Calcutta High Court
Prakash Chand Jain vs State Of West Bengal And Anr. on 8 May, 1991
Equivalent citations: 1991CRILJ2912, 95CWN688
JUDGMENT A.M. Bhattacharjee, J.
1. It seems that my learned brother, Ray, J., and I are to some extent treading different routes, but en route the same destination. Both of us have agreed to allow the revision and to set aside, the impugned conviction and, therefore, the sentence also.
2. The conviction is under Section 16 of the Prevention of Food Adulteration Act, 1954, the accused-petitioner is admittedly a partner of a Firm and the offence alleged is sale of adulterated Cumin whole. The Firm was also arraigned as an accused, but stood discharged at the charge-framing stage as no charge was framed against it. The obvious and irresistible conclusion is, to borrow from the provisions of Section 245 and Section 246 of the Code of Criminal Procedure, that there was no ground for presuming that the Firm committed any offence and that no case against the Firm was made out.
3. A Firm is a Company, and a Partner is its Director within the meaning of Section 17 of the Prevention of Food Adulteration Act (hereinafter 'the Act' for short), as the Explanation to that Section expressly enunciates. That Section 17, quoted in extenso by Ray, J., provides, as do the corresponding and analogous provisions of various other cognate legislations, like Section 10 of the Essential Commodities Act, 1955), that where an offence under this Act is committed by a Company or a Firm, any person, whether a Director, Partner, Manager, Officer or Servant, who was, at the time of occurrence, in charge of and responsible to the Company or the Firm for the conduct of its business, shall also be, as if vicariously, liable to be prosecuted and punished. But the sine qua non for the operation of the section to rope in such a one is the commission of the offence by the Company or the Firm. Where, as here, the Firm, though arraigned as a co-accused, was discharged, and, therefore, commission of any offence by it stands not proved, the conditions precedent for the application of the Section, namely, commission of offence by the Firm, squarely falls through and the Section can no longer show its head. I would have thought this proposition to emanate irresistibly from the opening words of Section 17(1). But the three-Judge Bench decision of the Supreme Court in C. V. Parekh, AIR 1971 SC 447 : (1971 Cri LJ 418) and the later two-Judge Bench decision in Sheoratan Agarwal, AIR 1984 SC 1824, following C. V. Parekh (supra) with explanatory amplification and construing the analogous provisions of Section 10 of the Essential Commodities Act, 1955, having taken the same view, I can no longer propound the same, as my own, but must accept it as the law of the land.
4. One word. The decision of this Court in Durgamata Oil Mill v. Cateutta Municipality, 1978 Cri LJ 222 and of the Allahabad High Court in D. K. Jain v. State, AIR 1965 All 525 : (1965 (2) Cri LJ 581) were cited before the Supreme Court in Sheoratan Agarwala (supra) and it has been observed (at 1826) that "none Of these cases has any application. They arose under the Prevention of Food Adulteration Act and it is unnecessary for us to consider them". These observations cannot and must not be taken to mean that the Supreme Court has ruled that the ratio of the decisions in C. V. Parekh (supra) and Sheoratan Agarwala (supra) to the effect that a person in charge of and responsible to a Company or Firm for the conduct of its business cannot be vicariously held to be guilty for an offence alleged to have been committed by the Company or the Firm, unless the Company or the Firm is also found to be guilty, would not apply to a case governed by Section 17 of the Act. The relevant provisions of Section 17, as they stood before and also as they stand after the Amendment of 1976, are in pari materia with Section 10, Essential Commodities Act and cannot but be governed by the same ratio decidendi. In Durgamata Oil Mill (supra), the conviction of the Firm was set aside on the ground that no charge was framed against it. But neither in Durgamata Oil Mill (supra) nor in D. K. Jain (supra), the question as to whether any person in charge of and responsible to the Firm or Company for its business, can at all be convicted on the ground of such nexus alone, without finding the Firm or the Company to have committed the offence, was at all in issue and, therefore, none of the cases could have any application. We should, therefore, have no manner of doubt that in the case at hand, the Firm having been discharged, the petitioner accused cannot be convicted solely on the ground of his being in charge of and responsible to the Firm for its business.
5. It is, however, urged that even then, the accused has been rightly convicted as he undisputedly sold the adulterated article to the Food Inspector and that the decision of the Supreme Court in Sarjoo Prasad, AIR 1961 SC 631: (1961 (1)Cri LJ 447) followed in Ibrahim Haji, (1969) 3 SCC 901 and also the decision in I. K. Nangia, AIR 1979 SC 1977 are clear authorities for the view that whosoever sells, be he the owner, agent or servant or someone else, renders himself liable to be convicted by the mere physical act of selling. But accepting that the accused sold the article and accepting further that any seller, whether master or the servant, principal or the agent, employer or the employee, selling any adulterated article does so at the peril of his personal liberty, I have my doubts whether the sample of the article sold can, on the materials on record, be held to have been proved to be adulterated beyond reasonable doubt.
6. Since Judges and sages of Law have ceaselessly chanted the sonorous doctrine of presumption of innocence of the accused from almost time immemorial, I would not have the presumptuous temerity to question the same; but, if I may say with respect, the doctrine, in the broad shape and form in which it is propounded and declared to be a unique feature of our Criminal Jurisprudence, is somewhat confusing and misleading. Far from finding any sound basis for any such legal presumption to the effect that the accused is presumed to be innocent until his guilt is proved at the trial, I have found the so-called presumption to "faint and fail" whenever an accused is declined bail, and that too, on the basis of unsigned statements of some alleged witnesses, recorded behind the back of the accused, in the case-diary under Section 161 of the Code of Criminal Procedure, to which the accused has no access and copies whereof are not furnished to the accused till charge-sheet is filed. I have also found the so-called presumption to get a severe jolt when Section 105 of the Evidence Act mandates that "the Court shall presume the absence of circumstances" which would bring the case of the accused within the General Exceptions provided in Chapter IV of the Penal Code or elsewhere in the said Code or any other Law and which would demonstrate his innocence; or when Section 114 authorises the Court to presume the accused to be a thief or receiver of stolen property solely on the ground of his possession of the stolen goods, unless the accused satisfactorily accounts for such possession. The relevant provisions of various legislations relating to statutory or economic offences and also the recent amendments introduced in the Evidence Act in the last decade, e.g., Section 114A etc., are so inconsistent or incompatible with the so-called presumption as to render the same almost to a ritualistic chanting.
7. I am also inclined to think that the impression that in Criminal trials only, unlike in Civil trials, the standard of proof is of proof "beyond reasonable doubt", is not wholly correct. I do not think that any Civil Judge can decree a claim if he has "reasonable doubts" as to the claimant's right.
8. A stricter standard of proof has been insisted upon in Criminal trials, not as much as a requ(SIC)ient of the Law of Evidence, but because of the greatest possible value we accord to personal liberties of individual. A Criminal conviction would lead to deprivation of personal liberties and other freedoms, with a sentence of imprisonment, or even of fine only, if not paid. Because of the great anxiety with which every civilised society seeks to secure and protect the personal liberties of individuals, the Courts have also with anxious advertence evolved rules to prevent its deprivation as far as possible and one such rule is that if in a Criminal proceeding, two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused has got to be accepted. (See, for example, Kali Ram v. State, AIR 1973 SC 2773 : (1973 Cri LJ 1) paragraph 25). But in a similar situation in a Civil proceeding, the Court is free to accept any of the two possible views, which according to it is more reasonable or probable. All that is meant by the rule that the guilt must be proved beyond reasonable double means that no view, other than the guilt of the accused, must be reasonably possible. To borrow from Kali Ram (supra, at 2781), if there is some evidence or other material on record consistent with the innocence of the accused which may be, though not proved to be, true, the accused would be entitled to acquittal.
9. The principle as stated above is almost platitudinous, but nevertheless is of fundamental importance and I have referred to the same as the Courts below assessed and appreciated the material evidence on the point without any advertence to and in palpable deviation from the said principle. It is true that sitting in revisional jurisdiction, we are not expected to interfere with the concurrent findings of fact. Not that we cannot but that we ordinarily do not. While on the Civil side, the Court of Revision has had all along very limited power of interference confined to jurisdictional questions only, which has been further sought to be circumscribed by the Code of Civil Procedure (Amendment) Act of 1976, in the Criminal Jurisdiction, however, the words "correctness, legality or propriety of any finding......" are still retained in Section 397 of the Code of Criminal Procedure of 1973, as they were in Section 435 of the preceding Code of 1898. With these words staring at the face without any change for about a century, finding of fact, its correctness or propriety, cannot be a 'no entry' area or a prohibited zone for a Criminal Revisional Court and the conferment on the Court of Criminal Revision of almost all the powers of the Court of Appeal by Section 401 of the Code, as by Section 439 of the preceding Code, cannot but fortify the conclusion. But it is one thing to have the power and another thing to exercise the same. Existence of even gigantic power may be good, but not its giant-like exercise. The Courts have accordingly consistently held that, notwithstanding the wide arch of its jurisdiction, a Criminal Revision is not to be allowed to be a third or another round of trial on facts with unrestricted and unfettered power of reappraisable or reassessment of evidence. But where, as here, findings have been arrived at in breach of the fundamental principles of Criminal Jurisprudence, a Court of Revision not only can, but cannot but, interfere.
10. The sample of food alleged to be adulterated is Cumin whole. It is "primary food" as defined in clause (xii-a) of Section 2 of the Act "being a produce of agriculture or horticulture in its natural form". According to the standard prescribed for Cumin whole under the Prevention of Food Adulteration Rules, 1955 (Appendix B, Entry A. 05.09), "the proportion of edible seeds other than Cumin seeds shall not exceed 5.0 per cent by weight", but the Report of the Public Analyst shows that the proportion was 8.9 per cent.
11. The Food Inspector in his cross-examination after charge on 16-5-84 stated that the "accused Prakash Jain collected the sample from a gunny bag in a paper-packet and handed over the same to me. I do not know the special procedure for collecting sample of Cumin whole from a gunny bag of 55 Kgs. I know that for the purpose of collecting representative sample of Cumin Whole, I am supposed to collect samples from different layers (portions of the gunny bag)........... I know that unless the contents of Cumin Whole in a gunny bag is mixed thoroughly, it may be possible that in some portion of the Cumin Whole, there may be lesser quantity of edible seeds other than Cumin seeds and in other portions, there may be more quantity of edible seeds other than Cumin Seeds".
12. In his cross-examination after charge on 22-688, the Food Inspector however stated that "I took the sample from one of the said three bags. I myself took the sample after mixing the contents of the bag with the help of their instrument (Khonta with handle).......I took the sample only after mixing the contents of the upper portion of the gunny bag". Be it noted that the alleged and the only local independent witness to the occurrence, one Ratan Kumar Majumdar, though cited in the complaint, has not been examined at all and no explanation has been put forward for his non-examination.
13. Other edible seeds are such usual constituents of Cumin Whole that the prescribed standard has fixed a certain percentage as permissible. The Food Inspector has categorically stated that in a large bag or other container, other edible seeds may remain in different proportions in different layers and there may not be proper sampling unless the contents are mixed up. From his evidence before charge in 1984 and his evidence after charge in 1988, two views are possible. One, the accused did everything about the taking and handing over of the sample and there was no mixing up of the contents of the bag. The other, the Food Inspector himself did everything about the taking of sample and also mixed up, at least the upper portion of the contents of the bag. The Courts below adverted to this aspect, but failed to realise that in a case like this, the view in favour of the accused was to be accepted as a rule which has almost sanctified itself to a rule of Law. The Courts below, therefore, erred in law in not holding that the sample in question was not taken after mixing up the contents and was not therefore a proper sample, and, therefore, the accused could not be convicted on the basis of report of analysis of such a sample.
14. Though not cited by any learned counsel, I have considered the decision of the Supreme Court in Alasserry Mohammed, AIR 1978 SC 933 : (1978 Cri LJ 925) which is very often referred to as an authority for the view that a representative sample is not necessary to sustain a prosecution under the Act. In Alasserry Mohammed (supra), the earlier decision of the Supreme Court in Rajal Das G. Pamanani AIR 1975 SC 189 : (1975 Cri LJ 254) has been overruled and it has been ruled that the mere fact that the quantity of the sample taken was less than the quantity prescribed in Rule 22 of the Prevention of Food Adulteration Rules shall not, by itself, vitiate the analysis, unless, as has later been clarified in the new Rule 22B, the Analyst himself reports the quantity to be insufficient for proper analysis. The other point decided in Alasserry Mohammed (supra) was that if the food in question was contained in different containers or storages, it is not necessary to take samples from all such containers to make it a representative sample of the entire stock. But that is not the question before us in this case, nor I have proceeded to decide the same. I have only pointed out that when, in view of the peculiar nature of Cumin Whole, it is the Food Inspector's own admission that there cannot be proper sampling unless the contents at different layers are mixed up or stirred, and a view is reasonably possible on the evidence on record that there was no such exercise to make the sample a proper one, the accused ought not to be convicted on the basis of analysis of such a sample.
15. One word more. The Penal Section 16 penalises any person, who imports or manufactures for sale, or stores, sells or distributes any adulterated food "whether by himself or by any other person on his behalf". The prohibitory Section 7 also similarly mandates that "no person shall himself or by any person on his behalf" manufacture for sale, or store, sell or distribute any adulterated food. Qui facit per alium facit per se; he who acts through another is deemed to act in person. One would have accordingly thought that when a servant or any employee, whose only interest may be to get a paltry sum as his monthly or daily wage, sells any article, it is the master of the employer who sells the same by the servant or the employee on his behalf. One would have been inclined to hold that the words "by any person on his behalf" were inserted only to ensure that an owner or an employer does not go out on the specious plea that he did not do, but some one else did, the actual selling and he was not even present at the place or time of occurrence; but were not intended to provide punishment to an innocent servant acting at the instruction or bidding of a criminal master. Ordinarily, a mere servant or employee, having no interest of his own in the goods, cannot in law be treated to be the seller. But law can make impossible possible and if the words were "if any person sells, whether for himself or on behalf of another", a mere servant or employee performing the physical act of selling, though only for or on behalf of his master or employer, would have clearly come within the mischief. The relevant words in Section 16 and also Section 7 being any person who sells "by any (other) person on his behalf" and not being "for or on behalf of another", I have found it difficult to understand as to how and why a mere servant or employee selling for and on behalf of his master or employer should be punished.
16. But my inability or incapacity to understand is absolutely immaterial when, as already noted, the three decisions of the Supreme Court in Sarjoo Prasad (supra), Ibrahim Haji (supra) and I. K. Nangia (supra) have ruled that a mere servant or employee selling on behalf and under the direction of his master or employer is also guilty. As ruled in the earliest three-Judge Bench decision in Sarjoo Prasad (supra, at 632), "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.......If the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision, unless he is shown to have guilty knowledge".
17. This must be accepted as the law of the land, until and unless a different view is taken by a, larger Bench of the Supreme Court or the appropriate Legislature steps in to change the law. But I think I would be failing in my duty if I do not advert to a question which does not appear to have been considered by the Supreme Court in any of those decisions, so that the same may, if thought fit, be examined on a suitable occasion.
18. Under the law as enunciated in the aforesaid three decisions of the Supreme Court, even a daily-rated casual worker employed for a day only by a shop-owner would be liable to punishment if he sells any commodity to a customer in the course of his one-day employment, even though he did not and could not have the remotest idea that the commodity was adulterated. The punishment Under Section 16 is severe enough, extending to six years imprisonment with the minimum of one year and even to life-imprisonment in some cases with the minimum of three years. Would it not be shockingly unreasonable to expose such a casual employee, running daily from place to place to seek a day's employment for a paltry wage, to the risk of such severe punishment, even though he did not have a guilty mind and could not in any way know about the adulteration?
19. A "due process" clause of the American type does not expressly form part of our Constitution. But Krishna Iyer, J. has nevertheless declared in Sunil Batra AIR 1978 SC 1675 at 1690 : (1978 Cri LJ 1741) that though "our Constitution has no 'due process' clause", yet "in this branch of law after Cooper and Maneka Gandhi, the consequence is the same". In fact, the learned Judge in Maneka AIR 1978 SC 597, Gudikanta AIR 1978 SC 429 : (1978 Cri LJ 502), Babu Singh AIR 1978 SC 527 : (1978 Cri LJ 651) and Hoskot AIR 1978 SC 1548 : 1978 Cri LJ 1678 has repeatedly declared that "law" means and must be reasonable law and what is "unarguably unreasonable" "is shot down by Article 14". Bhagwati, J. in his dissenting judgment in Bachan Singh AIR 1982 SC 1325 : (1982 Cri LJ (NOC) 193) has also observed that "every facet of the law", which "would include not only the adjectival but also the substantive part of the law" must be reasonable. But while this dissenting judgment of Bhagwati, J., was delivered on 16-8-1982, the learned Judge was already a party to the majority decision in A. K. Roy AIR 1982 SC 710 : (1982 Cri LJ 340) delivered on 28-12-1981, where Chandrachud, C.J., speaking for the majority, ruled out the power of the Court to decide the fairness or reasonableness of the law itself, as distinguished from the procedure prescribed thereunder. But the same learned Chief Justice, while speaking for a five-Judge Bench in the later decision in Mithu (1983) 2 SCC 277 at 284 : (1983 Cri LJ 811) has nevertheless ruled that "if a law were to provide that the offence of theft will be punishable with the penalty of cutting of hands, the law would be bad as violating Article 21." Invalidation of such a law on the ground of the sentence being shockingly disproportionate or 'savage' can be justified only if the Courts have power to judge the reasonableness of the substantive law also or the substantive portion of the law and such a power can rest on due process provisions alone. These observations in Mithu (supra), along with the observations of Krishna Iyer, J., in Sunil Batra (supra), Gudikanta (supra), Babu Singh (supra) Hoskot (supra), and Maneka (supra), have gone a long way to make substantive due process a part of our Constitutional Law.
20. I have adverted to all these aspects because both Sarajoo Prasad (supra) and Ibrahim Haji (supra) were decided in 1960 and 1969 respectively, long before this 'due process' concept, whether substantive or adjectival, was developed in our Constitutional Jurisprudence in its present form. I am inclined to think that the relevant expression in Section 7 and Section 16 of the Act being "if any person sells........... by any (other) person on his behalf", and not being "if any person sells whether himself or on behalf of another", the construction that a sale by a mere servant or employee for and on behalf of the owner or the employer without any guilty mind does not render the former liable, would be more reasonable and consistent with the 'due process' concept, while a contrary construction would be violative of the same. But till Sarajoo Prasad and Ibrahim Hazi and I. K. Nangia hold the field, I must, with respect, leave the matter at that.
21. My learned brother Ray, J., has made admirable endeavours and spirited sorties to demonstrate that these decisions of the Supreme Court do not obligate him to hold that even a mere employee or servant can be guilty without guilty knowledge. Ray, J. is inclined to hold that the relevant question was not urged before and adverted to by the Supreme Court in the manner done by him and the relevant observation cannot be treated as the ratio decidendi. I wish I could agree with Ray, J.; but I am afraid that we cannot get over the observations of the highest court on the ground that these were obiter or that some important aspect, which ought to have been considered was not considered. Rajna Drista Adristaba Nasti Tasva Punarbhava.
22. I would, for the reasons stated earlier, allow the Revision, set aside the order of conviction and the sentence imposed by the trial Court and affirmed in appeal and acquit the accused-petitioner, who shall stand discharged from his bail-bond. Records, with copy of our judgment, to go down at once.
Ajoy Nath Ray, J.
23. A legal issue raised in this criminal revision is, whether, under the provisions of the Prevention of Food Adulteration Act, 1954, a partner of a Firm, even if he has been engaged in actual active business, and in fact has taken part in the process of sale of the adulterated food can still be convicted, in a case where the firm itself is discharged, let us say, as here, by reason of no evidence being adduced against the Firm.
24. It is nobody's case that the shop room or the godown was the partner's own. Prakash Chand Jain, the applicant before us, was present there as a partner, and effecting the sale as a partner of the Firm, M/s. Santi Kumar Kamal Kumar this Firm was discharged.
25. Section 17 of the said Act provides as follows (only relevant portions):--
17. Offence by companies.-- (1) Where an offence under this Act has been committed by a company --
(ii) where no person has been so nominated, every person who at the time of offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: -
(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company 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 company, (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, Explanation.-- For the purposes of this section-- (a) "company" means any body corporate and includes a firm or other association of individuals;
(b) "director", in relation to a firm, means a partner in the firm; and.................
It is quite clear from the above, that a partner cannot be convicted Under Section 17 unless the commission of an offence by the Firm (Company) is first established. We draw support in this regard from the case of Sheoratan Agarwalla reported in AIR 1984 SC 1824.
26. The next point is, whether, the partner would be liable as a seller himself.
27. A partner indisputably acts in general on behalf of the Firm as well as the other partners. Thus, if an employee, or an ordinary selling agent is liable, so would be, a fortiori, a partner.
28. In the case of Sarjoo Prasad, AIR 1961 SC 631 : (1961 (1) Cri LJ 747) an employee was held to be liable. Justice Shah said in the third paragraph:--
(3) The expression "sale" is defined by Section 2(xiii) in the Act as meaning sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article. The definition includes not only actual sale but agreement for sale, offer for sale exposure for sale and even possession of articles for sale and attempt to sell. The appellant was in charge of the shop at the time when mustard oil was sold to the Food Inspector, Mustard oil was exposed for sale and it was in the possession of the appellant and he actually sold it.
The Section 2(xiii) of the Act referred to above reads as follows:--
" (xiii) "sale" with its grammatical variations and cognate expressions means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such artcle;"
29. It was never argued in the case of Sarjoo that sale, or, for that matter, say, exposing for sale, could not include sale on behalf of another, or exposing for sale on behalf of another. There are no express words in the Act which makes sale on behalf of another an offence; but there are express words in Section 16 which do make sale through another an offence.
16. Penalties.-- ((i) Subject to the provisions of Sub-section (1A)), if any person --
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food --
(i) which is adulterated.......... shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable...
30. Since the argument of exclusion of sale on behalf of another was not pronounced upon in Sarjoo's case, the overruling of the Madras case in the seventh para (p. 633), or the view that there is no necessary implication excluding the agent from the purview of the offence, do not lay down the course to be followed when such an argument of exclusion is advanced, as here.
31. The case of Sarjoo Prasad decides that a person who sells the adulterated food is liable, irrespective of guilty knowledge. That is the proposition it decides and is thus an authority for the same. Whether the appellant, as an employee, could at all be said to have sold the goods was not an issue before the Court. It would be unjust and contrary to the true doctrine of precedent to hold the applicant herein guilty on the authority of Sarjoo Prasad, even if the applicant raises a new point in this case.
32. The necessity of this approach is further emphasized by the case of Ibrahim Haji, reported in (1969) 3 SCC 901. Justice Hegde said there that it was immaterial whether the accused was an agent or a partner; but once it was proved that it was he who sold the adulterated article, conviction would follow; that on the authority of Sarjoo's case, it was not the owner alone who was liable. Then, it has got to be proved that the accused sold the article. Who can be said to have sold the article? A part owner? A non-owner? An agent with a disclosed principal? A reading so Sarjoo's Case or Ibrahim's Case will not answer these questions fully.
33. Since his Lordship Justice Bhattacharjee and I exchange draft judgments and discuss, as we have done here too, I have felt it to be my duty to pay redoubled attention to the above supreme authorities to see if I am encroaching or forbidden land. I may be wrong, but I am quite clear myself that I am not. I think that if the proposition of law to be tested for being covered by authority is thus formulated, namely 'the definition of sale in Section 2(xiii) of the T.A. Act does not include sale by a partner (and as a partner) on behalf of the entire partnership', and the following description suggested by cross is applied (vide Cross's Precedent in English Law, Second Edition, at page 77)-- "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury".--
--then, it is manifest that the reverse of the above proposition of law can be safely said not to have been treated as even an impliedly necessary step, having regard to the reasoning in the two above Supreme Court Cases.
34. A criminal liability cannot be statutorily created save by express words. I know of no other branch of the law where the Courts construe a statute more strictly. There are no express words which make a person liable, be he agent or employee, if that person sells or possesses for sale or exposes for sale adulterated food on behalf of another. Mens rea is not in issue. In issue is the very existence of an offence. I think no offence exists to convict the ordinary agent or employee, save for aiding and abetting, for which other elements like mens rea have to be proved separately.
35. Lastly, is the partner liable as part owner of the adulterated food and part seller? Even if he is not guilty for having sold on behalf of the Firm, is he not a full-fledged seller himself?
36. I cannot say that the rights in relation to the adulterated food did not, in some way, vest jointly in the partners. Even if they did, a single partner's interest in the partnership property is not that of a simple single joint owner. That is why the transfer (say by award) of a partner's interest in partnership property is not compulsorily registrable even if the partnership property comprises in land. It is not necessary to specify exactly, for the purposes of this case, the nature of a partner's right regarding partnership property, vis-a-vis other partners and third parties, or the nature of the legal personality of a partnership firm. Suffice it to say that the Act contains no express words by way of which sale can be said to include such a partial sale, or such a truncated divesting of a partner's own personal right as is involved when a partner sells, in capacity as a partner, some property, on behalf of the firm, which property has been brought previously into the partnership till.
37. In law therefore the revisional application must succeed.
38. Mr. Dutta raised another point about the proviso to Section 2(i)(m) of the Act. That is as follows :--
(m) if the quality or 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 constituent are present in quantities not within the prescribed limits of variability, in either case, 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.
39. I am not impressed by the argument that the words 'beyond the control of human agency' must refer to possible pre-harvesting preventive measures only and not to possible purification after the food is gathered.
40. On the single legal point referred to above, I would, therefore, set aside the conviction and discharge the applicant from his bailbond unconditionally.