- Bookmark
- Share
- CaseIQ
Emperor v. Nur Ahmad Accused.
Judgment Summary — Local Government v. Nur Ahmad (Prevention of Adulteration Act, 1912)
Factual and Procedural Background
This is an appeal by the Local Government against the acquittal of Nur Ahmad, who had been charged under Section 4 of the Prevention of Adulteration Act, 1912. The prosecution examined two witnesses (the Sanitary Inspector and the Health Officer) who deposed that the accused sold them ghee on a certain date for the purposes of analysis. Two samples were taken and one sample was left with the accused. A receipt (Ex. P-1), signed by the accused, recorded that the Sanitary Inspector purchased three chataks of ghee from the accused's shop, placed the ghee in three phials, sealed them in the accused's presence, took two for testing and left one with the accused.
At trial the accused did not deny his signature on Ex. P-1 but led evidence that he was not the licensee of the shop (the licensee being his brother, Azimuddin) and that he sold fruit in front of that shop and was not engaged in selling ghee. The trial Magistrate accepted the defence testimony that the accused did not sell ghee regularly and acquitted the accused, concluding the prosecution had produced no independent witness unconnected with the Municipal Board to prove sale by the accused. The Local Government appealed.
Legal Issues Presented
- Whether, for a conviction under Section 4 of the Prevention of Adulteration Act, 1912, it is necessary to prove that the accused is habitually or regularly engaged in selling the commodity (ghee), or whether proof of an actual sale of adulterated ghee by the accused on the occasion in question is sufficient.
- Whether the defences articulated in Section 6 (notably sub-sections (b) and (c)) must be established by the accused to avoid liability under Section 4, and whether the accused in this case raised or proved those defences.
- Whether an appellate court may interfere with an order of acquittal of a trial court based on the appellate court's review of the entire evidence, and the weight to be given to the trial judge's findings when credibility turns on demeanour.
- Whether the Local Government has the statutory right to appeal against an order of acquittal under Section 417 of the Criminal Procedure Code, and whether that right is limited by Section 414 of the Code.
Arguments of the Parties
Government Advocate (Appellant)
- Contended that it is not necessary to prove the accused was regularly engaged in selling ghee to secure a conviction under Section 4; it is sufficient to prove that the accused actually sold ghee which was below quality on the occasion in question.
- Relied on the plain terms of Section 4 of the Act and invoked Section 6 only to the extent that Section 6 provides specified defences which lie on the accused to prove.
- Argued the Local Government is entitled to appeal under Section 417 of the Criminal Procedure Code; Section 417 is unqualified and not restricted by Section 414.
Respondent / Defence Counsel
- Contended that Section 4 must be read with Section 6 and that the legislative intention was to penalize those habitually engaged in selling an adulterated commodity, implying that a plea that the accused did not sell the commodity should be significant.
- Argued that the trial Magistrate had come to a definite finding of fact (that the accused did not sell ghee) and that the appellate court should not interfere with that finding; relied on passages from the Full Bench judgment in Emperor v. Sheo Janak Pande regarding interference with findings of fact on appeal.
- Took a preliminary objection that no appeal lay against the order of acquittal, referring to Section 414 of the Criminal Procedure Code and arguing Section 417 must be read in light of Section 414.
Defence Evidence (Factual)
- The accused asserted he was not the licensee of the shop (the licensee being his brother Azimuddin) and that he was engaged in selling mangoes/fruit in front of the shop and had nothing to do with the ghee business.
- Evidence from the brother (Azimuddin) and other defence witnesses supported that the brother sold the ghee and that the accused was engaged in fruit-selling, not ghee-selling.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Sheo Janak Pande (Full Bench) | Reviewed the principles governing the appellate court's power to interfere with findings of fact; discussed the presumption of innocence and the weight to be given to a trial judge's assessment where credibility depends on demeanour. | The Court relied on this authority to explain that the appellate court must review the entire evidence and may interfere with an acquittal if the evidence does not justify it, while recognizing the trial judge's verdict should not be lightly disregarded when credibility depends on demeanour. |
| Privy Council decision (referred to by the Full Bench; unnamed in the opinion) | Stated that where the issue is straightforward and the only question is which set of witnesses is to be believed, the verdict of the trial judge should not be lightly disregarded. | The Court cited this principle but clarified it does not qualify the appellate court's power beyond recognizing that deference is appropriate when credibility depends on observations of witnesses in court. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise manner, applying the text of the statute and the record of evidence:
- Statutory interpretation: Section 4 of the Prevention of Adulteration Act was read literally. The Court observed that Section 4 contains no requirement that the offender be one who is habitually or regularly engaged in selling the particular commodity. Section 4 criminalizes selling an article of food "not of the nature, substance or quality" demanded by the purchaser and prescribes penalties.
- Role of Section 6: The Court explained that Section 6 defines what shall not be a defence in a prosecution under Section 4 and specifies defences (including sub-sections (b) and (c)) that lie on the accused. In particular, the accused may escape liability only if he proves to the satisfaction of the court that he had no reason to believe the commodity was not of the required quality or that he sold it in the same state as purchased.
- Assessment of the accused's defence: The accused's pleaded defence at trial was that he did not sell ghee at all and that he sold mangoes in front of the shop; he did not attempt to prove any of the Section 6 defences (ignorance of quality, or that he sold it in the same state as purchased). The Court emphasized the onus on the accused to prove those statutory defences.
- Evidential review: The appellate Court noted the trial Magistrate accepted defence evidence that the accused was not engaged in selling ghee. However, the Magistrate did not record a finding on the principal fact in issue — whether the accused in fact sold ghee to the Municipal Board officers. The appellate Court examined the prosecution evidence: the testimony of the two Municipal Board officers and the receipt Ex. P-1 signed by the accused, which acknowledged the sale. The accused did not deny his signature.
- Appellate powers and deference: The Court reviewed the authorities (Full Bench decision and Privy Council principle) concerning the appellate court's duty. It reiterated that an appellate court must review the entire evidence and may reverse an acquittal if convinced it is unjustified, while recognizing that trial findings on matters turning on demeanour deserve weight.
- Conclusion from evidence: Given the prosecution witnesses' testimony and the accused's signed receipt, and the absence of any attempt by the accused to invoke and prove the statutory defences in Section 6, the appellate Court found no doubt that the accused sold adulterated ghee to the Municipal Board officers and therefore held that conviction under Section 4 was warranted.
- On the preliminary jurisdictional point, the Court interpreted Section 417 of the Criminal Procedure Code as plainly conferring on the Local Government the power to direct an appeal against an order of acquittal by a lower court; the Court found no restriction arising from Section 414 and therefore held the Local Government's right to appeal was valid.
Holding and Implications
Core Ruling: The order of acquittal was set aside and the accused was convicted under Section 4 of the Prevention of Adulteration Act, 1912.
Consequences imposed by the Court:
- The accused was convicted under Section 4. The Court stated that the accused had previously been convicted on three separate occasions under Section 4, indicating habitual conduct.
- The Court imposed a fine of Rs. 500 and directed that in default of payment the accused be imprisoned for six months simple imprisonment.
Additional legal implications explained by the Court:
- The Court held that for liability under Section 4 it is sufficient that the accused actually sold an article below standard on the occasion in question; it is not necessary to show the accused was habitually a vendor of that commodity. The statutory defences listed in Section 6 remain available but are matters the accused must prove.
- The Court clarified that Section 417 of the Criminal Procedure Code grants the Local Government the unqualified power to direct an appeal against orders of acquittal by lower courts; Section 414 does not limit that right in the manner contended by the defence.
The opinion does not state that it is establishing a novel precedent beyond these applications of statutory provisions and the normal appellate principles; its conclusions apply directly to the parties (acquittal set aside, conviction and sentence imposed).
K.S
Result: Accused convicted. Fine of Rs. 500; six months' simple imprisonment in default.
Thom, J.:— This is an appeal by the Local Government against the acquittal of one Nur Ahmad who was charged under Action 4 of the Prevention of Adulteration Act of 1912.
2. In support of the charge the prosecution examined two witnesses, the sanitary Inspector and the Health Officer. Both these witnesses deposed that the accused sold them ghee on a certain date. The ghee was bought by the witnesses for the purposes of analysis. Two samples were taken by the witnesses and one sample was left with the accused. The accused also gave a receipt Ex. P-1, which is in the following terms:
“Pandit Tribhuwan Nath Zutshi, Sanitary Inspector, purchased three chataks of ghee from my shop this 5th day of July 1933. He put that ghee in three phials and sealed them in my presence. Out of those phials he took two with him for testing the ghee and gave one phial to me.”
3. This receipt is signed by the accused and he has not denied his signature. The accused in his defence led evidence to show that he was not the licensee of the shop in which the ghee was bought. The licensee is his brother Azimuddin. This fact is not disputed by the prosecution.
4. The accused further led evidence to prove that he is engaged in selling fruit in front of the shop in which the ghee was bought and that he has nothing to do with his brother's ghee business. One witness Haji Muzuffar Husain gave evidence to the effect that now the accused is engaged in fruit selling business. Another defence witness was the licensee of the shop, the brother of the accused Azimuddin. He deposed that the ghee which was sold to the Municipal Board officers was his property and that he is engaged in selling the ghee and that the accused his brother has nothing to do with it. Upon that evidence and the evidence of one or two other witnesses who testify to the accused being regularly engaged not in selling ghee, but in fruit business, the learned Magistrate of Saharanpur acquitted the accused. He concludes his judgment with these words:
“I hold that the prosecution evidence is not sufficient for a conviction of the accused in view of the preponderating evidence of the defence witnesses to the effect that the accused does not sell ghee and that the prosecution has examined no independent witness unconnected with the Municipal Board to prove it. I accept the defence testimony and finding the accused not guilty acquit him and dismiss the case against him,”
5. The learned Government Advocate has contended that it is not necessary in order to secure a conviction under Section 4 of the Prevention of Adulteration Act, to prove that the seller of the ghee is engaged regularly in the sale of that commodity. It is sufficient he contended to prove that the accused actually did sell ghee which was below quality. The terms of S. 4 of the Act, appear to us to be perfectly plain. S. 4(1) is in the following terms:
“Whoever sells to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance or quality of the article or drug demanded by such purchaser or sells or offers or exposes for sale or manufactures for sale any article of food or any drug which is not of the nature, substance or quality which it purports to be shall be, punished for the first-offence with fine which may extend to Rs. 100, and for a second or any subsequent offence with fine which may extend to Rs. 500.”
6. It will be observed that there is no reference in this section to the offender being one who is engaged regularly in selling ghee. Learned counsel for the respondent however has drawn our attention to the terms of S. 6 of the Act, and especially to sub-Ss. (b) and (c) thereof. S. 6 and sub-Ss. (b) and (c) are in the following terms:
“In any prosecution under S. 4 it shall be no defence to allege that the vendor was ignorant of the nature, substance or quality of the article or drug sold by him or that the purchaser having bought only for analysis was not prejudiced by the sale. Provided that the vendor shall not be deemed to have committed an offence under S. 4 if he proves to the satisfaction of the Court…. (b) that he had no reason to believe at the time when he sold it that the article or drug was not of such a nature, substance and quality as aforesaid and (c) that he sold it in the same state in which he purchased it.”
7. Learned counsel for the respondent has contended that S. 4 must be read along with S. 6 and reading the two sections together he has invited us to hold that the intention of the legislature was only, to penalize those people who are habitually engaged in the selling of an adulterated commodity. S. 6 however relates to the defence which one charged under S. 4 may advance. The onus is upon the accused person to prove to the satisfaction of the Court that he had no reason to believe that the drug or commodity was not up to the standard or quality and that he sold it in the same state in which he purchased it. Now, the defence of the accused in the present case is referred to by the learned Magistrate in the record of the summary trial at p. 6 of the record. Para. 8 is as follows:
“Plea of accused and his examination if any. Pleads not guilty. I was selling mangoes in front of the shop in question. I do not sell ghee.”
8. It will be obvious therefore that the accused made no attempt to prove that he was ignorant of the quality or standard of the ghee which he sold to the Municipal Board Officers. His defence in short was simply that he did not sell the ghee at all that is that the Municipal Board Officers gave false evidence when they stated that they bought ghee from him.
9. Now, the learned Magistrate has not dealt with this part of the case namely whether in fact ghee was sold to the Municipal Board Officers by the accused. He has decided the case in favour of the accused upon the defence evidence that the accused is not engaged in the ghee selling business. In our opinion for the reasons we have already given however this is not a defence to the charge under Section 4 of the Prevention of Adulteration Act. According to our interpretation of the Act if a person sells ghee which is found to be below standard then he is liable to a conviction under S. 4 of the Act, unless he successfully establishes the defences which are set out in S. 6 of the Act. The accused in the present Case has not attempted to prove any of the defences referred to in the latter section.
10. Learned counsel for the accused has contended that the Magistrate who tried the case has come to a definite finding of fact in favour of the accused and that we should not interfere with that finding. In support of his contention he has referred us to certain passage's in the Full Bench judgment in the case of Emperor v. Sheo Janak Pande(1). In that judgment the Bench reviewed the course of decision upon the question as to how far an appellate Court is entitled to interfere with the findings of fact of the Court of first instance. It appears that there had been prior to the Full Bench decision certain doubt-as to the powers of the appellate Court to interfere with an order of acquittal. So far as the provisions of the Criminal Procedure Code, are concerned the powers of the appellate Court are exactly the same in the case of an order of acquittal as in the case of an order of conviction. The duty of the appellate Court is to review the entire evidence to make up its mind upon that evidence and to reverse the decision of the lower Court if it be satisfied upon is consideration of the evidence that the decision is unjustified. The presumption of innocence with which the accused starts continues right through until he is held to be guilty by the final Court of appeal. If he is acquitted by the Court of first instance the presumption of innocence of course remains. The presumption of innocence is absolute. It is not strengthened by an acquittal nor weakened by a conviction in the trial Court.
11. The appellate Court approaches a consideration of the evidence uninfluenced by the decision of the trial Court which is evidence neither for or against the accused. It proceeds upon the principle that the accused is presumed to be innocent by the law and it is for the Crown to prove its case. The onus of proof is neither increased nor lightened by an order of conviction or acquittal. So far as there may be dicta in the Full Bench decision already referred to, to the effect that the presumption becomes stronger in the case of an order of acquittal we would observe that these dicta are entirely obiter. The law upon this matter was clearly stated in the Privy Council decision referred to by the Full Bench in which their Lordships of the Judicial Committee observed that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed the verdict of the Judge trying the case should not be lightly disregarded. There is no authority for any further qualification of the power of the appellate Court.
12. The appellate Court therefore is entitled and indeed bound to interfere with the order of the trial Judge if it is convinced upon a consideration of the evidence that order is not justified by the evidence. Their Lordships of the Privy Council say that the verdict of the Judge should not be lightly disregarded. We do not understand that it has ever been argued that in any case the verdict of the Judge may be lightly disregarded. It is true where the question in issue depends very largely upon the credibility of the witnesses in the trial Court then the opinion of the trial Judge who saw them in the witness-box and observed their demeanour as to which witnesses are reliable and which are not reliable is an opinion which must carry very great weight with the appellate Court. Beyond that however there is no restriction or qualification under the Criminal Procedure Code, of the power of the appellate Court to interfere with the verdict of the trial Judge be that verdict one of acquittal or of conviction.
13. In the present case however this point does not really arise because the learned trial Judge has accepted the evidence which he holds to be reliable upon the point as to whether the accused was engaged regularly in selling ghee. It may be that the Magistrate was entitled to accept that evidence. It may be that evidence does prove that the accused whatever he may have been in the past is not now a vendor of ghee. The learned Magistrate however has failed to record any decision upon the main issue in the case which in the absence of any defence under S. 6 of the Act, is whether in fact the accused sold ghee to the Municipal Board Officers. Now, in support of their allegation that ghee was so sold by the accused to the Municipal Board Officers the two officers have been adduced as witnesses and further there has been produced a receipt signed by the accused himself in which he acknowledged that ghee was sold by him to the Municipal Board Officers. In our opinion therefore there can be no doubt upon the evidence that the accused did sell adulterated ghee to the Municipal Board Officers and we so hold.
14. Learned counsel for the respondent took a preliminary objection to the appeal. He contended that no appeal lay against the order of acquittal under the Criminal Procedure Code. He referred to S. 414 of the Code, which enjoins that there shall be no appeal against an order of conviction in certain cases. He argued that S. 417 which confers upon the Local Government the right to appeal must be read with S. 414. S. 417 is in the following terms:
“The Local Government may direct the public prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court.”
15. The terms of this section are perfectly plain. They are unqualified by any restriction which may be derived from a consideration of the terms of S. 414. Had the Legislature intended to limit the right of the Local Government to appeal against an order of the lower appellate Court in a criminal case it would have said so specifically. No such qualification appears in the statute and we hold that there is none.
16. In the result we set aside the order of acquittal of the learned Magistrate and convict the accused under Section 4 of the Prevention of Adulteration Act, 1912. We have been informed by the learned Government Advocate that the accused has already been convicted on three separate occasions under S. 4 of the Act. It is clear that the accused has habitually engaged in the selling of adulterated ghee. It is true that the license for the selling of ghee in the present instance was not in the name of the accused, but in the name of his brother Azimuddin. But the accused according to his own statement and the evidence of several defence witnesses sells fruit at the door of the shop at which the ghee is sold. It appears to us that the arrangement whereby the license of the shop at which the ghee is sold and at the door of which the accused sells fruit is held by the brother of the accused is simply a dodge by which the accused is endeavouring to evade the law. Taking all the facts into consideration we impose a fine of Rs. 500, and sentence the accused in default of payment thereof to simple imprisonment for a period of six months.
K.S
17. Accused convicted.
Alert