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Case Number

Crl. R.P 86 of 1978

Advocates

For the Appellant: Pirappancode V. Sreedharan Nair, V. N. Achutha Kurup and S. P. Aravindakshan Pillay, Advocates.

Judges

P. Janaki Amma, J.

Acts

S. 16(1)(a)(1) read with S. 7(1) of the Prevention of Food Adulteration Act.
Rule 9(j) of the Prevention of Food Adulteration Rules
Prevention of Food Adulteration Rules, 1955-A. 05.09
S. 13(2) of the Prevention of Food Adulteration Act
Prevention of Food Adulteration Rules.
Rule 9(j)

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Smart Summary

Structured Summary of the Opinion — Revision Petition arising from C.C. 76 of 1975

Factual and Procedural Background

Two accused (petitioners in revision) were tried in C.C. 76 of 1975 before the Judicial First Class Magistrate, Ettumanoor. On 17-12-1974 at 11:30 A.M., the Food Inspector of Kaduthurthy Panchayat purchased 600 grams of cumin seeds from the first petitioner at shop No. K. III-12. A sample of the purchase was divided into three parts, sealed into three glass bottles: one bottle was given back to the first petitioner, one sent to the Public Analyst, Trivandrum, and one retained by the Food Inspector for production in Court.

The Public Analyst reported the composition (Ext. P5) showing cumin seeds 86.7% by weight, extraneous seeds 9.0%, and extraneous matter (dust, stones, stems, etc.) 4.3%. Under the Prevention of Food Adulteration Rules (Appendix B) the permitted limits were exceeded and the Public Analyst concluded the sample was adulterated. A complaint was filed and the first petitioner was charged. The Food Inspector moved to implead the second petitioner because the shop licence was in his name; the second petitioner was then made the 2nd accused.

The first petitioner applied under S.13(2) of the Prevention of Food Adulteration Act for sending the bottle entrusted to him to the Director of the Central Food Laboratory. The Magistrate complied on 13-5-1975. The Director, upon receipt, sent a confidential communication (12-6-1975) expressing suspicion of tampering (fresh seals, unusually clean sample) but proceeded with analysis. The Director's report (1-7-1975; Ext. D1) indicated a superficially excellent, unusually well-cleaned sample with only 0.3% extraneous matter and 0.3% seeds other than cumin, and expressed suspicion of tampering.

The Food Inspector then moved to send the third bottle (the one retained for Court) to the Central Food Laboratory; the trial court allowed this motion over the petitioners' objection. The Central Laboratory report (Ext. P8) on that bottle found plenty of stalks and foreign matter, extraneous matter 4.0%, seeds other than cumin 18.3%, and concluded the sample was adulterated.

The trial court convicted the petitioners under S.16(1)(a)(1) read with S.7(1) of the Prevention of Food Adulteration Act and sentenced them to simple imprisonment for one day and a fine of Rs. 1,000 each (in default four months' imprisonment). The Additional District and Sessions Judge, Kottayam, confirmed the conviction and sentence on appeal. The petitioners filed the present revision petition challenging conviction and sentence.

Legal Issues Presented

Whether the trial court acted illegally in sending the sample (the bottle entrusted to the first petitioner) to the Director of the Central Food Laboratory at the instance of the Food Inspector, particularly given the Director's suspicion of tampering and the petitioners' objection.
Whether there was non-compliance with Rule 9(j) of the Prevention of Food Adulteration Rules (specifically, that no copy of the Public Analyst's report was delivered to the petitioners) and whether that non-compliance vitiates the proceedings.
Whether proof that extraneous matter existed in the sample must include proof that such extraneous matter was injurious to health in order to sustain a conviction for adulteration (i.e., applicability of S.2(i)(f) versus S.2(i)(a)(1)).
Whether the second accused (the licence-holder) can be held criminally liable for the sale when there is no direct evidence that he conducted or was in charge of the sale.
Whether the sentence imposed (less than the statutory minimum) was lawful and whether the court should interfere with the reduced sentence.

Arguments of the Parties

Petitioners' Arguments

The trial court committed illegality by sending a sample to the Director of the Central Food Laboratory at the instance of the Food Inspector.
There was non-compliance of Rule 9(j) of the Prevention of Food Adulteration Rules in that no copy of the Public Analyst's report was delivered to the petitioners.
Even if Ext. P8 shows adulteration, the prosecution failed to prove that the extraneous matter was injurious to health; relying on State of Kerala v. Subramonian, they argued proof of unfitness for human consumption is essential in cases under S.2(i)(f).
On behalf of the second petitioner: conviction as licensee is unwarranted because there is no evidence that he had anything to do with the sale (i.e., mere holding of licence should not suffice to convict).

The opinion does not set out detailed adversarial submissions from the State or other parties; the Court's exposition focuses on the petitioners' contentions and the Court's analysis in response.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Kerala v. Subramonian (1978 KLT 242)	Interpretation of S.2(i)(f) — that for an article to be adulterated under sub-clause (f) it must be unfit for human consumption (proof of unfitness is an essential ingredient); insect-infestation or similar defects alone may not suffice under that sub-clause.	The Court distinguished that case: Subramonian addressed adulteration under S.2(i)(f) only, whereas in the instant case the samples failed to conform to prescribed standards (Appendix B) and thus fall within S.2(i)(a)(1). Therefore Subramonian's construction of S.2(i)(f) did not preclude conviction here where adulteration was shown by non-conformity to standards.
Manibai v. State of Maharashtra ((1974) 3 SCC 760 : AIR 1974 SC 434)	Principles that (a) proof that an article is adulterated by falling below prescribed standards obviates the need to prove injuriousness to health for conviction under provisions like S.2(i)(a)(1); and (b) mere fact of a licence in a person's name does not automatically make that person criminally liable unless they were in charge/responsible (S.17(1) context).	The Court relied on Manibai to hold that once adulteration under the prescribed standard is established (S.2(i)(a)(1)), it is unnecessary to prove injury to health. The Court also discussed Manibai in considering the second accused's liability but concluded S.17(1) did not apply and the second accused's conviction was justified on the facts of this case (as he was the sole licence-holder and the first accused was effectively a salesman under him).

Court's Reasoning and Analysis

The Court addressed each principal contention by applying statutory text, lab reports, and precedent as follows:

S.13(2) and sending samples to the Director: The Court observed that as framed at the relevant time, S.13(2) permitted both the accused-vendor and the complainant to move the court for sending part of a sample to the Director of the Central Food Laboratory. The fact that a report was obtained at the accused's instance does not preclude the complainant from seeking an analysis, particularly where the Director himself had expressed suspicion of tampering in the bottle sent by the accused. Given the Director's suspicion, the accused's opposition to the Food Inspector's motion, and the Director's subsequent report, the Court found no illegality in the Magistrate sending the sample produced in Court for analysis.
Suspected tampering and multiple reports: The Court rejected the contention that the Act forbade a second report by the Director. It held that where there is a plausible suspicion that the accused dishonestly tampered with a sample to secure a favourable report, a subsequent (or second) analysis of the sample produced in Court is appropriate and permissible.
Non-compliance with Rule 9(j): The petitioners' complaint that Rule 9(j) had not been followed (no copy of the Public Analyst's report delivered to them) was not entertained because that objection had not been raised in the trial or appellate courts. The petitioners were therefore precluded from raising it for the first time in revision.
Requirement to prove injuriousness to health: The Court considered the petitioners' reliance on State of Kerala v. Subramonian (concerning S.2(i)(f)) but distinguished it. Here both the Public Analyst's report (Ext. P5) and the Central Laboratory's report on the court-produced sample (Ext. P8) showed that the sample did not conform to the standard prescribed for cumin seeds under the Rules. That placed the case squarely under S.2(i)(a)(1) — adulteration by quality or purity falling below prescribed standard — where, relying on Manibai, the prosecution need not prove that the adulteration was injurious to health. Thus proof of non-conformity to the statutory standard established adulteration.
Liability of the second accused (licence-holder): The Court examined the Manibai principle that a licence-holder is not automatically guilty by mere fact of the licence. S.17(1) (offences by companies/associations) applies where a person is shown to have been in charge and responsible for business conduct. In this case, there was no evidence that the first accused was a co-licensee; rather the evidence indicated the first accused acted as a salesman under the second accused, the sole licence-holder. The second accused did not deny being in charge of the trade conducted at the shop. On these facts, the Court concluded the conviction of the second accused was justified.
Sentence: The Court noted that the sentence imposed by the trial court was below the statutory minimum prescribed by S.16(1)(a)(i) (minimum imprisonment six months and a fine of Rs. 1,000). The trial court purported to reduce the sentence for reasons of petty trade and small quantity on hand, but the Court observed that the accused had not made out adequate material to justify reduction. Nevertheless, because the State had not challenged the reduced sentence, and because more than four years had elapsed (during which the law had changed), the Court declined to interfere with the reduced sentence despite observing that the circumstances proved did not justify reduction below the statutory minimum.

Holding and Implications

Holding: The revision petition is dismissed; the convictions of the petitioners for offences under S.16(1)(a)(1) read with S.7(1) of the Prevention of Food Adulteration Act are upheld, and the sentences as imposed (and confirmed on appeal) stand.

Implications and consequences:

The direct legal effect is that the convictions and the (reduced) sentences remain in force against both accused; the revision petition does not succeed.
The Court held that where an article fails to conform to prescribed standards (S.2(i)(a)(1)), proof that the article was injurious to health is not required for conviction — reliance on Manibai to that effect was applied. The Court distinguished decisions interpreting S.2(i)(f) (such as State of Kerala v. Subramonian) where proof of unfitness for consumption is the core requirement for that sub-clause.
The Court confirmed that examinations by the Director of the Central Food Laboratory may properly be ordered more than once when there is reason to suspect tampering; obtaining a report at the accused's instance does not bar a later analysis of the sample produced in Court, particularly where the Director signalled suspicion of tampering.
The Court reaffirmed that mere holding of a licence does not automatically absolve or convict a licence-holder — liability depends on the factual showing that the person was in charge or responsible for the conduct of the business. On the facts here, the second accused's conviction was sustained because he was the sole licence-holder and there was no material showing he was not in charge.
No broader precedent beyond these applications of existing principles was created; the Court expressly declined to disturb the reduced sentence for procedural and temporal reasons rather than on the merits of mitigation.

Disposition recorded in the opinion: Dismissed.

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Rajan v. State Of Kerala

1. The two accused in C.C 76 of 1975 on the file of the Judicial First Class Magistrate, Ettumanoor are the revision petitioners. At 11-30 A.M on 17-12-1974, the Food Inspector, Kaduthurthy Panchayat purchased 600 grams of cumin seeds from the first petitioner who was conducting sales in shop No. K. III-12 of the Kaduthuruty panchayat. The sample was divided into three parts and was packed and sealed in three glass bottles. One of the bottles was entrusted to the first petitioner, the second bottle was sent to the Public Analyst, Trivandrum and the third bottle was retained with the Food Inspector for production in Court. The Public Analyst reported that the sample consisted of—

Cumin seeds —86.7 per cent by weight. Extraneous seeds —9.0 per cent by weight. Extraneous matter including dust, stones, lumps of earth, stem etc. —4.3 per cent by weight.

2. As per the standard fixed for cumin seeds in Appendix B of the Prevention of Food Adulteration Rules, 1955-A. 05.09 the proportion of extraneous matter including dust, stones, lumps of earth, chaff, stem or straw shall not exceed 7.0 per cent by weight and the proportion of edible seeds other than cumin seeds shall not exceed 5.0 per cent by weight. The Public Analyst, therefore, reported that the sample sent was adulterated. The report is Ext. P5. A complaint was, therefore, filed against the first petitioner. After the first petitioner entered appearance, a motion was made by the Food Inspector for impleading the second petitioner on the ground that the licence of the shop stood in his name. The second petitioner was thereafter made the 2nd accused in the case. After the trial began, the first petitioner filed an application under S. 13(2) of the Prevention of Food Adulteration Act as it stood on the relevant date for sending the sample entrusted to him to the Director of Central Food Laboratory. On 13-5-1975, the Magistrate sent a requisition to the Director with the concerned sample. On examining the package, the Director suspected foul-play. He sent a confidential communication to the Magistrate on 12-6-1975 to the following effect:

“On examination of the package it has been found that the seals and the fastening of the sample package are very fresh and appears to have been performed recently. Further the sample superficially looks very excellent and well-cleaned. Such types of samples are usually not available in the market. Hence it is suspected that the contents may have been changed before sending the sample to the Laboratory. This is for your kind information. However, analysis is being done and the sample will be reported in due course.”

3. The report of analysis was sent to the following effect on 1-7-1975:

Physical examination … Excellent, unusually well-cleaned, free from dust and dirt. Extraneous matter as defined … 0.3% Seeds other than cumin seeds … 0.3% Coaltar dye … Absent Microscopical examination. … Cuminum Cyminum (L) present Foreign organic structure absent.

Opinion’. The sample of Cumin whole is suspected to be tampered with before sending to this laboratory. This had been intimated before the analysis was undertaken.

4. The report also stated that the seals were in tact. This report is marked Ext. D1.

5. On receipt of the above report, the Food Inspector made a motion for sending the third bottle containing the sample, which had been produced by him in Court to the Central Food Laboratory for a report of analysis. The court allowed the petition overruling the objection of the petitioners. The report of analysis was as follows:

Physical examination … Plenty of stalks and foreign matter found Extraneous matter (as defined) … 4.0% Seeds other than cumin seeds (Plantago Pumila Wild mainly). … 18.3% Coaltar dye … Absent. Microspopical examination … Cuminum Cyminum (L) along with nation foreign organic structure present.

Opinion: The sample of Cumin whole is adulterated. The report is marked Ext. P8.

6. The trial court held on the basis of the above report that the petitioners were guilty of offences punishable under S. 16(1)(a)(1) read with S. 7(1) of the Prevention of Food Adulteration Act. The petitioners were accordingly convicted and sentenced to undergo simple imprisonment for one day and to pay a fine of Rs. 1000/- each and in default to undergo simple imprisonment for four months each. The conviction and sentence were confirmed in appeal by the Additional District and Sessions Judge, Kottayain. The revision petition is filed challenging the above conviction and sentence.

7. The contention put forward on behalf of the petitioners is three-fold. In the first place, it is argued that the trial court committed an illegality in sending the sample to the Director of Central Food Laboratory at the instance of the Food Inspector. There was non-compliance of Rule 9(j) of the Prevention of Food Adulteration Rules in that no copy of the report of the Public Analyst was delivered to the petitioners. The third ground of attack is that even assuming that the sample was adulterated as mentioned in Ext. P8 report, in the absence of evidence that the existence of extraneous matter was injurious to health, the conviction is not sustainable in law. On behalf of the second petitioner, it was also argued that the conviction so far as he is concerned is unwarranted inasmuch as there is no evidence to show that he had anything to do with the sale.

8. On the first point, the language of S. 13(2) as it stood at the relevant time enabled not only the accused-vendor but also the complainant to move the court for sending part of the sample for examination by the Director of Central Food Laboratory. The fact that a report was obtained at the instance of the accused does not preclude the complainant to exercise the right, at any rate, in cases like the present one where the Director of Central Food Laboratory himself suspected tampering of the bottle sent at the instance of the accused. No illegality as such is made out in the action of the Magistrate. On the other hand, the intimation given by the Director that he suspected foul-play, the conduct of the accused in opposing the motion and the subsequent report of the Director amply justify the procedure followed by the Court. There is no case for the accused that the sample produced in Court had been tampered with.

9. The contention put forward on behalf of the petitioners that the Act does not contemplate a second report by the Director of Central Food Laboratory and, therefore, the second report should have been rejected by the Court has no force in cases where the accused dishonestly tampers with the sample delivered to him with a view to circumvent the provisions of law to secure a report favourable to him.

10. The complaint of the petitioners that there has been no compliance of Rule 9(j) does not arise for consideration since no such objection was put forward when the case was pending before the trial court or in the appellate Court. The petitioners are precluded from raising the contention for the first time in revision before this Court.

11. It was then argued that no case of adulteration is sustainable since it is not proved that the extraneous matter found in the sample was injurious to health. Reliance was placed on the decision of this Court in State Of Kerala v. Subramonian (1978 KLT. 242). It was held in that case that for an article to be adulterated under S. 2(i)(f) it must be unfit for human consumption either because it consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption. To put it differently, it was held that the phrase “or is otherwise unfit for human consumption” has to be read conjunctively and on this construction of the sub-clause, proof of unfitness of the article for human consumption is an essential ingredient of the definition. The gist of the decision is that the fact that an article of food was insect-infested may not by itself be conclusive proof of adulteration within the meaning of sub-clause (f). The contention put forward on behalf of the petitioners is that since the article of food in the above case was cumin seeds, the ratio thereof has to be applied, in the instant case.

12. The report of the Public Analyst in State Of Kerala v. Subramonian (1978 KLT. 242) was that the sample did not conform to the standard prescribed for cumin seeds under the Act and was, therefore, adulterated. ‘In the course of the trial, the sample given to the Food Inspector was sent for analysis to the Director of Food Laboratory. From the judgment it would appear that the Director's report which superseded the report of the Public Analyst mentioned that the sample sent for analysis contained 12.4 per cent of insect-infected seeds. The accused was acquitted by the trial court on the ground that there was conflict between the report of the Public Analyst and the report of the Director. The State preferred an appeal against the acquittal. It was in the course of the discussion that this Court made the observation regarding the interpretation of S. 2(i)(f). The judgment in State Of Kerala v. Subramonian (1978 KLT. 242) deals only with the question as to whether there was adulteration under S. 2(i)(f) of the Act. It would appear from the judgment that the Director of the Central Food Laboratory certified that the sample sent conformed to the standard fixed for cumin seeds under the Prevention of Food Adulteration Rules. There was, therefore, no question of adulteration otherwise than under S. 2(i)(f) of the Act.

13. In the instant case, both the report of the Public Analyst and Ext. P8, the report of the Director of the Central Food Laboratory mentioned that portions of the sample sent for analysis did not conform to the standard prescribed for cumin seeds under the Act. If that be so, there was adulteration falling under S. 2(i)(a)(1) which states that an article shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. It is thus clear both from Ext. P5 and also from Ext. P8 that the article was adulterated. In a case where the prosecution succeeds in showing that the accused sold adulterated article of food, it need not further establish that the article was harmful to the health of the person consuming it. See Manibai v. State of Maharashtra ((1974) 3 SCC 760 : AIR. 1974 SC. 434).

14. The further question is whether the second accused is guilty of the offence charged against him. Reliance was placed on the decision in Manibai v. State of Maharashtra ((1974) 3 SCC 760 : AIR 1974 SC. 434), referred to above, in support of the position that a person may not be liable for an offence by the mere fact that the licence of the shop where the sale took place stands in his name. In that case, the Food Inspector purchased coconut oil from a shop where one Pranjivan was conducting trade. The article was adulterated. A complaint was filed not only against the above person but also against one Mani Bai, a co-licensee of the shop. The evidence did not disclose that Mani Bai was in charge or that she was actually conducting the business carried on at the shop. It was held that the fact that Mani Bai was the licensee of the shop alone was not sufficient to warrant her conviction. Reference was made to S. 17(1) of the Act which deals with offences by companies which term includes a firm or association of individuals. If the offence is 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 business in the company as well as the company would be liable to be proceeded against. It was held that even if the business was owned by a firm or an association of Individuals and Mani Bai was a partner of that firm or member of that association of individuals, she would be liable under S. 17(1) of the Act for the sale by Pranjivan only if it was shown that she was in charge and was responsible for the conduct of the business which was carried on in the shop. The decision may not have application in the instant case inasmuch as it is nobody's case that accuses 1 and 2 are co-licensees or partners of a firm which comes under S. 17(1). The evidence is only to the effect that the 2nd accused is the sole licensee of the shop and it was the first accused who sold the sample. In the absence of material or even a case that the first accused is a co-licensee along with the 2nd accused, the first accused can be treated only as a salesman working under the second accused. Therefore, S. 17(1) has no application in the instant case. The sale by the first accused is admitted. The only case put forward by the 2nd accused was that he was not in the shop at the time of sale. He had no case that he was not the person who was in charge of the trade conducted in the shop. The conviction of the 2nd accused is, therefore, justified and it does not call for interference.

15. Before concluding, I may also state that the sentence passed by the trial court which has been confirmed in appeal does not conform to S. 16(1)(a)(i) of the Act which prescribes a minimum sentence of imprisonment for six months and a fine of Rs. 1000/-. It is only on proof of adequate and special reasons that the Court is competent to reduce the sentence. The only ground mentioned by the Court is that the petitioners are conducting a petty shop without any investment and the total quantity of cumin seeds available in the shop is only one kilogram. The accused themselves have not put forward a case that theirs is a petty trade. That at the time when the Food Inspector visited the shop the quantity of cumin seeds available for sale was only one kilogram is not necessarily an index for showing that the trade conducted in the shop is a petty one. The circumstances proved do not make out a case for a reduction of the sentence below the minimum prescribed. But since the State has not chosen to challenge the imposing of the reduced sentence and more than four years have elapsed since the taking of the sample, during which period the law itself underwent some changes, I do not propose to interfere with the decision. I need only state that the accused has not made out a case for interference with the conviction and are not entitled to acquittal. The revision petition, therefore, fails and is dismissed.

16. Dismissed.

Rajan v. State Of Kerala

Structured Summary of the Opinion — Revision Petition arising from C.C. 76 of 1975

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rajan v. State Of Kerala

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