Shambhoo Narain v. Motilal

1. This appeal emerges from the judgment of the learned Municipal Magistrate, Udaipur, acquitting the respondent Motilal Under Section 16, read with Section 7, Prevention of Food Adulteration "Act, 1954, (hereinafter referred to as the-Act).

2. The prosecution story is short and simple. It is alleged that on June 14, 1968, at about 6 a. m. Food inspector Shamboo Narain, P, W. 1, went out on his usual round. He found the accused Motilal' selling milk to the Shiv Nivas hotel-keeper at Bara Bazaar, Udaipur. The accused was having 15 Kgs. of milk and was also in possession of measurement-pots. A notice (Ex, P. 1) in form No. VI was given to the accused.. It bears the signature of the Food Inspector Shambob Narain as also the attestation of Gobind, P.W. 2, Ambalal, P.W. 3, and Hiralal, P.W. 4. After giving the notice the Food Inspector purchased 660 MMs. of milk for 50 Paise. He divided the milk into three parts. Each part was then taken in a bottle. All the three bottles were duly sealed. A memo (Ex. P. 2) was prepared on the spot. It bears the signatures of the accused Motilal and the three attesting witnesses, namely, Gobind, P. W, 2, Ambalal, P.W. 3 and Hiralal, P.W. 4. One sample-bottle was transmitted to the accused Motilal; the other Was retained by the Municipal authorities. The third sample was sent to the Public Analyst-Rajasthan, Jaipur, with a memorandum in form No. VII (Ex. P. 3), bearing a specimen seal. " The sealed bottle was received by the Public Analyst Rajasthan, Jaipur, on June 18, 1968. He analysed the contents of the bottle and declared the result as under (vide Ex. P. 4):

In the opinion of the Public Analyst the sample of the milk was adulterated by reason of its containing about 53% of added water. The Food Inspector then obtained sanction of the Municipal Council, Udaipur, for the prosecution of the accused Motilal. The sanction is marked Ex. P. 5. Thereafter a complaint was made in the Court of the Municipal Magistrate, Udaipur, against the accused Motilal for his prosecution Under Section 16 read with Section 7 of the Act. The accused denied "the commission of the offence. The prosecution examined four witnesses, namely, Sham-bhoo Narain, Food Inspector, P.W. 1, and 'Motbirs' Gobind, P.W. 2, Ambalal, P.W. 3 and Hiralal, P.W. 4. In his statement, recorded Under Section 342, Criminal P.C., the accused deposed that he knew nothing in the matter and that he has been falsely implicated. The Inspector told him to sign 'Panchnama' and, therefore, he put his signature thereon. He further said that the 'Motbirs' were friendly to the Inspector. He did not produce any evidence in his defence. Eventually, the trial court gave finding that it was not proved that the accused was a milk-vendor, although it was a fact that the Food Inspector bought the milk on the spot from the accused for the purpose of sample. The trial court has also held that there is nothing on the record to show that the memorandum in form No. VII (Ex, P. 3) and the specimen impression of the seal were sent to the Public Analyst separately by registered post in accordance with the provisions of Rule 18 of the Prevention of Food Adulteration Rules (hereinafter to be referred to as the Rules).

The trial Court also observed in its Judgment that the Public Analyst had not mentioned in his report Ex. P. 4 that on receipt: of the package containing the sample for analysis, fie compared the seal of the container with the specimen impression received separately and, therefore. Rule 7 has also been violated. It is on these findings that the accused Motilal has been acquitted.

3. The Municipal Council, Udaipur,, felt dissatisfied with the above judgment and has taken the present appeal. learned Counsel for the appellant has vehemently challenged the findings of the trial court. He submits that the transaction of sale has been fully proved in this case. He further urges that it is in the evidence of the Food Inspector that a copy of form No. VII had been sent to the Public Analyst by the Comrmissioner, Municipal Council, Udaipur, through post in accordance with the provisions of Rule 18, learned Counsel has also argued that presumption should be raised in accordance with the provisions of Section 114, illustration (e) of the Evidence Act that the Public Analyst acted in accordance with Rule, 7 and that he must have compared the specimen impression received by him with the seal on the container. learned Counsel for the respondent supported the judgment of the Court below.

His main argument is that the record does not speak that Rule 7 and Rule IS have been duly complied with. The evidence led by the prosecution that the copy of the memorandum of the specimen impression was sent to the Public Analyst according to law has been rebutted in the cross-examination of the Food Inspector Shambhoo Narain, P.W. 1. learned Counsel for the accused further urged that the provisions of both the rules are mandatory in nature and their non-compliance vitiates the charge brought against the accused. The counsel also submitted that the prosecution has failed to prove that the accused dealt in milk business.

4. I will first take up the question of sale. The word 'sale' has been defined in Section 2(xiii) of the Act. It rims as follows:

"Sale", with the grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for' sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;

A bare perusal of the definition indicates that 'sale' for the purpose of analysis also falls within the ambit of this definition. The matter went up for consideration before their Lordships of the Supreme Court in Mangaldas v. Maharashtra State . Their Lordships held:

The Act gives a special xlcfmliitm of 'sale' in Section 2(xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.

A contract comes into existence by the acceptance of a proposal made by one person to another by that other person. The latter is not bound to accept the proposal. It may not, however, necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract.

The above being the settled law, it is difficult to appreciate the reasons which led the trial court to hold that the transaction like the present one does not amount to 'sale', Apart from the statement of the Food Inspector Shambhoo Narain, P.W. 1, and 'Motbir' Gobind, P.W. 2, to the effect that the accused was selling his milk to Shiv Nivas hotel and that he had measurement pots with him, there is the categorical admission of the accused in his statement recorded -Under Section 342, Criminal P.C. that he did sign the Panchnama Rk. P. 2. Mere non-production of the licence, which was in possession of the accused, would not negative the statements of the aforesaid witnesses.

5. I may now take up the implication of Rule 18. It reads as under:

A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him.

The Food Inspector Shambhoo Narain has said in his statement that one sample-bottle with form No. VII was sent to the Public Analyst, Jaipur, through registered post. A copy of form No. VII with a forwarding letter of the Commissioner was separately sent to the Public Analyst, by post. In the cross-examination the witness has said that a copy of form No. VII was sent by post, and it was done by the Commissioner. The Commissioner, Municipal Council, Udaipur, has not been examined in this case. A presumption under illustration (e) to Section 114 of the Evidence Act arises that the official act has been regularly performed. The statement of the" Food Inspector in the examination-in-chief, as referred to above; could not be rebutted by the accused in the cross-examination. The deposition of the witness in the cross-examination that the Commissioner sent a copy of the form No. VII to the Public Analyst does not mean that he did so in violation of Rule 18 of the Rules. That apart, all that the spirit of the rule needs is that copy of the memorandum and the specimen impression of the seal should reach the Public Analyst. Whether .they reach him by post or otherwise will hardly make any difference. A mere omission to send the same by registered .post would only be a technical irregularity which will not affect the merits of the case. In this view of the matter, I' am not convinced with the soundness of the reasoning contained in the judgment of the lower Court on the point in issue.

6. I will now take up the implication of Rule 7 (1) of the Rules" Sub-rule (1) of Rule 7 is in the terms following:

On receipt of a package containing a sample for analysis from a food inspector or smother person the public analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.

In the certificate issued by the Public Analyst it is given that the sample was received by the Public Analyst on June 18, 1968, from the Food Inspector, Udaipur, for analysis, properly sealed and fastened, and that the seal was found intact and unbroken. It is not mentioned in the certificate that the seal on the container "was compared with the specimen impression repeived separately. Various High Courts have taken different views in regard to the interpretation of Rule 7. The matter, however, went up for consideration of their Lordships of the Supreme Court in K. K. Pookunju v. K. K. Rama Krishna Pillai, 1969 Ker LT 50 (SC). The relevant portion of the observations of their Lordships is reproduced below:

Under Rule 7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the package containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the ' specimen impression received by him with the seal of the container.

This matter was also exhaustively thrashed out by a Full Bench of the Madhya Pradesh High Court, in the case. State v. Chhotekhan A.I.R. 1970 Madh Pra 29 (FB), wherein it has been laid down:

The principle embodied in illustration (e) Under Section 114 of the Evidence Act is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been complied with. As we have indicated elsewhere, if the Statute itself had provided that certain regulations and formalities must be complied with before the report of the Public Analyst could be admitted in evidence, the position would have been different, for, in that case, it would be necessary to specifically establish that those regulations and formalities were duly observed. In the absence of "such a provision, what purports to be report signed by a Public Analyst is, without any other proof, admissible in evidence and the presumption arising Under Section 114 of the Evidence Act to the regular performance of official acts also applies to it. The accused is not thereby prejudiced.

Thus, it is a settled law that the report of the Public Analyst is, without any other proof, admissible in evidence and the presumption of illustration (e) to Section 114, Evidence Act, would apply to such a case. It is, however, a rebuttable presumption, but in the instant case no rebuttal evidence on the point is forthcoming. Be that as it may, the finding of the trial court in regard to the interpretation of Rule 7 cannot be said to be correct.

7. Coming now to" the question of sentence, relevant portion of Section 16(1)(a)(1), as amended by Act No. 49 of 1964, reads as follows:

(1) If any person

(a) Whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells, or distributes any article of food (1) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;... he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be 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:

Provided that

(i) if the offence is under Sub-clause (j) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (i) of Section 2 or mis-branded under Sub-clause (k) of Clause (ix) of that section....

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 of both imprisonment for a term of less than six months and fine of less than one thousand rupees.

Section 2(i)(1) of the Act is in the terms following:

Adulterated An article of food shall be deemed to be adulterated (1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.

A perusal of the above provisions shows that if any person .sells milk, which is adulterated, he shall, in addition to the penalty to which he may be liable Under Section 6, be punishable with minimum imprisonment for a term not less than six months and to pay a fine which shall not be less than one thousand rupees. The proviso (i) to Section 16 of the Act no doubt lays down that in such a case the sentence can be reduced for any adequate and special reasons. There is no doubt that the proviso applies to an article of food 'adulterated', as defined in Sub-section (i) Clause (1) of Section 2 of the Act, or 'mis-branded' as defined in Sub-sec, (ix) of that section, though it does not apply to the sale of the articles which are prohibited by the Food (Health) authority in the public interest, and the court can reduce the minimum sentence prescribed by the Legislature if there exists adequate and special reasons. It is now to be seen whether in the present case adequate and special "reasons subsist to enable the accused to avail himself of the benefit of the proviso.

8. learned Counsel for the respondent submits that in the matter of sentence there are conflicting authorities and that tho sample was takeri from the respondent more than 2% years back and that the respondent is the first offender. Therefore, he should not be penalised with the minimum sentence prescribed by law and that he should be given benefit of proviso (i) to Section 16 of the Act. He has cited certain authorities in support of his proposition.

9. In Public Prosecutor v. Nagabhushanam A.I.R. 1965 Andh Pra 118, it has been observed that as the offence was committed more than 2% years ago and the respondent was a first offender, a fine of Rs. 500/- would meet the ends of justice., That is the case of adulterating coconut oil which contained 79% of mineral oil. la that part of the country, where the occurrence took place, coconut oil is used for external application and not for preparation of food-stuffs. There is another case reported as Public Prosecutor v. Muthu Naicker, (1963). 1 Mad LJ 55 : (1963) 1 Cri LJ 688. In that case the accused was convicted Under Section 16, read with Section 7 of the Act for selling adulterated milk, coataining 18% of added water. As the accused was the first offender, he was enlarged after admonition Under Section 3 of the Madras Probation of Offenders Act.

10. Contrary to the above decisions, there is the authority of the D. B. of the Kerala High Court, reported as' Sub-banyan v. State A.I.R. 1968 Ker 330. The relevant portion as given in head noto (G) is reproduced below:

If an inferior Court has imposed a sentence below the minimum prescribed by the law, it is the duty of the High Court to correct the error, Otherwise, it is not only that, an accused person would escape without adequate punishment, which would cause discrimination between persons found guilty of the same offence, but it would also load to create a feeling in the subordinate courts that they can with impunity disregard the statutory provision, and impose a punishment below the minimum prescribed for an offence.

Similarly the question of sentence also received the consideration of the Allahabad High Court in Ram Dass v. State, . The head-note (D) is quoted below:--

Those who indulge in adulteration of food are parasites to the society and if an offence is made out against them, there - is no reason why a punishment contemplated under the law may not be awarded to them.

In State v. Jwalaprasad, () Kotwal, C.J., of the Bombay High Court took a serious view of adulteration. It is observation as given in head-note is reproduced as under:-

The adulteration of milk is an antisocial offence which affects the health of the people and the offences cannot be treated lightly. Unless there are any special and adequate reasons which must be mentioned in the judgment the minimum sentence must be imposed, It is the . duty of the Magistrate not to give way to misplaced sentimentality but to apply the law.

The reasons stated by the Magistrate in the Bombay case for passing lesser sentence than the minimum, were held to be vague generalisation unsupported by record. There is also the observation of their Lordships of the Supreme Court in M. V. Joshi v. M. U. Shimpi . In that case his Lordship Subba Rao, J., speaking for the Court, laid down the following principle:

We agree with the High Court that the offence committed by the appellant is a serious one and that ordinarily the punishment should be deterrent. In most of the cases of this kind imprisonment would certainly be a suitable.sentence.

That was the case of adulteration of butter and in the certificate of the Public Analyst it was reported that the butter contained 18.3%. of foreign fats, 19.57% moisture and 64.67% milk fat. The accused was acquitted by the Judicial Magistrate for the reason that the butter prepared out of curd did not come within the mischief of the definition of the word butter in rule A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules, 1955. On appeal, the High Court held that the butter prepared from curd was covered by the definition of the word 'butter' given in the relevant rule. Consequently it set aside the order of acquittal and sentenced the accused to rigorous imprisonment for two months and to pay a fine of Rs. 2,50/-, As there was the conflict of views in the Bombay High Court itself as regards the question whether butter made from curd would be butter within the meaning of the rule and the Central Government also on April 16, 1960, amended the Rule A, 11.05 by inserting the word 'curd' in the definition of butter, in that circumstance, their Lordships of the Supreme Court imposed a sentence of Rs. 500/-, on the appellant. The Supreme Court case is clearly distinguishable from the facts of the present case. In the Supreme Court case the definition of the word 'butter' was not clear and the Central Government had to intervene by issuing the above notification and, therefore, the sentence was reduced. However, the Supreme Court has given a clear direction that the offence of adulteration is of a serious nature and that ordinarily the punishment should be deterrent. There is another case of the Supreme Court reported as Ibrahim Hazi v. Food Inspector, . In that case his Lordship Hegde, J., observed in paragraph 7 of the judgment as under:

Section 16(1) of the Prevention of Food Adulteration Act prescribes a minimum sentences of, six months imprisonment and a fine of rupees one thousand. It is true, as provided in proviso to that section that the Court may for adequate and special reasons to be mentioned in the judgment, impose an imprisonment for less than six months or a fine less than rupees one thousand. The trial Court has imposed the minimum sentence prescribed Under Section 16(1). The 'only reason given by the learned Sessions Judge for reducing that sentence is that the 1st accused Was not present when the sale was effected. This is not a relevant consideration Under Section 16(1). At any rate, it cannot be considered as "an adequate or special reason.

11. In the present case the fact that the accused is the first offender or that in some of the cases sentences imposed upon the accused. were light or that the offence was committed %Vi years ago is, in my opinion, not a relevant consideration under, .Sec. 16(1) of the Act.- Such a reason cannot be considered as adequate and special. It is the duty of the Court not to give weight to misplaced- sentimentality but to apply the law as it is. The adulteration of milk is an anti-social offence, which affects the health of the people. I am, therefore, not inclined to treat such an offence lightly, more specially when the accused added more than 52% of water, Such milk would cease to be milk but on the other' hand it would be water adulterated with milk.

12. In the result, I accept this' appeal and set aside the acquittal of the accused Motilal. I convict him Under Section 16, read with Section 7 of the Prevention of Food Adulteration Act and sentence him to. rigorous imprisonment for a period of six months and to pay a fine of rupees one thousand, in default to undergo further rigorous imprisonment for a period of six weeks. The District Magistrate, Udaipur, will take necessary steps for the arrest of the respondent Motilal and to send him to jail to undergo the sentence awarded to him.