Municipal Committee Amritsar vs Parkash Chand

Gopal Singh and B.R. Tuli, JJ.—This appeal u/s 417, Code of Criminal Procedure, is from the judgment of acquittal recorded by Shri Sher Singh Sidhu, Judicial Magistrate 1st Class, Amritsar dated December 23, 1965 acquitting Parkash. Chand and Kishan Chand residents of Amritsar for an offence u/s (a) (i) of the Prevention of Food Adulteration Act, 1954 Petition for leave to appeal u/s 417, Code of Criminal Procedure, was filed by Municipal Committee, Amritsar against both the accused Parkash Chand and Kishan Chand. At the time, the leave was granted, the appellant did not press the petition against Kishan Chand. Thus we have to see if any case for an offence u/s 16(1) (a) (i) of the Act has been made out against Parkash Chand.

The facts of the case are that Shri Devi Dass Tak Food Inspector visited on January 25, 1965, the shop of Parkash Chand. He is partner of the firm styled as M/S Kishan Chand Parkash Chand carrying on business in Bazar Dal Mandi, Amritsar. The Food Inspector told Parkash Chand that he wanted to take sample of ginger in which he deals from the premises of his shop He found in his possession a gunny bag containing about 50 kilograms of ginger lying in the premises. He took sample of the ginger out of a gunny bag, divided it into three equal parts and put them in three clean and dry bottles. The bottles were labelled, stoppered squarely fastened and wrapped in paper and duly sealed. One sealed bottle of the sample was delivered by him to Parkash Chard, the second was sent to Public Analyst, Municipal Committee, Amritsar, by band and the third was retained by the Food Inspector. The Food Inspector handed over an intimation as prescribed under Rule 12 of the Prevention of Food Adulteration Rules, 1955 framed under the Prevention of Food Adulteration Act, 1954 to Parkash Chand intimating that be had taken from the premises of his shop sample of ginger from gunny bag containing about 50 kilograms of the article. That intimation is marked as Exhibit P. A. Parkash Chand executed receipt Exhibit P.B. admitting the receipt of Rs. 2.46 on account of price of 600 grams of ginger purchased as sample by Devi Dass Tak, Food Inspector. That receipt is signed by him. He signed the receipt as partner of M/S Kishan Chand Parkash Chand and as proprietor M/S Parkash Chand Ishar Dass. At the time of purchase of sample, a certificate Exhibit P. C. signed by Jagiri Lal and Parkash Chand was drawn up. The certificate testifies to the fact that the sample has been purchased by the Food Inspector against the price paid from Parkash Chand at his shop, that the sample has been put in three bottles approved by the vendor sealed in his presence with the wrapper covering the mouth of the bottle signed by Parkash Chand and the Food Inspector and that one of the sample bottles was delivered to the vendor. Memorandum Exhibit P.D. was addressed by the Food Inspector to the Public Analyst communicating to him that a sample was purchased from Parkash Chand at 4.30 p. m. on January 25, 1965, that he is partner of the firm M/S Parkash Chand Ishar Dass and that a copy of the memo and a specimen impression of seal used to seal the packet of the sample v as being sent separately by band. The Food Inspector also addressed a letter Exhibit P. E. to the Public Analyst communicating to him that he was sending along with the sample taken from Parkash Chand a clear impression of the seal used in packing the sample. All the above documents are dated January 25, 1965 The Public Analyst sent his report dated the 16th February, 1965 marked as Exhibit P. F. to the Food Inspector. In that report, he certified that the sample received by him was properly sealed and fastened, and that he found the seal intact and unbroken. About the result of analysis of the sample, he gave his opinion that the ash content of the sample was 7.5 % instead of 7.0%, water soluble ash was 1.5%, water extract 10.3 %, alcohol extract 6.6% and lime as Ca. O. 2.6% instead of 1.0%. In conclusion he stated that in his opinion the sample was adulterated in respect of lime which was in excess of the maximum prescribed limit.

A complaint u/s 16 of the Food Adulteration Act dated March 28, 1965, was filed by the Food Inspector as complainant in the Court of Municipal Magistrate. Amritsar. That complaint is marked as Exhibit P. G. Along with that complaint containing the fact as stated above, the documents Exhibits P. A. to P. F. were attached as enclosures, Parkash Chand respondent was summoned and appeared before the trial Magistrate on August 20, 1965. On that date, he was served with a notice containing the above statement of facts including the fact that the report of the Public Analyst disclosed that the sample of ginger taken from him was adulterated as it contained 2.6% of lime as Ca O instead of 1%, It was further stated therein that he bad committed an offence u/s 16 (1) (a) (i) of the Act and he was called upon to explain as to why he should not be convicted u/s 16 (1) (a) (i) of the Act. In reply, on August 20, 1965, he stated that he was working as a broker, that be received small quantity of ginger as sample from shopkeepers, that after examination he placed it on the roof of the chaubara and that he committed no offence. Kishan Chand accused was also served with a similar notice. Kishan Chand in reply stated on the same date that he had no concern with the business of Parkash Chand, that be had neither any shop nor any house at the place from where the sample was taken, and that he was innocent.

The complainant alone appeared in support of his case. He proved the facts stated in the complaint and the various documents pertaining to the taking of sample, the payment of price and the report of the Public Analyst. In cross examination, he admitted that Parkash Chand was a Commission Agent.

In his statement u/s 342, Code of Criminal Procedure made on October 26, 1965, Parkash Chand admitted his signature and thumb impression on the copy of the intimation Exhibit P. A. served upon him by the Food Inspector. He denied that he sold any finger to the Food Inspector. He, however, did not deny that receipt Exhibit P. B. pertaining to the sale of ginger for a price of Rs. 2.40 was signed and issued by him to the Food Inspector upon the sale of sample of ginger He also conceded that the Food Inspector divided the sample of ginger in three equal parts and placed each part in a separate bottle, that the same were sealed and one sample bottle was given to him as borne out by receipt Exhibit P. C Kishan Chand in his examination u/s 342, Code of Criminal Procedure, denied his being the partner of Parkash Chand and pleaded complete ignorance about the facts of the case. Parkash Chand accused produced Inderjit D. W. in defence. He stated that Parkash Chand was Commission Agent and that he did not sell anything of his own but worked as Commission Agent and that Kishan Chand accused had no concern with Parkash Chand accused.

The trial Court held that Kishan Chand was not a partner of Parkash Chand and consequently had nothing to do with the commission of the offence of adulteration. He was accordingly acquitted As regards Parkash Chand, the Court took the view that ginger recovered from the roof was not a sizeable quantity, that he was a Commission Agent and that there was no evidence to show that he sold ginger to others. He further held that by virtue of the provisions of Section 7 of the Act, ginger must have been exposed for sale. He thus came to the conclusion that Parkash Chand could not be held liable for the offence for sale of adulterated ginger and acquitted him.

A preliminary objection has been raised by Shri M. R. Chibbar, Counsel for the respondent that the present appeal against the judgment of acquittal u/s 417 of the Code of Criminal Procedure involves question of appreciation of evidence and the view taken by the trial Court should not be disturbed. As the discussion of the points raised on behalf of the appellant, which presently follows, will show, the question involved is one of law and not merely of appreciation of evidence. In the light of the relevant provisions of law, an irrelevant consideration of the respondent being a Commission Agent has influenced the trial Court''s decision. The trial Court has also ignored to take into consideration the relevant portions of documents Exhibits P. A. to P. F. and in particular Exhibits P. A. and P. B. along with the statements made by the Food Inspector and the accused admitting the execution and contends of these documents This has resulted in erroneous finding of tact and consequent miscarriage of justice.

The power of the High Court u/s 617 of the Code of Cumina1 Procedure to interfere with a finding of fact in an appeal from the judgment of acquittal is at par with the power to interfere with a judgment of conviction. Their Lordships of the Supreme Court held in Radhakishan Vs. State of U.P., as fallows:

An appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court in appeal finds that the acquittal is not justified by the evidence on record, it can set aside the acquittal without coming to the conclusion that there were compelling reasons for doing so.

In the light of the above observation of their Lordships, it is not correct to say that a judgment of acquittal cannot be set aside unless there are compelling reasons for doing so. The justification for the judgment of acquittal can be sought from the evidence on the record and that is possible only by consideration of that evidence. The preliminary objection is, therefor, overruled.

Mr Roop Chand Chaudhry, who appears for the appellant, contends that the view taken by the trial Court that there was no sale because the gunny bag from which sample of ginger was taken was not exposed for sale is not correct. He also urged that even if the respondent is a Commission Agent, he is liable for being proceeded against u/s lb (1) (a) (i) of the Act after the sample of ginger taken out of the bag containing about 50 kilograms of ginger was found to be adulterated.

For determination of the question whether there was any sale of ginger by the respondent to the Food Inspector, certain relevant pro visions of the Act have to be considered.

The word, "sale" is defined in Section 2 (xiii) as sale of any article of food, whether for cash or an credit or by way of exchange and whether by wholesale or retail, for human consumption 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. According to this definition, the act or transaction of sale of ginger, which is an article of food, for analysis, taken by way of sample, will be sale of ginger. This definition is independent of the consideration of the nature of business of the person, who sells. Even if the person who is asked to sell and sells an article of food for analysis or determination as to whether that article is adulterated or not, the transaction will be one of sale. Considering the scope of the definition of the word "sale", it is of no consequence whether the seller is a Commission Agent or a dealer in that article of food.

The word, "adulterated" is defined in Section 2 of the Act. Reading it in conjunction with the relevant clause pertaining to the facts of the present case, the definition would read as follows:

An article of food shall be deemed to be adulterated:- (a) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.

The definitions and standards of quality of articles of food are given in Appendix B attached to the Prevention of Food Adulteration Rules, 1955 The relevant rule for ginger is A 05 08. In that rule, following is the definition and standard of quality prescribed for ginger:

Ginger means the washed and dried or the decortiested and dried rhizome of Zingiber officinale and shall be free from insect pests. Sulphur dioxide may be used as preservative. It shall conform to the following analytical standards:

(a) Alcohol (90 per cent) soluble extract. Not less than 4.5 per cent.

(b) Ash-Not more than 7.0 per cent.

(c) Water soluble ash-Not less than 17 per cent.

(d) Cold water soluble extract Not less than 10.0%.

Section 7 of the Act deals with certain types of prohibitions in relation to articles of food. That Section runs as follows:

No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute:

(i) any adulterated food;

(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.

As found by the Public Analyst, the sample of ginger taken from the respondent falls below the prescribed standard and is an adulterated article of food.

To constitute the transaction of sale, there must be an offer by the purchaser to purchase article of food for price and acceptance of that offer by the vendor. In this case, the Food Inspector made the offer for the purchase of ginger for the purpose of sample being taken for analysis. This offer was accepted by the vendor. The Food Inspector paid a sum of Rs. 240 as the price of 600 grams of ginger purchased from the respondent The respondent executed receipt Exhibit P.B. for having sold that quantity of ginger by way of sample to the Food Inspector. Thus the transaction within the definition of the word "sale" was concluded It is this definition of the word, sale, which gets woven into the texture of the language of Section 7 of the Act. As the relevant extract of Section 7 of the Act reproduced above shows, sale for analysis is not subject to any limitation or restriction of the article of food sold being exposed for sale or the vendor being one which carried on the business of dealing in or selling that commodity. The extended scope of the word "sale", as given in the definition of that word, so as to include sale for public analysis will be rendered nugatory if the so extended import of the word "sale'''' is not read in the word "sell" used in Section 7 of the Act. Section 16(1)(a)(i) when recast by excluding the portion of the text of that provision, which is not relevant for the purpose of this case, would run as follows:

If any person sells any article of food, which is adulterated, shall, in addition to penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment....

Reading the definition of the word, "sale" in conjunction with Sections 7 and 16(1) (a)(i), no doubt is left that if the ginger fold by the respondent for analysis is found to be adulterated, it falls within the clutch of Section 16(1) (a) (i). A Division Bench of this Court in Municipal Committee, Ambala v. Basokhi Ram AIR 1859 P&H 175, white considering the question whether the purchase of an article of food for the purpose of analysis was or was not sale, held as follows:

Definition of sale given in the Act makes it clear that the purchase of milk for analysis by Food Inspector would be a sale and would bring into operation the provisions of the Act.

I am thus fortified in the view that the transaction in question is one of sale. It is not further necessary for the complainant to prove that the accused sold ginger to other persons, carried on business of sale of giner or exposed that article for sale. Their Lordships of the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, considered the question whether the transaction of sale for analysis per se could be regarded as one of sale within the definition of the word "sale" in Section 2 (xiii) of the Act. The farts of the present case are similar to that case. In the present case, no objection was taken on behalf of the respondent while selling ginger that he did not want to sell it to the Food Inspector for the purpose of analysis. Intimation Exhibit P-A served under Rule 12 of the Rules and receipt Exhibit P.B. given by the respondent to the Food Inspector leave no doubt that the transaction was with the consent of the respondent and voluntary one. Their Lordships of the Supreme Court while considering this aspect of the case observed as follows:-

A contract must be consensual and that this implies that both the parties to it must act voluntarily No doubt, a contract comes into existence by the acceptance of a proposal made by one person to another by that other person That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout, the case was argued on the footing that the transaction was a ''sale''. That was evidently because here we have a special definition of "sale" in S. 2 (xiii) of the Act which specifically includes within its ambit a sale for analysis. It is, therefore, difficult to appreciate the reasons which led Raman Nayar, J to hold that a transaction like the present does not amount to a sale.

Shri Chhibar in reply to the arguments advanced on behalf of the appellant submitted that wherever the words "sale" or "sell" occur in Section 7 and Section 16, we have to read the words "sale" and "sell" for the purpose of human consumption and exposed for sale. There is no justification for taking that view without doing violence to the language of these sections. The suggestion of filling in lacunae in a statutory provision in process of interpretation or reading something which is not there is to misconstrue the provision. When the legislature has, by the extended meaning of the word, "sale" included the transfer of articles of food purchased by way of sample for the purpose of analysis and made it a transaction of sale, all other considerations to determine as to whether a transaction should be one of sale or not are alien and irrelevant.

At the end, a submission was made by the Counsel for the respondent that by virtue of proviso (i) appended to Section 16(1) and the fact that the commodity was lying on the roof of the baithak and was not exposed for general sale and the small excess of lime found on analysis in the sample being not deleterious for health, a lenient view of sentence is called for. We have considered this aspect of the matter and we find that if we read that proviso along with clause (2) of definition of the word, "adulterated" given in Section 2(i), the case calls for lenient view of the sentence. According to the report of the Public Analyst, the article falls below the standard prescribed in Rule A.05.08 of the Rules and we are informed that the quantity of lime present in excess will not be injurious to health. Under the circumstances, a fine of Rs. 250/- imposed upon the respondent will meet the ends of justice.

For the reasons stated above, we allow the appeal, set aside the judgment of the trial Court and impose a fine of Rs. 250/- upon the respondent. The fine shall be deposited by the respondent within one month from today. In default of payment of fine, the respondent will undergo three months'' simple imprisonment.