Karnataka High Court
Food Inspector, Mangalore ... vs K.S. Raphael And Anr. on 10 October, 1980
Equivalent citations: 1981CRILJ1149
ORDER
1. In this revision, the Food Inspector, Mangalore City Municipality, has sought to challenge the leagality and the correctness of the order of sentence dated 18-1-1979 passed by the Sessions Judge, Dakshina Kannada at Mangalore in Cr.A. No. 87 of 78 on the file of his Court.
2. The respondent (hereinafter referred to as the accused) and his employer - M/s. Brothers Dairy Supplies by its Partner and Manager - Sri P. V. Chandran, were tried on the charge of the commission of the offence of selling the adulterated milk punishable under Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'), in C.C. No. 162 of 77 on the file of the II Addl. Chief Judicial Magistrate, mangalore Dakshina Kanada. By order dated 14-9-1978, the employer was acquitted, but the accused was found guilty on the said charge and convicted and sentenced thereon to suffer S.I. for three months and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo S.I. for one month, On appeal, by order dated 18-1-1979 in Cr.A. No. 87 of 78, the Sessions Judge, Dakshina Kannada at Mangalore, confirmed the said order of conviction passed on the accused. But, however, considering the fact that the accused was only at employee for supply of the milk and there was no evidence in the case to show that the accused had any knowledge that the milk that was in the can with him was adulterated and the fact that the employer had been acquitted, thought the case of the accused deserved to be dealt with leniently and accordingly relying upon the decision in Ramanjaneyulu v. K. M. Malloji Rao reported in 1978 Cri LJ 1047 (Kant) he set aside the order of imprisonment passed on the accused. He also reduced the fine and sentenced the accused to pay a fine of Rs. 500/- instead of Rs. 1,000/- and in default of payment of fine to undergo S.I. for one month. It is the correctness of this order of sentence passed by the Sessions Judge that is sought to be challenged in this revision.
3. It is contended that the offence in question having been committed on 10-5-1977, in view of the amended provisions of sub-section (1) of Section 16 of the Act which came into force with effect from 17-2-1976, the Court was left with no discretion in the matter of sentence of imprisonment, in that in case of such an offence of adulteration of the primary food, under sub Clause (1) of Clause (a) of Section 16, the Court cannot impose a sentence of imprisonment for a term less than three months, and fine not less than Rs. 500/-. The sentence passed by the Sessions Judge on the accused being, therefore, illegal, it deserved to be set aside and the sentence passed by the Chief Judicial Magistrate deserved to be restored.
4. There is no doubt the sentence passed by the Sessions Judge is illegal. Sub-section (1) of Section 16 of the Act (as amended) so far as it is relevant for this case and omitting the rest, reads as follows :
"(1) subject to the provisions of sub-section (i)(a), if any person - (a) whether by himself or by another person on his behalf ....... sells ........ any article of food
(i) which is adulterated within the meaning of sub-clause (1) of cl (i) of S. 2 ....... 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 the fine which shall not be less than one thousand rupees :
Provided, that ....... (i) if the offence is under sub Clause (i) of Clause (a) and is with respect to an article of food, being primary food which is adulterated ................ the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years and with fine which shall not be less than five hundred rupees."
Therefore, it is clear, a minimum sentence of three months, imprisonment has to be passed for the offence of selling adulterated food like milk, with which the accused was charged and the sentence passed by the Sessions Judge was against law and illegal.
5. If that was all that had to be said in the matter, the order of sentence passed by the Sessions Judge in Appeal deserved to be set aside and the one passed by trial Magistrate deserved to be restored. But, Smt. Anasuya learned counsel for the accused, contended :
(i) if the sentence passed on the accused was inadequate either because, the sentence contemplated under the penal provision was not passed or for any other reason, a remedy by way of appeal for enhancement of the sentence as provided under Section 377 being available to the State, the revision was not competent, in view of the provisions of S. 401(4) Cr.P.C. and
(ii) if the revision as brought by the petitioner was competent, the order of conviction itself being not justifiable on merits of the case for various reasons, the revision deserved to be dismissed and the accused deserved to be acquitted.
6. Various contentions were urged by Smt. Anasuya to show how the conviction of the accused was bad, both on account of insufficiency of evidence as also for non compliance of certain provisions of law, to which a reference will be made during the course of the judgment.
7. In order to appreciate the various contentions urged, it is necessary to state here the salient fact of the case :
M/s Brothers Dairy represented by its partner and Manager P. V. Chandran is a dairy supplying milk and milk products at Mangalore, having its office in the Central Market at Mangalore, The accused - K. S. Raphael is a Salesman working in the said firm. On 10-5-1977, at about 9.00 a.m. when the accused was proceeding in an Autoriksha bearing No. MYS 7298 with three Cans of toned milk, the petitioner - Food Inspector stopped the Autoriksha in front of Udupi Sri. Krishna Bhavan on Ganapathi High School Road at Mangalore, and having disclosed his identity, he purchased 700 ML of toned milk from the accused for analysis. He paid him Rs. 1.40 and obtained a receipt as per Ext. P. 3. He made three parts of the milk purchased by him, filled them separately in separate empty bottles and after adding 18 drops of formalin to the sample milk contained in three bottles, as preservative, he tightly corcked them, sealed them in the presence of Panchayatdors, who were called to witness the seizure. He also affixed a label bearing No. 440 with signature of the accused thereon on all the three bottles and served a notice - Ext. P. 4 in Form No. 6 on the accused as required under Section 11(1) of the Act and accordingly, prepared a Mahazar as per Ext. P. 5. The further case of the prosecution is on the same day the Food Inspector sent on the three bottles to Public Analyst, Bangalore, along with a memorandum in Form No. 7 (a copy of which is marked as Ext. P. 6) through Railway Parcel and he sent a copy of the Memorandum and sample seals to the Public Analyst separately by post. He took the remaining two bottles and copy of a memorandum in Form No. 7 sent to the Public Analyst, and handed them over to the Municipal Health Officer. On 15-6-1977. When the Food Inspector received the report as per Ext. P. 7, from the Public Analyst, Banglaore, to the effect that the Milk was adulterated, he placed all the papers pertaining to the case before the Municipal Commissioner and obtained his sanction as per Ext. P. 8, to prosecute the accused and his employer and lodged a complaint before the Court on 13-9-1977.
8. The learned Chief Judicial Magistrate, who took cognizance of the offence on the complaint, issued process against the two accused and on their appearance, he proceeded with the trial of the case. He recorded the evidence of the complainant examined as P.W. 1 questioned the accused, who pleaded totally ignorant of all the happenings and on the basis of the evidence of P.W. 1. the Food Inspector and other documents produced in support of the charge, including the report of the Analyst, the learned Magistrate found that there was no evidence worth the name as far as the employer was concerned and acquitted him. However, he found that the accused was guilty of the charge of the offence levelled against him and convicted and sentenced him. The Sessions Judge having confirmed the conviction with modification in the sentence as earlier stated the complainant-Food Inspector has preferred this revision.
9. Now, reverting back to the contentions advanced by Smt. Anasuya, learned counsel for the accused, no doubt, under sub-section (6) of Section 439 of the old Cr.P.C. a remedy by way of a revision was available. There is no such provision corresponding to sub-section (6) of Section 439 of the old Cr.P.C., in Section 401 of the new Cr.P.C. Section 377 has now been enacted giving a special remedy by way of appeal for enhancement of sentence, and such a remedy by way of appeal is available only to the State and not to the complainants. Section 377 reads as follows :
"Save as otherwise provided in sub-section (2), the State Govt. may in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the high Court against the sentence on the ground of its inadequacy.
If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Govt. may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
From a reading of the Section, it is clear that under sub-section (1), the State is empowered to direct the Public Prosecutor to present an appeal to the High Court on the ground of inadequacy of sentence under sub-section (3), when an appeal has been filed against the sentence on the ground of its inadequacy, a reasonable opportunity has also to be given to the accused for showing cause against the enhancement and while showing cause, it is also open to the accused to plead for his acquittal or for reduction of the sentence. Because of these provisions made in Section 377 giving a right of appeal to the State, for enhancement of the sentence, it appears, the Legislature thought it superfluous, to make a provision for enhancement of sentence in Section 401, analogous to Clause (6) of Section 439 of the old Cr.P.C. In other words, in any case of conviction on trial held by any Court other than High Court (whether the case is instituted on a Police Report or otherwise) it is the State alone which has the right of appeal against the sentence on the ground of inadequacy.
10. But the question however is whether a revision for enhancement of sentence was not at all competent. While Section 397 Cr.P.C. which confer revisional power says : "The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the Execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record"; Sub-section (1) of Section 401 Cr.P.C. says : "In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392".
Thus even though a special right of appeal for enhancement of sentence has been given to the State under Section 377 Cr.P.C. the High Court's power is examined. The correctness of the sentence in exercise of the revisional powers have not been taken away and that is clear in view of the provisions made in sub-section (1) of Section 401 Cr.P.C. which clearly says that in the case of any proceeding, the record of which has been called for by the High Court or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391. As such, all the powers that can be exercised by the High Court on appeal for enhancement, can be exercised in a revision. Clause (c) of Section 386 Cr.P.C. says : in an appeal for enhancement of sentence - (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tied by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same. Therefore, the fact that a remedy by way of appeal is given to the State is no reason to hold that the complainant or person interested is also precluded from coming in revision to the High Court. Since the revisional powers can be exercised by the High Court through howsoever the matter may be brought to the notice of the High Court, a revision by the complainant in a case instituted on a complaint is competent, for no such remedy by way of appeal has been given to the complainant. Therefore, since the case, out of which the revision has been brought, was instituted on the complaint of the petitioner it was competent for him to invoke the revisional jurisdiction and the High Court has also power to enhance the sentence where the sentence passed by the Court trying the case is inadequate, either because the sentence is too lenient or the sentence passed is illegal not being in accordance with law.
11. However, the other contention of Smt. Anasuya that even if the present revision brought by the complainant was competent, not only an opportunity had to be given to the accused of being heard against the enhancement, but the accused is also entitled to plead for his acquittal, seems to be well founded. Though, Mr. B. V. Acharya, learned counsel for the petitioner, sought to urge that no such right was available to the accused, but, it appears, Smt. Anasuya stands on a firm ground. Firstly, because, as noticed above, where the State comes in appeal for enhancement as provided under Section 377, as provided under sub-section (3) of Section 377, a reasonable opportunity has not only to be given to the accused for showing the cause against the enhancement, but while showing cause the accused is also entitled to plead for his acquittal. The High Court exercising the revisional powers has all the powers of an Appellate Court. Since, the High Court, in an appeal, for enhancement of sentence has got the powers to reverse the finding and sentence as also to acquit or discharge the accused, in view of the provisions contained in sub-clause (i) of Clause (c) of Section 386 Cr.P.C., it is competent for the High Court to go into the question of legality of the conviction itself. That is in sum and substance, the effect of reading the provisions of Sections 377, 386 and 401. Secondly, because when the complainant or private person aggrieved comes in revision against the sentence on the ground of inadequacy or illegality, the revision by a complainant cannot stand on higher footing than the appeal. In a case where the State does not file an appeal against the sentence and the complainant comes in revision, to deny such an opportunity to the accused is to place the revision for enhancement by the complainant or a private person on higher footing than the appeal by the State. That could never have been the intention of the Legislature. Therefore, while, it is competent for the High Court in exercise of the revisional powers, to go into the question of legality and correctness of the findings on which the conviction itself is based, the accused is also entitled to plead for his acquittal. That is because, as observed by his Lordship Das, J., in U. J. S. Chopra v. State of Bombay ; that is a valuable right on the subject which is designed to be a safeguard against the State or other interested persons making frivolous revision application for enhancement of sentence. The State or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted. It is the price or quid pro quo which the State or other interested person must be prepared to pay for the right or privilege of making an application for enhancement of sentence. Hence before enhancing the sentence, it becomes necessary to see whether the order of conviction itself is legal and proper. This takes us to the consideration of the other contentions advanced by Smt. Anasuya, on the merits of the case questioning the correctness of the conviction of the accused.
12. As already observed above, the prosecution version of the case is on 10-5-1977 at about 9.00 a.m. when the accused was proceeding in an Autoriksha with three cans of toned milk, the petitioner-Food Inspector stopped the Autoriksha and purchased 700 ml. of toned milk from the accused specifically for analysis, he paid the price thereof against a receipt Ext. P. 3 and the Food Inspector thereafter divided the milk so purchased in three parts and seized them separately in three bottles and packed and sealed them after adding 18 drops of formalin as preservative. The bottles were affixed with a label bearing No. 440 with signature of the accused thereon. At the trial, the accused denied all these allegations.
13. Smt. Anasuya, learned counsel for the accused argued (i) the accused was admittedly a servant of the firm M/s. Brothers Dairy Supplies, therefore, he cannot be held to be guilty of selling the milk said to be adulterated under Section 7 read with Section 16 of the Act; (ii) though according to prosecution, the Food Inspector stopped the Autoriksha and purchased the milk from the accused in front of Udipi Sri Krishna Bhavan on Ganapathi High School Road, but the receipt Ext. P. 3 alleged to have been passed by the accused bears the seal of the firm, no explanation whatsoever has been offered as to how the seal of the firm came to be affixed on the receipt Ext. P. 3 alleged to have been passed by the accused on the road-side and it was therefore not safe to place reliance on the solitary testimony of P.W. 1 Food Inspector regarding the purchase of the milk in question from the accused; and (iii) while sub-rule (1) of R. 7 of the Food Adulteration Rules, says :
"On receipt of a package containing a sample for analysis from a Food Inspector or any other 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;
Rule 18 says :
"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."
But there was no proof that the copy of the memorandum and specimen impression of the seal used to seal the packet was sent to the Public Analyst separately by a registered post; there is no proof also that on receipt of the package containing sample sent for analysis from the Food Inspector, the Public Analyst or any other person authorised by him had in fact compared the seals on the container and outer cover with the specimen impression received separately and noted the condition of the seals, therefore, there being no compliance of the Rr. 7 and 18, which were mandatory in nature the conviction of the accused was bed.
14. It appears, so far as the first contention is concerned, there is no force at all that the servant selling adulterated food cannot be convicted. No doubt while Section 7 of the Act which prohibited the sale of adulterated food, says that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food, the penal Section 16 also says if any person whether by himself or by any other person on his behalf sells or distributes any articles of food which are adulterated, 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 etc. It is the person, who sells the adulterated food who is liable to be punished. When the servant sells such adulterated food, he does so on behalf of his Master, and in doing so, he merely delivers the article of food on behalf of his Master who is for all purposed the seller. In re S. Moses a similar question came for decision and it was held as follows :
"It was beyond question that the master is liable for selling goods either by himself or through his servant or any agent, for that matter, but when the servant sells the goods on behalf of his master or any company, limited or otherwise, he does sell the goods and that act of selling done by him, he delivers the goods and receives the price, but he does so on behalf of his master and after referring to a series of English decisions and drawing distinction between the English and Indian Statute, observed; "the clear language of Section 7 is to the effect that a person should himself sell or sell through any other person on his behalf, in order to be brought within the mischief of that section, and the provision cannot be extended to include what has not been actually, intended by the Legislature, viz., that a person who sells on behalf of another should also be made liable to the penalties prescribed. Some meaning or significance has to be attached to the word 'himself' and to the words 'by any other person on his behalf' occurring in the Indian Statute. They cannot by any means be ignored when the true intention of the legislature is to be found out."
But in Sarjoo Prasad v. State of Uttar Pradesh , where the accused was an employee of one Thakur Din, who carried on business as a Vendor of edible oils and provisions, and a Food Inspector purchased from him (employee) a sample of mustard oil which was found to be adulterated with linseed oil and both Thakur Din and his employee were prosecuted, convicted and sentenced and the conviction and sentence was confirmed by the Sessions Judge, after referring to the above decision of the Madras High Court. The Supreme Court observed that the view taken in the said decision of the Madras High Court was erroneous. The Supreme Court also further held :
"The intention of the Legislature is plain. Every person, be he an employer or an agent is prohibited from selling adulterated food and infringement of the prohibition is by Section 16 penalised. By Section 19 in a prosecution for an offence pertaining to the sale of any adulterated article of food, it is no defence merely to allege that the vendor was ignorant of the nature of the substance or quality of the food sold by him. Such a defence can only succeed if the person charged with selling adulterated food proves that the article of food was purchased as of the same in nature, substance and quality as that demanded by the prescribed form, that he had no reasons to believe at the time when he sold it that the food was not of such nature, substance, and quality and that he sold it in the same state as he purchased it, and he submits to the food inspector or the local authority a copy of the warranty with a written notice that he intends to rely upon it and specifies the name and address of the person from whom he received it. Prohibition of sale of adulterated food is evidently impose in the larger interest of maintenance of public health". This decision of the Supreme Court is binding on me. Therefore, it is not possible to accept the contention of Smt. Anasuya that a servant cannot be convicted under Section 7 read with Section 16 of the Act.
15. So far as the second contention is concerned, there is no rule of law that in order to prove a particular fact, a particular number of witnesses should be examined. In fact Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact; obviously because the evidence is to be weighed and not counted. The Supreme Court has also laid down in Prem Ballab v. State (Delhi Admn.) that there is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. Nevertheless, the Food Inspector, in a sense has to be regarded as an interested witness. Therefore, bearing this as caution as a rule of prudence and not as a rule of law the evidence of the Food Inspector has to be accepted and acted upon or not according to as the facts are established in the case.
16. Here in the case, there is no doubt, the prosecution has failed to offer any explanation as to how the seal of the firm also came to be affixed on Ext. P. 3 which according to the prosecution was allegedly passed by the accused when the sample was seized, not at the place of business of the firm, but on the road in front of the hotel and this clearly raises a doubt in mind if what the Food Inspector stated was true and in fact the sample was taken when the accused was allegedly going with three cans of toned milk in the Autoriksha. If that was all then still there was scope to argue that if an explanation was sought that was also probably available and therefore that alone could not be made a basis for reversing the finding of conviction recorded by the trial Magistrate. But, this circumstance coupled with the fact that there has been no compliance of Rr. 7 and 18 in the case, the conviction could not be sustained. The Rr. 7 and 18 are mandatory in nature. Not only copy of the memorandum and 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, but the seals on the container and outer cover have to be compared and their condition noted, Admittedly, the Food Inspector did not deliver the copy of the memorandum of specimen of seal to the public analyst or to any person authorised by him. He claims to have sent the same by post. But no proof has been adduced to show that the same had been so sent to the public analyst separately by a registered post. Neither the Food Inspector takes oath that he sent the same by registered post, not any proof has been adduced to show that the same was sent by a registered post. No proof has also been adduced to show that the seals were compared and their condition noted. The compliance of Rr. 7 and 18 is not merely an idle formality but it is intended to provide a safeguard against intermeddling and tampering with the sample sent for analysis.
17. It was argued, as provided under Section 13(1) of the Act and sub-rule (3) of R. 7 of the Food Adulteration Rules, the Public Analyst had furnished a report in Form No. 3 regarding the result of the analysis, certifying to the effect that the sample sent for analysis was properly sealed and packed and the seals were intact and unbroken, therefore, there was no scope for contending that the sample sent was in any way tampered with. But, it appears, there is not much substance in this contention. Section 13(1) and sub-rule (3) of R. 7 provided for furnishing a report regarding the result of analysis and as such the report Ext. P. 7 was admissible only to prove the result of analysis and not the fact of comparison of the seals on the container and the outer cover with the specimen received separately and their condition. Therefore, like any other fact, it was obligatory on the prosecution to prove that the seals on the container and the outer cover were compared with specimen impression separately received and condition of the seals thereon was noted. What has been stated in Ext. P. 7 in this behalf cannot be read as substantive evidence. As stated above, both Rules 7 and 18 are mandatory in nature and compliance thereof had to be established, if there is no compliance of the Rules 7 and 18 that vitiates conviction.
18. This Court in Mary Lazrado v. State of Mysore, reported in (1965) 2 Mys. LJ 107 : (1966 Cri 1036), following the decision in State of Gujarat v. Shanthaben held as follows :
"Non-compliance of Rr. 7 and 18 which prescribe the procedure to be followed in packing, sealing and dispatching of the sample by the Inspector affect the evidentiary value of the report made by the public analyst so as to vitiate the conviction under Section 7 read with Section 16 of the Act."
The same view has again been reiterated by his Court in Belgaum Borough Municipality v. Shridhar Shankar Kundri, reported in (1967) 2 Mys LJ 299 : (1968 Cri LJ 952). It is held :
"Rules 7 and 18 of the Prevention of Food Adulteration Rules are mandatory in nature. Thus, where there is no evidence that the Food Inspector sent a copy of the memorandum and a specimen impression of the seal used to seal the packet to the Public Analyst separately by post, there is non-compliance of the Rules which vitiates the evidentiary value of the report of the Public Analyst."
19. For the abovesaid reasons the order of conviction and sentence passed on the accused cannot be sustained. In the result, the revision is dismissed. The order of conviction and sentence passed on the accused is set aside. The accused is acquitted of the charged of the offence levelled against him.
20. Revision dismissed.