Orissa High Court
Badridas Chandak vs Purna Chandra Mishra on 11 August, 1995
Equivalent citations: 1996CRILJ902
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. Petitioner faced trial for commission of an offence punishable under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (in short, the 'Act") for alleged contravention of Rule 50 of the Prevention of Food Adulteration Rules, 1955 (in short, the "Rules"). It was alleged that he was selling food articles without requisite licence. Though there was an allegation of selling adulterated food articles, the same was not accepted by the learned Addl. Chief Judicial Magistrate (Special), Cuttack (in short, the 'ACJM')- For the contravention of Rule 50 of the Rules petitioner was found guilty and sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 250/-. In default to further undergo rigorous imprisonment for fifteen days. In appeal, conviction and sentence were maintained by the learned Second Addl. Sessions Judge, Cuttack.
2. Background facts as presented by prosecution stated in brief are as follows:
The Food Inspector attached to Cuttack Municipality (P.W. 1) inspected the business premises styled as M/s Shree Agency Store situated at Malgodown, Cuttack on 12-1-1982. He suspected lozenges kept in the shop to be adulterated. Thereafter he served notice on the petitioner the manager who was conducting business, disclosing his identity and intention to purchase 900 grams of two brands of lozenges from the petitioner. He paid the price and purchased 900 gms. of each brand. Each item of the purchased articles was divided into three parts, kept in dry, clean glass bottles, duly packed fastened, labelled and sealed. One bottle of each variety was sent, for, chemical, analysis. On analysis, lozanges were, found to be adulterated. During inspection, demand was made to show licence to deal with food articles petitioner expressed his inability to produce it, and admitted that no licence had been obtained. Thereafter, the Food Inspector after observing requisite formalities and obtaining requisite consent of the Chief District Medical Officer, Cuttack (in short the 'CDMO') filed prosecution report. Petitioner pleaded innocence. Petitioner pleaded that he was not the proprietor, or manager and, he was merely an Accountant of the shop and his father was the owner and therefore he had notability. This plea was not accepted by trial court and the appellate court who on analysis of materials on record came to hold that petitioner was responsible and liable. It was held that prosecution has established that petitioner could not produce licence thereby attracting culpability in terms of Rule 50 of the Rules read with Section 7 of the Act. As indicated above, trial court acquitted petitioner of the charges of adulteration.
3. According to Mr. S.C. Lal, learned counsel for petitioner, petitioner was not responsible or liable for any information. Further food article 'lozenges' is not one of the articles enumerated in the Rules in respect of which licence was to be taken. It is pointed out that Rule 50 at the relevant time was different from the present form. Walls present Rule is all pervasive, at the point of time the alleged violation took place, licence was required in respect of only a few items as enumerated in the Rule itself. It is therefore, stand of learned counsel for petitioner that no licence was required. It is further submitted by learned counsel for petitioner that the occurrence took place more than a decade back, and considering that except and nature of infraction sentence as awarded is harsh. Learned counsel for the prosecution on the other hand submitted that the expression "confectionary', 'sweetment' and 'savoury' as appearing in Clause (m) of Rule 50, at the relevant time, 'clearly takes care of food article "lozenges". The entry is broad enough to take care of the article. So far as septence is concerned, it is stated that food adulteration is a social offence and therefore, no ramission in sentence is called for.
4. So far as the stand relating to question whether petitioner was a sales man or Accountant, I find that Courts below have analysed materials on record to come to a categorical finding that petitioner was responsible and liable under the statute for not taking licence. Conclusion is essentially factual. While exercising revisional jurisdiction. 1 find no scope to take a different view, since the finding cannot be called to be perverse or unreasonable. Coming to the question whether licence was necessary, Clause (m) on which emphasis has been laid reads as follows:
" (m) confectionary, sweetmeats and savoury."
Lozenges is commonly understood to mean a small bit of flavoured sugar medicine meant to be dissolved in mouth. It is in common parlance accepted to be a small sweetmeat medicated or not. It is a small cake or tablet, originally diamond shaped, of mediciated or flavoured sugar etc to be held and dissolved in the mouth. Confectionary includes a sweetmeat, it is something prepared with sugar; confectionary is also understood to be a place where candy and other confections are made or sold. Confection is a prepared dish or delicacy, a preparation or fruit, spices, sugar, or the like used as a relish or dainty, a preserve sweetmeet, camfit. Savoury is an aromatic variety of mint, cultivated for its use in cookery. In the aforesaid premises, lozenges are encompassed by serial (m). It may be noted here that Rule 5 deals with standards of quality, of the various articles of Food. The specifications arc in Appendix B to the Rules and are as defined in that Appendix. Serial A.25 deals with "sweets and confectionary". Item A 25.03 relates to lozenges.
5. Coming to the question of sentence, it has to be noticed that offence relating to absence of licence is not covered by first proviso to Section 16(1). The Court may for adequate and special reasons, impose a sentence of imprisonment for a term which may extend to three months and with a fine which may extend to Rs. 500/- without imposing minimum sentence provided in Section 16(1) which are ordinarily to be imposed. Offence in question comes within purview of Sub-section (1-a) (ii) of Section 16 of the Act, and is relatable to the second proviso to the said Section. Said proviso inter alia deals with licence to be obtained.
Section 23(1A) is relevant for the purpose. It reads so far it is relevant as follows:
" 23. Power of the Central Government to make rules -
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(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health."
Rule 50 of the Rules appears in Part IX under the heading "Conditions for Sale and Licence". A person dealing in food articles without licence comes within the purview of Second proviso. For adequate and special reasons a sentence of imprisonment for a term which may extend to three months and with fine which may extend to Rs. 500/-, without imposing minimum sentence as permissible.
Considering the fact that alleged violation took place more than a decade back, and article which was being sold. I feel custodial sentences for the period already undergone with a fine of Rs. 5()()/-, with default sentence of one month would suffice. So of the fine amount if collected, be paid to the Cuttack Municipality.
The Criminal Revision is disposed of according.