1. The State of Assam appeals against the respondents' acquittal under Section 16/17 read with Section 7 of the Prevention of Food Adulteration Act, hereinafter called the Act.
2. On 27.12.77 the Area Food Inspector, P.W.I visited M/s. Ram Narayan Basudeo of T.R.P Road, Fancybazar; served notice upon its ‘Munim’, Ram Kumar Sarma; purchased sample of Arhar Dal following the procedure prescribed under the Act and its Rules; sent sample to the public Analyst who reported that the sample did not conform to the standard as it was old, insect infested and live insect were also seen; and obtaining sanction according to law prosecuted the three respondents and the Munim vendor, Ram Kumar Sarma, who, however died during the pendency of the trial. At the trial charged under Section 16/17 read with Section 7 of the Act, the accused persons pleaded not guilty. The prosecution examined two witnesses, while the defence examined none. The Area Food Inspector, as P.W.I deposed that all legal formalities in collecting, packing and sending sample were fully complied with. He was amply corroborated by P.W 2, Dimbes-war Narah, office peon of the Chief Medical Officer, Kamrup. In their statements under Section 313 Cr. P.C respondent Keshab Deo Bawri admitted that he was a partner of the firm but-said that Ram Kumar Sarma saw this work and also managed the shop. Respondent Basudeo Bawri admitted that he was a partner but said that Ram Kumar Sarma was Manager of the firm which was run by the Treasurer. The trial Court held that there was failure on the part of P.W 1 to comply with the mandatory rules such as Rule 16(d) and Rule 17(a) of prevention of Food Adulteration Rules and that there was no evidence to show that the article under reference was unfit for human consumption and accordingly acquitted the respondents, against which the State appeals.
3. Mr. B.C Das, the learned Public Prosecutor, submits. inter alia, that in view of the deposition of P.W.I and the report of the Public Analyst there was no violation of Rules 16 (d) and 17(a) of the Prevention of Food Adulteration Rules, hereinafter called ‘the Rules’; that the trial court erred in holding that there was no evidence to show that the article was unfit for human consumption; that the respondents were liable as the-firm and its partners respectively under Section 16/17 read with Section 7 of the Act; and hence the acquittal is liable to beset aside.
4. Mr. S.A Choudhury, the learned counsel appearing as Amicus Curiae demurs submitting that there was clear violation of Rules 16(d) and 17 (a) of the Rules for which the respondents were rightly acquitted; and that being the position it was not necessary to see whether the respondents were liable as the firm and its partners or that the article of food was or was-not adulterated; and that this appeal against acquittal is liable to be dismissed.
5. The question of violation of Rule 16(d) of the Rules may now be examined. Rule 16 deals with manner of packing and sealing the samples. All samples of food sent for analysis shall be packed, fastened and sealed in the manner provided in the Rule. Sub-rule (d) thereof reads:
“The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall be then fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.”
6. In the case in hand P.W 1 deposed: “After that on. dividing the dal in three equal parts I put them in three dry clean polythin bags and on closing the mouths before the wit ness put them in three dry and clean cans. On closing the mouths of the cans in a good way I put lebels on them. On those lebels, I took signatures of accused Ramkumar and the witnesses, I also put my signature. I enclosed wrapping paper on each can and above that I enclosed paper slip given by local Health Authority. On that I tied with thread and on that I put seal. I sealed each can in this way and obtained signatures of both the two witnesses. Both the witnesses put their signatures on paper slip. Accused Ramkumar also put his signature on paper slip and wrapping paper. These signatures were put before me. Paper slip contained signature of local Health Authority and Code number. Thereafter I took the sealed cans. Out of them I sent one can to Public Analyst with memorandum for examination through peon.”
7. In cross-examination he answered that after putting in the sample the can was enclosed with a thick paper and both sides of the can were pasted. After enclosing paper seal the sample had to be tied with thread lengthwise and breadthwise but he tied the sample Mat. Ext. (1) with thread lengthwise but not breadthwise. He denied the suggestion that he did not enclose thick paper with paste on both sides of the can. However, it was noted in the deposition that when opened it was seen that there was no trace of pasting of thick paper on two sides of the can.
8. P.W 2 did not say anything about the packing and sealing of the sample. The report of the Public Analyst, Ext. 4, shows that he received the sample from P.W.I on 21.9.77 vide Memo No. 482 of the same date through messenger, properly sealed and fastened and that he found the seal intact and unbroken. The seal fixed on the container and the other cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.
9. On the basis of the above evidence on record can it be said that Rule 16(d) way violated? Admittedly other steps were taken but only the twine was not tied breadthwise. The Public Analyst found the sample intact and had not recorded any non-observance of the packing and sealing procedure. Mr. Das submits that there was substantial compliance with the sub-rule which, according to him, was not mandatory but only directory. In Dalchand v. Municipal Corporation, 1982 (II) F.A.C 29 : 1983 Cri. L.J 448 while considering whether Rule 9(j) of the Rules was mandatory or directory the Supreme Court observed that there are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. Where the design of the statute is the avoidance of prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is-necessary to invalidate the act complained of Quite often many rules, though couched in imperative language and no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit and their negligence cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. Tested by the aforesaid test sub-rule (d) of Rule 16 has to be held to be directory and not mandatory. The purpose of the rule is to enable the Public Analyst to receive the sample in the same form and state as it was collected from the vendor by preventing any deterioration, substitution, leakage, evaporation etc. on transit. If the Public Analyst received the sample intact minor or technical breach of the sub-rule need not be fatal, otherwise public mischief will escape punishment on purely technical grounds. This view was taken in State of Himachal Pradesh v. Thakur Das, 1983 (II) F.A.C 1. Where the purpose has been achieved and no prejudice is caused to the accused and there is no failure of justice, breach of this sub rule will not lead to an acquittal. It is open to the accused to challenge the adequacy of packing and show that the packing was defective resulting in decomposition, deterioration, destruction, substitution or evaporation of the sample, but if nothing of this sort is shown the report of the Public Analyst cannot be rejected. It was so held inre K. Chandran, AIR 1965 Madras 168 : 1966 Cri. L.J 445.
10. Under Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case; and under Illustration (a) thereof that judicial and official acts have been regularly performed. In Kassim Kunjo, 1976 (11) F.A.C 68 the Supreme Court approved the view that it must be presumed that the Public Analyst acted in accordance with the Rules and must have compared the specimen impression received by him with the seal on the container. The name illustration has been. applied as regards the compliance with Rule 16(d). In K.B Patel v. State of Gujarat, 1982 Crl. L.J 754 the illustration was applied to Rule 16(d). In that case there was nothing, in evidence that the knots of the twine were covered by means of sealing wax but other steps were taken in accordance with the sub-rule. It was held that the evidence was sufficient to raise a presumption that all the requirements of Rule 16(d) were complied with. In Food Inspector, Municipal Corporation, Baroda v. Modanlal Romlal, 1983 Crl. L.J 337 : (1983) 1 SCC 135 : AIR 1983 SC 176 it was held that the Supreme Court does not look upon with equanimity on offences under the Act because these offences have the deleterious effect playing havoc with the health and wellbeing of a large segment of the society. In Food Inspector, Tellichera Municipality v. P. Abdulla Haji, 1986 Crl. L.J 1 where the Food Inspector did not specifically speak of compliance of Rule 16(a) to (d) and 17 (a) and (b) and 18 but stated about their general compliance which was supported by the report of the Public Analyst that he had received the sample properly sealed and fastened and the seal was intact and unbroken and there was no suspicious circumstances with regard to the performance of the official act in compliance with the above rules and the accused was silent about their compliance before the trial court, the presumption under Section 114(e) of the Evidence Act was applied and the court was held entitled to presume that the acts were regularly performed. The court relied on 1983 Crl. I.J (NOC) 224, 1980 Crl. L.J 527 (Kerala), and 1984 Crl. L.J 567 (Kerala). A similar view was taken by this Court in State Of Assam… v. Puranmal Agarwalla…., 1985 Cri. L.J 46 in respect of Rule 14 of the Rules.
11. Applying the above principles to the facts of the instant case the Food Inspector having deposed about full compliance of Rule 16(d) except that he did not tie the sample with twine breadthwise and did only lengthwise, and the Public Analyst having reported to have received the sample and its seal intact the presumption under Sec. 114(e) of the Evidence Act arises and no prejudice having been caused to the accused he cannot be acquitted on the ground of non-compliance of this-sub-rule.
12. Rule 17 of the Rules provides for the manner of de spatching containers of sample. Under clause (a) the sealed con tainer of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means. The sample was collected on 20.9.77 The memorandum to the Public Analyst, Ext 3 was dated 21.1.77 and the public Analyst received it through messenger on the same date. There was, therefore, no violation of lause (a) of Rule 17. There having been no violation of Rules 16(d) and 17(a) as discussed above the acquittal of the respondent on that gro und must be set aside
13. Mr. Choudbury submits that the sample was not reported to have been adulterated and the Public Analyst did not say that it was otherwise unfit for human consumption. The submi ssion is not tenable. It is true that the Public Analyst said that the sample was very, old, insect infested pulses and live in sect seen and it did not conform to the standard. The trial court did not give any clear finding on this point. As defined in section 2(i)(a) of the Act, an article of food shall be deemed to be adulterated if the article consists wholly or in part of any filthy, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption. Thus if the sample is insect infested it is adulte rated and if it is otherwise unfit for human consumption then also it is adulterated. It is not necessary that the sample which is insect infested should also be otherwise unfit for human consumption. Under clause (m) of the same section if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health; provided that where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either cases, solely due to natural causes and beyond the control of human agency then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. There is, therefore no doubt that the sample was adulterated as it did not conform to the standard. It contained 6.55% insect damaged grain and was insect infested and live insects were also seen. The sample must, therefore be held to have been adulterated.
14. The question of liability of the firm and its partners-may now be examined. Section 4 of the Indian Partnership Act, 1932 defines partnership as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually ‘partners’ and collectively ‘a firm’. In order to constitute a partnership the actual existence of a business carried on by partners with an agreement to share profits of such business is essential. Each of the partners is an accredited agent of the firm. Each of the partners is an agent, and at the same time a principal. Agent in the sense that be can bind the other partners by his acts within the scope of the partnership business and he is a principal to the extent that he is bound by the acts of other partners. A firm is-not a legal entity but only consists of individual partners for the time being, its essential charactcristic being that each partner is a representative of other partners. A partnership firm, is only a compendious name for certain persons who carry on business. A joint stock company, however, is a separate juristic entity distinct from share-holders. The position of share holders in a company is not analogous with that of partners of a firm. As was held in Dulichand Laxminarayan v. Commissioner of Income-tax, Nagpur, AIR 1956 SC 354, a firm is not a ‘person’ and as such is not entitled to enter into a partnership with another firm or Hindu Undivided family or individual.
15. The vicarious criminal liability of a partner on account of the business of the firm arises out of his accredited agency of the firm. A partnership firm, by definition is carried on either by all the partners or by one or more of the partners for all of them. In Ramcdandra v. Emperor, AIR 1939 Bom 129, it was held that merely because he is a partner in a firm, he is not liable for all the criminal acts of the managing partner unless he was aware of them or in some way has connived at them. Similarly in Bhikchand v. Emperor, AIR 1934 Sindh 22, it was held that a working partner contributing no capital is a servant or clerk and can be held guilty of criminal misappropriation or breach of trust. A sleeping partner in usually one who invests capital in the partnership but does not actively carry on the business of the partnership. However, a transaction relationship exists between those who carry on the business and those who share its profits. If the offence is committed purely individually by a partner, then this relationship will not be present. In Mannindra Mohan v. Srish Chandra, AIR 1932 Cal. 464, it has been held that subsistence of partnership between the parties is no answer in a properly proved case, to a charge of falsification of accounts against a partner in charge of books.
16. For the purpose of Section 17 of the Act, a company includes a firm or an association of individuals. While applying the company analogy to a firm, the legal position will be that where an offence under the Act has been committed by a firm, sunder sub section (1)(a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of and responsible to, the firm for the conduct of the business of the firm; or (ii) where no person has been so nominated, every person who, at the time the offence was committed, was in charge of, and was responsible to, the firm for the conduct of the business of the firm; and (b) the firm 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 the sub-section shall render any such person liable to any punishment provided in the Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) Any firm may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and all such steps as may be necessary or expedient to prevent the commission by the firm of any offence under the Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Under sub-section (4) notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a firm 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 firm not being a person nominated under sub-section (2) 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. It should be noted that the firm being by definition carried on by all the partners or by any of them acting for all the partners unless it is shown that any particular partner was not carrying on the business at the relevant time he cannot escape liability. He may, of course, be absolved under sub-section (4). Even under sub section (4) the position of a partner is not exactly the same as that of a director or manager of a company because of his peculiar position in the firm. In the State of Maharashtra v. Pirumal Khushaldas, 1976 Cri. L.J 485 (Bom) it was held that the prosecution must prove before con-victing any partners of a firm that they were incharge of the business and were responsible in the conduct of the business which was carried on at the shop. However, in a partnership every partner in charge and responsible, becomes the principal with reference to the paid manager or the partner who is bodily present and does the act. Therefore, in order that section 17 of the Act should be inapplicable, a partner has either to establish that he had dissociated himself from the day-to-day business or that under the proviso to Section 17(1), being interested in business, he had taken all reasonable precautions against the commission of the offence and it had been commixed without his knowledge. The provisions of Section 17(1) and the proviso appended thereto arc mutually exclusive. An element of social goal of preventing adulteration of food under-lies the provision.
17. In J.L Roy v. Amrit Lal Dey, 1980 Cri. LJ. 24, it was held that Section 17 of the Act clearly shows that a partner of a firm who may not actually sell, will be vicariously liable for punishment. The burden would be upon him under the proviso to S. 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 goods. In Binoy Krishna Mukher-Jee v. State of Manipur, 1980 Cri. L. J. 273, giving the general guidelines for prosecution against firms or companies, this court laid down that the complaint petition must state as to how the company and each of the persons prosecuted is liable for the offence committed by the company as provided in S. 17 of the Act. The company and each of the person has to be separately charged.
18. In Smt. Manibai v. State of Maharashtra, (1974) 3 SCC 760 : AIR 1974 SC 434, where there was nothing to show that the business carried on the shop in question was that of a firm and that Manibai was a partner and the sample was purchased from Pranjivan and not from Manibai, their lordships observed that even if it may be assumed that the business was owned by a firm or an association of individuals, and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under Section 17(1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop. There was no evidence to that effect on the record and in the absence of such evidence, no criminal liability for the sale of coconut oil by Pranjivan could be fastened on Manibai under the provisions of the Act. It may be observed that where the evidence shows that the firm committed the offence, each of the partners will by definition be persons carrying on that business unless one could show that by arrangement in the partnership he was not in charge of management of the firm. In Municipal' Corporation of Delhi v. Ram Kishen Rohtagi, (1983) 1 SCC 1 : AIR 1983 SC 67 : 1983 Cri. L.J 159, where the complaint was against the Company, its Directors and Manager and there was not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn oy the complainant that there was any act committed by the Directors from which a reasonable inference could be drawn that they could also be vicariously liable. Under those circumstances, it could be said that no case against the Directors had been made out ex facie on the allegations made in the complaint and that the proceedings against them were rightly quashed by the High Court. However, the Manager of the Company who was directly incharge of its affairs, could not fall in the same category as the Directors. It could not be reasonably argued that no case was made out against the Manager because from the very nature of his duties, it was manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. From the very nature of his duties it could be safely held that the Manager would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. Hence the order of the High Court quashing the proceedings against the Manager was set aside by the Supreme Court. It may be observed that, subject to agree meat between the partners, a partner's position is not exactly like that of a director or manager, as he is supposed to carry the business of the firm by definition. Law has made the partner vicariously liable for the offence committed by the firm. In State of Assam v. Vinode Kumar Agarwalla, (1985) 2 G.L.R 332 it was held that positive evidence was necesary to connect the company or partnership along with the partners with involvement of the offence for the purpose of conclusion that the partners in charge of the firm were responsible to the firm for the conduct of the business at the time of commission of the offence. It may, however, be reasonably added that in case of partners, unless otherwise agreed between themselves, a partner's carrying on of the business is envisaged in law. Unless this position is reckoned, all partners of a firm shall be absolved by their mere saying that they were not in charge of management of the business. Carrying on of business of a firm by someone other than partners is not countenanced by law. In Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala, (1983) 1 SCC 9 : AIR 1988 SC 153 : 1983 Cri. L.J 172, where the complaint gave complete details of role played by the Directors and the extent of their liability, it was held that the complaint against the accused persons could not be said to be vague and not implicating the Directors and that the High Court, therefore, was not justified in exercising its discretion under Section 482 Cr. P.C to quash the proceedings against the accused.
19. In the instant case Ram Kumar was described as a ‘Munim’ and ‘Treasurer’. Ext 5 is the letter written by him to the Food Inspector informing that Shri Basudeo Bawri and Shri Keshabdeo Bawri were the partners of the firm of M/s. Ram Narayan Basudeo. He did not say that they were not in charge of the management. So the partners must be taken to have been carrying on the business. Ram Kumar was only an employee of the firm and could not be in charge of carrying on the business of the firm. The firm itself did not produce any evidence to show that it was not managed by the partners. There as no evidence of sub-section (1) of Section 17 of the Act having been complied with either by the firm or by the two partner respondents. Therefore, nobody can he said to be persons responsible for the firm under that sub-section. Hence the liability was on the two partners who were accredited agents of the firm and were by definition carrying on the business of the firm. Each partner was, therefore, required to prove that he was not carrying on the business on behalf of all the partners and the-offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. Neither of the partners stated that they were not in charge of the management of the firm or that they were not aware of the offence or that they took reasonable measures for preventing: such offence. Simply saying that Ram Kumar, who was an employee as munim or treasurer managed the firm would not be enough. I respectfully agree with what was held in Ramchand Ram v. Gaya Municipality, AIR 1945 Pat 264, that in the case of a firm, every partner is an agent of the other partners-and therefore if an offence is committed by the firm every part???er is liable to prosecution. Section 17(2) of the Act makes the absent partners vicariously guilty if 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 the other partner. In the present case both the partners would be liable unless each one proved that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. The acquittal of the firm and its partners must, therefore, be, and is hereby, set aside and they are convicted under Sections 16/17 read with Section 7 of the Act. As regards the sentence, such deleterious offences merit deterrent punishment so as to serve as warning to others not to repeat it. It must be shown that such offences are not profitable and hence not to be repeated. That is the reason why minimum punishments have been wisely prescribed by the parliament. However, more than eight years have elapsed since the crime was committed and nearly five years have elapsed since they were acquitted. The offence is with respect to an article of food which was insect-infested. Under these circumstances for the ends of justice and crime prevention each of the respondents, namely, M/s. Ram Narayan Basudeo, Basudeo Bawri and Keshabdeo Bawri, is sentenced to pay a fine of Rs. 1000/— (Rupees one thousand) only, in default to undergo rigorous imprisonment for three months each. They shall appear before the trial Court and pay the fines within one month from to-day.
20. Appeal allowed.