Kerala High Court
The Venjaramoodu Ksheera Vyavasaya vs Unknown on 31 October, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934
Crl.Rev.Pet.No. 13 of 2006 ( )
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CRA.410/1998 of II ADDL.DISTRICT COURT, TRIVANDRUM
ST.570/1995 of J.M.F.C.-II,ATTINGAL
REVISION PETITIONER(S)/APPELLANTS/ACCUSED::
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1. THE VENJARAMOODU KSHEERA VYAVASAYA
CO-OPERATIVE SOCIETY T.6 (D),
VENJARAMOODU REPRESENTED BY ITS
SECRETARY SRI. A. BASHIR.
2. A. BASHIR, S/O. ABDUL RAHUMAN,
SECRETARY, PALLIVILA VEED, VENJARAMOODU.
BY ADVS.SRI.T.H.ABDUL AZEEZ
SRI.T.B.HOOD
COMPLAINANT(S)/COMPLAINANT::
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STATE OF KERALA, REPRESENTED BY
THE FOOD INSPECTOR, NELLANAD PANCHAYAT
NEDUMANGAD CIRCLE.
PUBLIC PROSECUTOR SRI. ROY THOMAS
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 31-10-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
N.K. Balakrishnan, J.
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Crl.R.P. No. 13 of 2006
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Dated: 31-10-2012
ORDER
The 2nd and 3rd accused who faced trial before Judicial Magistrate of First Class-II, Attingal for offences under Section 2(i) (a) (c)(m), 7(1), 16(1)(a)(i), 17(1) a (ii) and (b) of PFA Act, Rules 44 (b), 12 B, 50, and Rule 10 of K.P.F.A. Rules and who were sentenced to undergo simple imprisonment for three months and to pay Rs.500/- each as fine are challenging the concurrent conviction and sentence passed against them in this revision petition.
2. The 1st petitioner (A2) is the Venjaramoodu Ksheera Vyavasaya Co-operative Society of which the 2nd petitioner (A3) was the Secretary. Though the Directors of A2 Society were also arrayed as accused, the learned Crl.R.P. No. 13 of 2006 -:2:- Magistrate found them not guilty and accordingly they were acquitted. The 1st accused who was the alleged salesman who sold milk to PW1, the Food Inspector was absconding and so the case against him was split up.
3. The case of the prosecution is that PW1 purchased milk from the Society mentioned above at 4.30 p.m. on 29-10-1994 after serving Form No.VI notice to the salesman. He purchased 1 litre of milk for which he obtained receipt/acknowledgment from A1. It was properly packed, sealed and labelled as per the provisions of the PFA Act and Rules. When the sample was sent for analysis, it was reported that the sample did not conform to the standard prescribed and was thus adulterated. There was no request for sending the second sample (the sample which was with the (LHA)) to the Central Food Laboratory. All the procedural formalities were complied with.
4. PW1 to PW6 were examined and Exts. P1 to P4 were marked. Three witnesses were examined on the side Crl.R.P. No. 13 of 2006 -:3:- of the defence and Exts. D1 and D2 were marked. Though the petitioners contended before the court below that A1 was not the salesman of the Society that plea was not accepted. Similarly though it was contended that the milk was not stored for the purpose of sale but only for giving it to MILMA that was also not accepted. Similarly, though it was contended that the sample milk was obtained without stirring or churning it and so the sample was not homogeneous that contention was also repelled by the courts below. It was contended that the milk was collected from the members of the Society who used to supply different types of milk having different solid fact content and since the milk was intended to be given to MILMA and not for the sale, the petitioners have not committed any offence. That contention was also negatived by the courts below.
5. The Society and its Secretary (petitioners herein) were found guilty and convicted by the trial court. Crl.R.P. No. 13 of 2006 -:4:- The appeal filed by them was dismissed by the learned Additional Sessions Judge.
6. The first contention that has been raised by the learned counsel for the petitioners is that second accused Society was only collecting milk from the members of the Society and the milk so collected was used to be given to MILMA and the second accused Society was not selling milk and so it has to be found that the milk was not intended or kept for sale and hence, the petitioners cannot be found guilty as there was no "sale" within the meaning of the provisions of P.F.A. Act and Rules. In support of this submission, the learned counsel for the petitioners has relied upon the decision of this Court in V.G.K. Menon v. State of Kerala - 1998 (1) KLT 981. There the Food Inspector took sample of 'ghee' from Sabarimala temple premises. There it was not in dispute that the 'ghee' found collected in the temple premises was the ghee brought as offerings for Abishekam and other purposes by devotees Crl.R.P. No. 13 of 2006 -:5:- from various States. There was also no dispute that Appam and Aravana were distributed from the temple as prasadam. It was found that what was paid or given by the devotees into the temple is their offering and what is distributed is prasadam. It was further found that that would be the position even if the ghee is supplied to the devotees who bring it as an offering. Therefore, it was found that it was not a case where ghee was stored for the purpose of sale or for the preparation of an article of food for sale as per the explanation to Sec. 7 of the Act. In that context it was held by this Court that the Food Inspector can take samples only if the article is kept for sale. The facts of the case dealt with therein are entirely different and so the decision cited supra is totally inapplicable to the facts of this case.
7. In the case on hand it was stated by P.W.1 the Food Inspector that milk was collected from the members and others and that from the Society milk was sold to other Crl.R.P. No. 13 of 2006 -:6:- customers. In fact, the evidence given by P.W.1 is to the effect that when he went for purchasing milk for sampling, the milk was being sold by A1 to other customers and that Sri. Rajendran Nair who was cited as one of the witnesses was actually the person who had been there for purchase of milk. That evidence was not effectively controverted by the defence. Even the manner in which the milk was taken out from the large container/cooler and sold was also spoken to by P.W.1. If as a matter of fact, no sale was being conducted in the Society that could have been proved by the Society by producing registers and accounts of that Society. It must necessarily show such entries if the milk collected from the members and other suppliers was given by them to MILMA. That was not done. The cumulative effect of these factors would leave no doubt that milk was stored for sale in that Society.
8. The decision of the Apex Court in State of Tamil Nadu v. Krishna Moorthy, 1980 (1) SCC 167 and other Crl.R.P. No. 13 of 2006 -:7:- decisions on the point are to the effect that 'sale' under Section 2 (xiii) covers every kind,manner and method of sale. An unqualified sale of food for analysis to the Food Inspector will also be a sale within the definition.
9. There is also a Five Judges' Bench decision of the Supreme Court in Mangaldas v. Maharashtra State - AIR 1966 SC 128 where it was held that a sale to the Food Inspector for purposes of analysis was 'sale' under Sec. 2 (xiii) of the Act. Same was the view taken by the Apex Court in Food Inspector, Calicut Corporation v. C.Gopalan - (1972) 1 SCC 322. There also it was held that when there is sale to the Food Inspector of an article of food which is found to be adulterated, the accused will be guilty of an offence punishable under the Act.
10. The learned Public Prosecutor would rely on the decision in State of Kerala v. John (1978 KLT 738) in support of her submission that the sale of milk from the Milk Society to the Food Inspector would come within the Crl.R.P. No. 13 of 2006 -:8:- definition of sale occurring in Sec. 2 (xiii) of the Act. That was also a case where the Food Inspector purchased milk from the first accused and it was found that the Society was collecting milk and supplying it to the Milk Supplying Union at Kottayam where it was pasteurized before sale. In the case on hand the evidence is clear, cogent and convincing that the milk collected by the Society was stored and was being sold to the customers. Even if the remaining part of the milk used to be later sold or given to MILMA that will not help the petitioners to contend that there was no sale of milk to the Food Inspector. The argument to the contrary advanced by the learned counsel for the petitioners is thus found to be untenable.
11. The other contention that has been strenuously pressed into service by the learned counsel for the petitioner is that the sample of milk was not made homogeneous and representative and so the possibility of the fat content settling at the top cannot be ruled out. Crl.R.P. No. 13 of 2006 -:9:- The argument is addressed by the learned counsel relying upon the decision of the Apex Court in Food Inspector, Municipal Corporation Baroda v. Madanlal Ramlal Sharma and another - AIR 1983 SC 176. There it was held:
"We are conscious of the fact in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis".
12. The learned Public Prosecutor submits that there is no provision in the Act or Rules which makes it obligatory that before taking sample it should be made homogeneous by stirring or churning it. So far as the curd is concerned, there should be a creamy layer on the top where the fat contents are settled. As the fat contents used to settle at the top and unless the curd is churned and stirred it cannot be a homogeneous and representative Crl.R.P. No. 13 of 2006 -:10:- sample. The learned counsel for the petitioner submits that the principle laid down by the Apex Court in M.R. Sharma's case mentioned above applies equally to milk as well since the Apex Court has said that it applies to milk and milk preparations including curd and so it cannot be understood that the principle laid down by the Apex Court pertains to curd alone. The aforesaid decision was followed by the Gauhati High Court in State of Assam v. Banwarilal Pipalwa -1992 Crl.L.J. 3052, State of H.P. v. Madanlal - 2000 Crl.L.J. 4200; Santhosh Kumar Sharma v. State of Assam -2005 Crl.L.J. 1029; State of Himalchal Pradesh v. Joginder Singh - 2006 Crl.L.J. 3213 - 4200. In Madanlal's Case (supra) the sample taken was milk and not curd and so the learned counsel submits that the aforesaid decision applies to the case on hand. So far as milk is concerned, churning may not be required bu at the same time it cannot be said that stirring is not at all required since the fat settles on the top and in Crl.R.P. No. 13 of 2006 -:11:- order to find out or in order to make it homogeneous before taking sample it has to be stirred. The learned Public Prosecutor submits that when the vendor sells milk to the customers it is not the usual practice to stire it before selling it. When the Food Inspector purchases milk for the purpose of sampling then also what has been sold by the vendor to the Food Inspector has to be treated as the item that has been sold to the Food Inspector and as such so long as there is no provision in the Act or Rules which mandates the Food Inspector to stire the milk contained in the vessel or container to make it homogeneous, it cannot be said that for the mere non stirring of the milk by the Food Inspector the prosecution is vitiated or the conviction is to be set aside.
13. In this connection, the petitioners also rely upon the evidence given by DWs 1 and 2 . Though it was contended by the petitioners that as the milk was collected from the customers there would be variation in the fat Crl.R.P. No. 13 of 2006 -:12:- content and so it was absolutely necessary to make the entire milk available in the container homogeneous by stirring it.
14. DW1 was the Senior Deputy Engineer for the Diary Development Department. He has stated that he used to make technical supervision in respect of such coolers which are used in the Co-operative Milk Society for storing the milk. The container or cooler in which the milk was seen stored in the petitioner/Society was having a capacity of 500 litres in which at the relevant time there was only 7 litres of milk. It was stated that by using an intermediary vessel or something of that sort one litre of milk was taken out from the top. It was not taken by using the tap situated at the bottom. DW1 was examined by the defence to prove that since there was only 7 litres of milk in a big vessel /cooller of 500 litre capacity, because of the vacuum or the space in that cooler frost is likely to be formed and if there is continuous failure of electricity the Crl.R.P. No. 13 of 2006 -:13:- frost so formed may get itself melted, in which case, the milky water or water itself will fall into the container which will dilute the milk in which case it will in turn affect the fat content of the milk. In other words, it is in that way the defence wanted to contend that the sample taken did not conform to the standard prescribed. It is in that background the learned counsel for the petitioner submits that it was absolutely necessary to make the sample homogeneous by stirring it before taking the sample.
15. The decision of this Court in Babu v. Food Inspector - 2000 (2) KLJ 129 has also been relied upon by the learned counsel. That was a case where the decision of the Apex Court in K. Harikumar v. Food Inspector - 1995 Supp (3) SCC Crl. 933 was also followed. In Harikumar's case it was curd and not milk which was taken as sample but the principle laid down by the Apex Court in Harikumar and Madanlal's Case (cited supra) were followed in Babu v. Food Inspector (supra) and as Crl.R.P. No. 13 of 2006 -:14:- such that decision also is in support of the contention raised by the accused, it is argued by the counsel. There is no acceptable evidence in this case to show that P.W.11, before taking one litre of milk from the Cooler which contained 7 litre of milk, was stired and as such there is force in the contention raised by the defence that the milk contained in the container was not made homogeneous and a representative one before taking the sample gains momentum. The further fact that it was a cooler of a capacity of 500 litres which contained in it only 7 litres at the relevant time also assumes relevance for the reasons already stated above. Therefore, that benefit must go to the accused.
16. The other contention that has been vehemently raised by the petitioner is that so far as the second petitioner is concerned he was only the honorary Secretary of the first petitioner Society. No evidence has been adduced to show that he was in charge of or responsible Crl.R.P. No. 13 of 2006 -:15:- for the conduct of the business of the Society at the relevant time. Admittedly, there was no nomination as required under Section 17 (1) of the P.F.A. Act. Since there was no nomination it is the bounden duty of the prosecution to show that the 2nd petitioner was at the time the offence was committed in charge of and responsible to the Society for the conduct of the business of the Society. Admittedly, the 2nd petitioner was not present in the Society when the sample was taken. The sample was sold by A1 who subsequently absconded and so the case against him could not be proceeded with. Therefore, the learned counsel for the petitioner submits that as against the second accused there is absolutely nothing in evidence to show that he was in-charge of and was responsible to the Society for the conduct of the business. In support of the submission he would also point out that in the complaint also except stating that the second petitioner is the Secretary, nothing more has been stated as to the role of Crl.R.P. No. 13 of 2006 -:16:- the 2nd petitioner with regard to the sale of milk from that Society. The learned Public Prosecutor submits that since it is a Co-operative Society, there can be no doubt that the day -today administration of the Society is to be done or conducted by the Secretary, since Secretary is the person who has to carry out the decisions of the Board of Directors of the Society. The Society is headed, for all practical purposes by the Secretary, and as such the Secretary cannot saddle the liability on somebody else, the learned Public Prosecutor argues. It is also contended that no specific contention was advanced before the court below to the effect that the 2nd petitioner was not in-charge of or responsible to the conduct of the business of the Society. But that contention has been countered by the petitioner stating that since there was no allegation in the complaint that the second petitioner was responsible to the Society for the conduct of its business, there was no necessity of inviting answers by putting questions to the prosecution Crl.R.P. No. 13 of 2006 -:17:- witnesses as to the role of the 2nd petitioner vis-a-vis. the Society.
17. The learned Public Prosecutor has relied upon the decision in State of Mysore v. Uduppi Co-operative Society - AIR 1960 SC 80 - There the Co-operative Milk Society was prosecuted for the offence under Section 16 (1) read with Sec. 7 of the P.F.A. Act. But that decision is not of any help to the prosecution since what was held in that case is that it is unnecessary for the prosecution to prove that the officers of the Society knew that the milk offered for sale was adulterated milk. It was not dealing with the responsibility of the persons who were arrayed as accused but the point involved was whether knowledge was absolutely necessary to saddle the criminal liability. It was held that it is beyond any controversy that the owner of any adulterated goods sold or distributed is liable for the offence in question whether he sells or distributes the same by himself or by any person on his behalf. It may be Crl.R.P. No. 13 of 2006 -:18:- argued that if the secretary was responsible for the conduct of the business of the Society then whether it was sold by himself or through the absconding first accused may not be of much consequence since the person who employed or deputed as a workman for sale of the milk would also be liable for the offence in question. The Section itself is clear that it is not only the person who sells or distributes the sale by himself but also any person on his behalf is liable to be punished for the offence under the P.F.A. Act. But the question here is not whether the Secretary is liable for the adulterated milk sold by A1, the absconding accused, but whether the 2nd petitioner/Secretary was in -charge of and responsible to the conduct of the business of the Society. Since there was no averment in the complaint nor was any evidence adduced by PW.1 to show what actually was the responsibility or role of the Secretary, namely, the 2nd petitioner herein, it is difficult to hold that the 2nd Crl.R.P. No. 13 of 2006 -:19:- petitioner can be fastened with the criminal liability for the offence of sale of adulterated milk. Though it may appear that under the Co-operative Societies Act, the Secretary is the person who is to sue or who can be sued on behalf of the Society, it cannot be said that so far as the first petitioner Society is concerned (since the bye-law has not been produced) that the secretary was the person in- charge of and responsible to the conduct of the business of that Society. Simply because he was the Secretary it cannot be said that he should be saddled with the criminal liability. It could have been proved by causing production of the bye-law of that Society. That would have shown whether the Secretary of the Society was the person responsible for the conduct of the business of the Society . The burden is on the prosecution to plead and prove the same. Hence, the petitioners cannot be found fault with for not producing the bye-law of the Society. The decision of the Madras High Court in Public Prosecutor v. R. Crl.R.P. No. 13 of 2006 -:20:- Karuppan - AIR 1958 Madras 183 has been cited by Mr. Hood, the learned counsel for the petitioner. That was a case where trial of an offence was had under Section 16 (1) of the P.F.A. Act against a Co-operative Milk Society. The evidence in that case disclosed that the day- to-day business of selling the milk was done by the Clerk of the Society. The Secretary arrayed as accused was only a honorary Secretary. He was not going to the Society daily and the business was left in the hands of the Clerk with a check over him by the Secretary. Therefore, it was held that it would not make the Secretary a person who at the time of the offence was in charge of and was responsible to the Society for the conduct of the business within the meaning of Section 17 (1) of the Act. The aforesaid decision is quite apposite to the facts of the case, the learned counsel Mr. T.B. Hood, submits. The decision of the Apex Court in Nalin Thakur and Others v. State of Maharashtra - 2004 (1) FAC 68 has also been cited by Crl.R.P. No. 13 of 2006 -:21:- the learned counsel for the petitioner. Of course, that was not a case dealing with the Society but a Company as mentioned in Sec. 17 of the Act. There the appellants were the Directors of a company engaged in the manufacture and sale of vanaspati. The sample purchased by the Food Inspector did not conform to the standard prescribed. There it was held that if prosecution is successful in producing materials before the trial court to show that if the appellants therein could be prosecuted either under Section 17 (a) (ii) or section 17 (4), the trial court would be at liberty to take action in accordance with law. This decision has been cited by the learned counsel for the petitioners to augment his submission that in the case on hand, as pointed out earlier, there is absolutely no averment in the complaint nor is there any scintilla of evidence to show that the second petitioner who was described as the Secretary was in charge of and responsible for the conduct of the business of the Society at Crl.R.P. No. 13 of 2006 -:22:- the relevant time. Therefore, for the sale of the adulterated milk done by the vendor, A2 the Secretary, cannot be mulcted with the criminal liability.
18. It is argued by the learned counsel that not only for sale of the adulterated milk but also for not obtaining the P.F.A. license, the Secretary cannot be made liable. But the ministerial acts are to be done by the Secretary of the Society. Admittedly, no license under the P.F.A. Act and Rules was obtained by the Society for sale of milk. It was to be done by the Secretary. Unlike saddling criminal liability for the sale of milk by the vendor, here it has to be distinguished because what is required is a ministerial act on the part of the Secretary to obtain the licence. It was to be done by the Secretary or the vendor of the milk or by the Directors of the Society. As sale of milk was conducted in that Society without obtaining license, it could be proved that there was violation of Rule 50 of the P.F.A. Rules which says that no person shall manufacture, sell, stock, Crl.R.P. No. 13 of 2006 -:23:- distribute or exhibit for sale any article of food, including prepared food or ready to serve food except under a license. For the contravention of Rule 50 of the P.F.A. Rules the penal provision is the second Proviso to Sec. 16 (1) (a) (ii) which says that the punishment for contravention of the Rule is imprisonment for a term which may extend to three months and fine which may extend to Rs. 500/-. The incident is of 1994. It is just and proper that the 2nd petitioner Secretary is sentenced to pay a fine of Rs. 500/-. The first petitioner/Society is also equally responsible and so the Society also is mulcted with the criminal liability of Rs. 500/- for the offence as much and above.
19. In the result this Crl.R.P. is disposed of as stated below:
The conviction and sentence passed against the petitioners for offences under Sections 2(ia) (a) (c)(m), 7(1) and 16(1) (a)(i) are set aside. But the conviction Crl.R.P. No. 13 of 2006 -:24:- entered against the petitioners for contravention of Rule 50 of the P.F.A. Rules read with the second proviso to Sec. 16 (1)(a) (ii), is confirmed. The petitioners are sentenced to pay a fine of Rs. 500/- (Rupees five hundred only) each for the said offence. If the first petitioner/Society fails to pay the said amount it shall be realized by resorting to Sec. 421 Cr.P.C. If the second petitioner/Secretary fails to pay the amount, he shall undergo S.I. for one month. Dated this the 31st day of October, 2012.
Sd/- N.K.BALAKRISHNAN, JUDGE
ani. /truecopy/
P.S. toJudge