Baharul Islam, A.C.J:— This appeal is by the complainant, Shri J.L Roy, Food and Health Inspector of Karimganj Municipality, and is directed against an order passed by the Sub-Divisional Magistrate (Judicial), Karimganj (hereinafter ‘the Magistrate’) acquitting the two respondents.

2. The appellant lodged a complaint before the Magistrate with a prayer for prosecuting the respondents under S. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter ‘the Act’) for violation of S. 7 of the Act. He alleged in the complaint petition that the respondent stored and sold adulterated atta. He further alleged that on 20-6-70 respondent, Amrit Lal Dey, sold to him a sample of atta weighing 600 grams for 0.48 paise. He divided the sample into three parts, put each part into a container, handed over one such container to respondent Amrit Lal, sent one container to the Public Analyst, and retained the third one with him. He received a report from the Public Analyst who opined that the sample was adulterated. On necessary sanction having been obtained, the two respondents were charged by the Magistrate under Section 16 read with S. 7 of the Act. The respondents pleaded not guilty to the charges. The prosecution examined two witnesses, namely, the appellant as P.W 1 and one Satya Nath Choudhury as P.W 2. The Public Analyst, who sent in his report (Ext. 3) to the Magistrate gave the result of the analysis of the sample of atta sent to him as follows:

“Gluten … 9.63% Total Ash … 2.49% Alcoholic Acidity as H2 SO4 (90% alcohol) … 0.13% Powdered Rice and Maize … Present”.

3. In his opinion the sample of atta was adulterated.

4. Objections having been raised by the respondents to the Public Analyst's report (Ext. 3) the sample which had been given to them was sent to the Director of the Central Food Laboratory (hereinafter ‘the Director’). The result of the analysis of the sample of atta by the Director was as follows:

“Moisture (determined as specified) = 14.1% Total Ash = 2.6% on dry weight basis. Ash insoluble in dil. HCl = 0.07% on dry weight basis 20 Gluten = 9.8% on dry weight basis. Alcoholic acidity (with 90% alcohol) xpressed as H2 SO4 = 0.07% on dry weight basis. Rodent hair and excreta = Absent. Dirt and grit = Neligible. Microscopic examination = Wheat starch present”.

5. In his opinion also the sample of atta was adulterated.

6. The learned Magistrate compared, illegally, the two reports, i.e Ext. 3 of Public Analyst and the report of the Director and held—

“Now after comparing the report of the Analyst of Assam with the report of the Central Food Laboratory it is seen that these two reports vary to a great extent……where the report from two sources one by Public Analyst and the other from the Director, Central Food Laboratory were at variance, the benefit of divergence goes to the accused inasmuch as it would be difficult to act upon the divergent analytical result.”

7. The relevant provisions of S. 13 of the Act are as follows:—

“13. Report of Public Analyst. (1) The-public analyst shall deliver, in suck form as may be prescribed, a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis.

(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-cl. (i) or sub-cl. (iii) of Cl. (c) of subsec. (1) of S. 11 to the Director of the Central Food Laboratory for a certificate and on receipt of the application, the court shall first ascertain that the mark and seal or fastening as provided in Cl. (b) of sub-sec. (1) of S. 11 are intact and may then despatch the part 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 sample, specifying the result of his analysis.

(3) The certificate issued by the Director of the Central Food Laboratory under sub-sec. (2) shall supersede the report given by the public analyst under sub-sec. (1).

(4) & (5) ………………”

8. A perusal of sub-sec. (3) of S. 13 shows that the report of the Director supersedes the report of the Public Analyst under sub-sec. (1) of the Section. In other words, when on an application by the accused under sub-sec. (2) of S. 13 the Court sent the sample with the accused to the Director and when the report of the Director is received, the report of the Public Analyst ceases to exist in the eye of law and cannot be taken any notice of. The learned Magistrate's comparison of the report of the Director with that of the Public; Analyst and giving the benefit of the variance between the two reports to the accused are illegal and unsustainable in law.

9. Learned counsel for the respondents concedes to this legal position. He, however contends taking strong reliance on a piece of evidence brought by cross-examination of P.W 1 that the samples of atta bought by P.W 1, were not properly put in the containers, the containers were not properly sealed and sent to the Director. His submission is that there was possibility of moisture getting into the container and rendering the atta adulterated.

10. ‘Atta’ has been defined in para No. A 18.01 of Appendix B to Appendix I of the Prevention of Food Adulteration Rules (hereinafter referred to as ‘the Rules’) as follows:

“‘Atta’ means the coarse product obtained by milling or grinding wheat. It shall contain not more than 2.5 per cent of ash and not less than 7 per cent of gluten both calculated on dry weight basis. It shall be free from grit and the alcoholic acidity with (90 per cent alcohol) shall not exceed 0.12 per cent expressed as Sulphuric acid (H2SO4) It shall be free from insect infestation and musty odour’.

11. In the instant case, as noted earlier, the Director found 2.6% of total ash, which is above the maximum prescribed limit. His opinion was also that the sample of atta was adulterated.

12. The relevant evidence of P.W 1, on which great reliance has been taken by learned counsel, is—

“The tin was a coconut oil container. St is seen now that the atta got decomposed fully inside the packet. The inside of the container has been rusted now. The polythin paper also got rotten. It is seen now that there is a gap of about 3” between the lid and the packet.”

13. It was suggested to the witness that air got into the container and damaged the sample of atta. The witness denied this suggestion. It may be remembered that the content referred to in cross-examination is the content of Material Ext. 1, which was the container of the sample retained by P.W 1 and proved before the Magistrate on 14-12-71 on which date he was examined-in-chief. He was cross-examined on 26-10-72. Probably the content got rotten during that period. Be that as it may, the atta of Material Ext. 1 was not the atta analysed by the Director; the atta analysed by the Director was the second sample of atta which had been handed over to the respondents and which was offered by them to the Magistrate with an application under S. 13(2) of the Act for sending it to the Director for analysis. It was not the respondents' case at any time that the content of sample of atta that had been handed over to them was rotten, or that the tin was rusted or that tin was not properly sealed or stamped or that there was the possibility of air getting into it. By implication it was their case that the report of the Public Analyst sent after having analysed the first sample of atta was incorrect; and that the sample of atta that was with them was not adulterated atta.

14. It is true under S. 13(2) of the Act it is the duty of the Court to ascertain that the mark and seal etc. on that container were intact or that there was no possibility of moisture or air getting into it. This precaution is for the benefit of the party other than the applicant under S. 13(2). In the instant case the sample in question came from the respondents and they did not complain in Court about any defect in the seal, mark or packing.

15. P.W 1 in his evidence deposes that after he divided the sample of atta purchased from respondent, Amrit Lal, into three equal parts, the samples were put in three containers, sealed and stamped. He further deposes that one container was given to the accused, he took one and the third sample had been sent to the Public Analyst. This evidence of P.W 1 has not been challenged in cross-examination. That evidence of P.W 1 was also corroborated by P.W 2. P.W 2 was cross-examined with reference to the content of Material Ext. 1. P.W 2 says — “there are rusts now in Material Ext. 1” But he also says “there was no rust at the time of packing”. The Director sent his report in Form II of Appendix I. Form II has been prescribed in pursuance of R. 4(5) of the Rules. Para 2 of the form is in the following terms:

“2. The condition of the seals on the container and the outer covering on receipt was as follows:

16. In his report the Director filled up Para 2 of that form with the following:

‘The seals were intact’.

17. This clearly shows that there was no defect in packing and sealing the container containing the sample of Atta that was sent to him for examination, or that it got polluted by moisture getting into it.

18. Further the Director on receipt of the sample of atta for analysis sent his Memorandum dated 27-7-72 to the Magistrate stating that the parcel containing the sample of adultrated atta had been received on 26-7-72. There are six paras in the memorandum. Only part of para (v) and para (vi) which relate to deposit of fee for analysis have been retained. Paras (i) to (iv) and first part of (v) have been crossed out. Para (i) which has been crossed out was in the following words:

“The sample is decomposed/highly decomposed/broken or smashed/leaking. It is unfit/insufficient for analysis, hence rejected. Counter-part of the sample may be sent for analysis and report”.

19. Cancellation of para (i) read with para 2 of the Certificate of the Director establishes without any shadow of doubt that the sample analysed by the Director was not polluted.

20. Counsel for respondents submits that the Director's Memorandum has not been proved and as such it cannot be treated as evidence. In our opinion it is a part of the Director's report and; may be used as evidence under S. 293 of the Cr. P.C

21. Learned Counsel submits that K. 4 of the Rules is mandatory.

22. The appellant has not disputed that the provision of R. 4 is mandatory. The only point is whether R. 4 has been complied with. The evidence of the two P.Ws read together with the report of the Director shows beyond doubt that R. 4 of the Rules has been fully complied with. The Director's certificate that “the seals were intact” is enough proof of the compliance of R. 4.

23. The fact that the content of Material Ext. 1 was found rusted and rotten cannot raise a presumption that the sample sent to the Director of Central Food Laboratory was also in a similar condition in view of para 2 of the report of the Director. There is no substance in the contention of the learned Counsel.

24. The next submission of the learned Counsel for the respondents is in any case respondent Dhirendra Chandra Dey has committed no offence. His submission is that at one place Dhirendra has been regarded as a partner and at another place as a seller; while both of them have been charged under S. 7/16 of the Act on the allegation that they “stored for sale and sold 600 grams of adulterated atta ……”. In our opinion this contention has no merit. It is true that it is the prosecution casa that it was Amrit Lal who actually sold 600 grams of atta. It is also the prosecution case that both the respondents are partners of the firm known as Cachar Traders of East Bazar, Karimganj in which the atta was stored and sold. This allegation of the prosecution has not been denied by the respondents. In their examination under S. 342 of the Cr. P.C, respondent Dhirendra stated that he ‘did not sell any adulterated atta’. He said: “I do not deal in retail sale. I am wholesaler”. Exactly the same were the answers of the other respondent.

25. Section 16 of the Act provides:

“If any person—

(a) Whether by himself or by any other person on his behalf………stores, sells or distributes any article of food—

(i) Which is adulterated……he shall ……be punishable…………”

26. What Section 16 contemplates is that the sale may be by a person or on behalf of a person. In the instant case Dhirendra Lal does not disown his connection with and management off firm. He, therefore, will be vicariously liable under Section 17 of the Act. S. 17 provides:

“17. Offences by companies. (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) ………………”

27. In the Explanation, for the purposes of Section 17 ‘company’ has been defined as—

“‘company’ means any body corporate and includes a firm or other association of individuals’.

28. Section 17 read with the Explanation clearly shows that a partner of a firm, who may not actually sell, will be vicariously liable for punishment. Dhirendra Lal has not denied that he was one of the partners of the firm. So the burden would lie upon him under the proviso to Section 17(1) to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the sale of adulterated atta. In our opinion, therefore, both the Respondents are equally liable. In our opinion the guilt of both the respondents has been proved beyond reasonable doubt.

29. In the result we set aside the order of acquittal and convict the respondents under Section 16(1)(a)(i) of the Act for violation of Section 7(1) of the Act.

30. Now the question of sentence: The offence under Section 16 is “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”. There are two provisos. Proviso (i) reads as under:

“If the offence is under sub-cl. (i) of Cl. (a) and is with respect to an article of food which is adulterated under sub-cl. (1) of Cl. (i) of Section 2………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 both imprisonment for a term of less than six months and fine of less than one thousand rupees”.

31. In the instant case admittedly both the respondents were whole-salers. The offence under Section 16 of the Prevention of Food Adulteration Act is of strict liability. No mens rea is necessary in such cases. In such offences a duty is cast on the seller, storer or distributor to see that the food is not adulterated.

32. In this case, however, the atta was found to be adulterated as it was found below the prescribed standard. In our opinion therefore ends of justice will be met if they are sentenced to-imprisonment for three months each and to pay a fine of Rs. 500/- each, in default, to suffer imprisonment for 15 (fifteen) days more, each. The appeal is allowed. The respondents shall now surrender forthwith to serve out the sentences.

33. Appeal allowed.