the stock of dhall in the 98 bags, which had arrived on the previous day in a soaked and damaged condition, was misbranded, and since that necessary element of knowledge has not been shown to have existed, there can be no question of the accused having consented to the sale of misbranded article or connived at that sale; nor is there evidence that through the neglect of the accused such misbranded articles came to be sold as genuine. It is thus clear that the most important ingredient necessary to connect the accused, who was only the managing director of the firm, with the activities of the firm, is lacking. That apart, it cannot even be said on the evidence before me that the Company itself had committed the offence under the Act.

14. It is the defence of the accused in this case that he had placed an order for 220 bags of dhall with a firm Ganesh Lal Omprakash of Aligarh. Of these, 122 bags had been received by goods on 5-8-1957 presumably in a good state. The remaining 98 bags arrived on 9-8-1957 and as they were found to be in a wet and damaged condition, the accused took open delivery of the bags in the presence of the Station Master, in order that further damage may be avoided and pending the instructions from the sender.

15. These bags were apparently dumped on the premises of the Markendeya Rice Mills of which the accused was also a partner. It is also the defence of the accused that the order placed by him was for pure special toor dhall and not for the dhall which was polished or coloured. That the bags were damaged and were emitting a bad smell and soaking wet is admitted by the Food Inspector, who inspected these bags.

16. In these circumstances and as the main plank of the defence is not in dispute, it is impossible to hold that the accused had any knowledge of the condition of the dhall inside the bags. It is true, as contended by the learned Public Prosecutor, that had it been shown that the earlier stocks of 122 bags that were received were also similarly coloured it must have been put to the accused during enquiry whether the subsequent stocks have not been in the same state, in which case there is the possibility to infer that the accused might have the same knowledge that the stock should have been misbranded even in regard to the subsequent consignment of 98 bags. As it is, there is no such evidence.

17. Therefore it is only reasonable to assume that the accused expected or believed that when the earlier consignment corresponded to the sample, the latter one also would so correspond. In any event, having regard to the conditions in which the stock was received and also having regard to the fact that the Food Inspector came on the scene only on the following day, even before the dhall could be dried and its condition ascertained by the accused, it is impossible to hold that the latter had any knowledge of what the state of the dhall was — whether it was misbranded or otherwise.

18. It is contended by the learned Public Prosecutor that it is unnecessary to enter into the niceties of the possible interpretation of the various expressions used in the Act in view of the fact that under section 2(xiii), “Sale” means the sale of any article of food, whether for cash or on credit……… for human consumption or use, and includes having in possession for sale of any such article and also an attempt to sell any such article.

19. From this it is contended that as the dhall in question was an article of food and as it was sold to the food Inspector and as its condition was found to be misbranded, the offence must be said to have been committed. This argument overlooks the, very purport and object of the Act, namely, to prevent a conscious sale of adulterated or misbranded foodstuffs. Section 7 which prohibits the storing and selling and distribution of misbranded food, clearly implies that the selling, storing and distribution must have taken place with the knowledge that the food in question was misbranded. For, if a person innocently believed that it was not misbranded goods that he was selling, but that it was genuine commodity, fit for sale, and not prohibited, the offence could not be said to have been committed.

20. In this case, it is in evidence that having regard to the bad state of the stocks of the dhall, the accused has not even decided as to what to do with it — whether it should be destroyed or should be returned to his vendor, as unfit for human consumption — and unless it is known affirmatively that the bags were kept in the Markendeya Rice Mills and not on the premises of Sri Rama Trading Company for the purpose of sale and with that object they were stocked there, in my opinion, no offence could be said to have been committed. According to me, the stage has not come for the storing of the bags as they were not in a fit state for storage.

21. In the view I have taken on the merits of the case, it is unnecessary for me to consider the scope of the expression “sale” used in the definition of section 2(xiii) of the Act, which clearly contemplates that if possession is what is regarded as an offence, that possession must be with a view to sell the article. There is no such evidence in this case.

22. In the result, I dismiss the appeal and confirm the acquittal of the accused in this case, not on the ground on which the learned Magistrate has done, but for the reasons set out above.

23. It is completely unnecessary for the Food Inspector to have launched three prosecutions in this case as obviously they relate to one and the same consignment and it could not have been the intention of the legislature that for every sample taken the Food Inspector should launch a separate prosecution. Such attempts to launch multifarious prosecutions might result in an abuse of the process of the law apart from the harassment to the accused involved in doing so.

BD/K.S.B

24. Appeal dismissed.