AI Structured Summary
Not yet generated for this judgment
Judgment
M.N. Moorthy, J.—This appeal is preferred by the State against the order of the learned Sub-Divisional Judicial Magistrate, Dindigul,
passed in C.C. No. 167 of 1976 acquitting the accused who were charged under Ss. 7(i) and 16(i)(a)(i), read with S. 2(i)(a)(i) of the Prevention
of Food Adulteration Act.
The facts of the case are within a narrow compass. P.W. I is the Food Inspector of Dindigul. According to him on 29th December, 1975 at
about 11a.m., in West Car Street, Dindigul, Al was found in possession in his grocery shop turmeric powder for sale. P.W. I served Form VI
notice, Ex. Pl on Al and purchased six packets of pure turmeric powder on payment of Rs. 3.60 under receipt, Ex. P2. He divided the quantity
into three equal parts. He handed over one sample to Al and got his acknowledgment, Ex. P3. One sample was sent to the Public Analyst.
According to the Public Analyst''s report, Ex. P4, the sample contains 149 parts of lead chromate per million parts and the consumption of
turmeric containing excessive amount of lead chromate is likely to cause grave danger to public health as lead is a cumulative poison. A copy of Ex.
P4 was handed over to Al by P.W. 1. One of the packets from which the sample was taken is Ex. P6. A1 had made an endorsement to the effect
that the sample was taken from the said packet which is marked as Ex. P7. P.W. I laid the complaint against Al.
When Al was examined on the evidence of P.W. I, be stated that he purchased the turmeric powder from one Ragavalu Chettiar & Sons of
Coimbatore and sold the same in his shop and he did not know the contents of the powder and P.W. I took sample from that powder in his shop.
He examined two witnesses on his behalf. D.W.I is the Sales Representative of C.B. Ragavelu Chettiar & Sons, Coimbatore. He admitted that he
delivered the turmeric powder to A1 on 20th December, 1975 and Ex. Dl is the guarantee certificate. He spoke about the letter of Al to his
company and the reply thereto by his company. Ex. D6 cover relates to his company. Al examined himself as D.W.2. According to him, he
purchased the turmeric powders from C.B. Ragavalu Chettiar & Sons, Coimbatore, through D.W.I and he explained the fact to P.W. 1 at the time
of taking sample and showed the guarantee letter and also affirms he sold the powder in his shop without tampering the packets delivered by
D.W.I.
At this stage of the trial of the complaint against Al, a memo was filed on behalf of the State that the manufacturers of the turmeric powder
should be included as co-accused. As D.W.I has spoken to the warranty given to Al by his company under Ex. Dl, and as Al claimed that he had
not tampered with the packets delivered by A1 by virtue of S. 20(A) of the Prevention of Food Adulteration Act, read with S. 319, Cr. P.C. the
memo filed by the Asst. Public Prosecutor. It on behalf of the State was allowed by the learned Magistrate and the manufacturers, namely, C.B.
Ragavalu Chettiar & Sons, Coimbatore, were impleaded as co-accused, A2 to A5. The trial proceeded again.
A copy of the complaint was furnished to the accused and P.W. I was examined again. He was duly cross examined and the accused examined
D.W.I, the Sales Representative, and D.W.2, Al himself. They gave evidence in identical terms as already given by them at the first instance.
P.W. 1 has stated that, after he purchased six packets of turmeric powder from Al, he opened the packets and weighed it. One of the packet
labels is Ex. P6. It contains the words, ''pure turmeric powder of 100 gms'', and the manufacturers are C.B. Ragavalu Chettiar & Sons,
Coimbatore. The learned Magistrate commented that, if Ex. P6 was one of the packets belonging to C.B. Ragavalu Chettiar & Sons, P.W. 1
ought to have sent Ex. P6 along with the sample to the Public Analyst for examination and report. He further says, there is no acceptable evidence
in this case that Ex. P6 was sent by P.W. 1 to the Analyst along with the sample. The learned Magistrate overlooked Ex. P10, covering letter from
Chemical Examiner, which shows that the empty packet was sent to him along with the sample bottle No. 933 on 29th December, 1975.
P.W. 1 in his statement has stated that the first accused himself had made an endorsement, Ex. P7 for having taken turmeric powder from the
packet, Ex. P6. Al himself has admitted in his evidence that he has given the turmeric powder in Exs. P6 and P8 series covers to P.W. I. In his
letter, Ex. DU to C.B. Ragavalu Chettiar & Sons, Al has mentioned that the packets of turmeric powder purchased from them were taken by the
Food Inspector, P.W. 1 for analysis. On the materials placed before the learned Magistrate he is not justified in holding that Ex. P6 cover was not
sent to the Analyst. His finding of acquittal is mainly based on the erroneous reading of this aspect of the prosecution case.
The Learned Counsel appearing for the accused has raised a number of points. Firstly, he contended that in the proceedings originally started
against Al, the complaint filed mentions only Exs. PI to P4 and the later exhibits marked by the prosecution are, according to him, an afterthought.
In Ex. PI form VI notice, no name of the company C.B. Ragavalu Chettiar and Sons is mentioned. In Ex. P2 receipt it is not mentioned that the
turmeric powder belonged to the company of accused 2 to 5. In Ex. P4 report also, no reference is made to the company of accused 2 to 5. He
further contends that Ex. P6 empty cover which contains printed letters ''pure turmeric powder'' came at a later stage, He finally brought to my
notice that even in Exs P9 and P10 no reference is made to the name of the said company.
The learned Public Prosecutor countered the argument of the Learned Counsel for the defence by stating that when the complaint was originally
filed against Al, naturally documents relating to the complicity of Al alone were filed Later, when A2 to A5 were impleaded as accused, it was the
bounden duty of the prosecution to file the other documents as well to prove the case against all the accused. There is considerable force in the
learned Public Prosecutor''s contention. It cannot be countenanced if the case of the defence is that the documents filed by the prosecution at a
later stage were brought into existence to prove the case against all the accused. Hence, I hold there is nothing sinister about the additional exhibits
marked by the prosecution. In fact, P.W. 1 has spoken about Exs. P6 and P7 even when he was examined with reference to the case against the
first accused alone. He emphatically denied, in his subsequent examination, the defence suggestion that Exs. P6 to P8 were prepared later and filed
in Court in order to save Al- P.W. 1 has spoken to the fact that Al had made an endorsement Ex. P7 for having taken turmeric powder from his
shop. As mentioned before, from the letter written by Al to C. B. Ragavalu Chettiar & Sons under Ex, D 11 and also from his statement, as a
defence witness, it is clear that turmeric powder in Exs. P6 to P8 series covers were given to P.W. 1. Thus there is no question of any
development of these exhibits on the side of the prosecution.
It is seen that the sample from Al''s shop has been taken on 29th December, 1975. This sample of turmeric powder has been supplied by
D.W. 1 a representative of C. B. Ragavalu Chettiar & Sons, under guarantee letter, Ex. Dl. The receipt for the purchase of 50 packets weighing
100 grams each is marked as Ex. D2. The guarantee letter, Ex. Dl was shown by Al to P.W. 1. Next day, A1 wrote a letter to the said company
under Ex. D 11 stating that the turmeric powder packets supplied to him by them were taken for analysis purposes. Accused 2 to 5 company
replied to Al under Ex. D5 the next day itself stating that there would not be any adulteration in the turmeric powder packets supplied by them. It is
also in the evidence of P. W. 1 that Al was not in possession of turmeric powder, other than the ones manufactured and supplied by C.B.
Ragavalu Chettiar and Sons. Under these circumstances, Al cannot be made liable for the alleged adulteration in the turmeric powder. The learned
Public Prosecutor also concedes that Al cannot be made liable. Hence, as far as Al is concerned, the appeal by the State is dismissed.
A5 is implicated as an accused in his capacity as the Manager of C.B. Ragavalu Chetiar & Sons, Coimbatore. A5 in his statement denies that
he is the Manager in that concern and states that he has no connection whatsoever in the said company. A2 in his statement states that A5 is not
the Manager of the company. There is no evidence to show that A5 is the Manager of the said company. Hence, as far as A5 is concerned, the
appeal against acquittal against him is dismissed.
As far as accused 2, 3 and 4 are concerned, they are prosecuted in their capacity as partners of C.B. Ragavalu Chettiar & Sons, Coimbatore.
Accused 2 to 4 in their separate statements stated that each of them alone with the other two were partners of the said company and that A2 was
in charge of the day-to-day administration of the company. Thus, on their own admissions, it is clear that accused 2 to 4 were partners of the said
company and that A2 was looking after the day to day administration.
The Learned Counsel for the accused argued that, apart from the admission of the accused 2 to 4 that they were the partners of the company
and that A2 was in charge of day-to-day administration, there is nothing on evidence to that effect. He contended that the questions regarding this
aspect should not have been put to the accused in their examination.
In support of the contention, the Learned Counsel cited before me the decision in G.N. Subba Rao and Others Vs. Anna M.
Venkatachalapathi Aiyar, wherein the learned Judge held that where there is no evidence on the prosecution side to the effect that the accused had
signed the petition of defamation the gap in the prosecution cannot be filled by examining the accused persons under S. 342, Crl. P.C. and
obtained as admissions.
He next cited the decision in State Government, Madhya Pradesh v. Seth Parasmal, ILR 1952 7 Nag 125. wherein the learned Judge held that
in the absence of any circumstance appearing against the accused in the prosecution evidence, putting of a question as regards such matter to the
accused by way of examination under, S. 342, Crl. P.C. is not at all warranted and that even if in reply to such a question the accused makes an
admission such admission cannot be used against him and must be ignored.
The next decision cited by the Learned Counsel is Emperor v. Kuppammal 1940 M.W.N. 149 wherein the learned Judges held that the
prosecution must make out the charge by evidence adduced by it, and it cannot rely on answers given by the accused during interrogation by Court
or Magistrate to fill up gaps in the case.
The last decision cited by the Learned Counsel is Bhima Shaw and others v. The State, AIR 1956 Ori 176 wherein the learned Judges held
that when the prosecution has not let in evidence to show that certain specified articles were recovered from the house of the accused, it will not be
proper for the Court to ask the accused whether the articles were so recovered and to account for their presence in his house. They further held
that such a question is misleading and even if the accused in his answer to that question admits the recovery of the articles that answer cannot be
taken into consideration as substantive evidence of the recovery of those articles.
The above decisions are placed on the assumption that there is no evidence on record to show that A2 to A4 are partners of C.B. Ragavalu
Chettiar & Sons, Coimbatore. Originally, proceedings were initiated against Al. Subsequently, because of the revelation that C.B. Ragavalu
Chettiar & Sons was also involved accused 2 to 4 along with A5 were also impleaded. It is in the evidence of P.W. I that accused 2 to 4 are
partners of the said company. He makes it clear in his cross-examination that on enquiring A2 he came to know that accused 2 to 4 are partners of
the company. A specific suggestion has been put to him in cross examination whether he was not aware A2 was looking after C.B. Ragavalu
Chettiar and Sons to which he replied that he was not aware. D.W.I who is none other than the Sales Representative of C.B. Ragavalu Chettiar &
Sons, admits that though accused 2, 3 and 4 are partners of the company, A2 is the person who is looking after the daily administration. Thus, the
prosecution has let in evidence to show that accused 2 to 4 are partners of C.B. Ragavalu Chettiar and Sons, Coimbatore. The questioning of the
accused on this aspect is very well justified. It is absolutely necessary to put to the accused each material fact which is intended to be used against
them and give them an opportunity to explain the same if they can. Under S. 313, Crl. P.C. the accused are given an opportunity to explain the
case against them and their statements can be taken into consideration in judging the innocence or guilt of the persons so accused. In the instant
case, the statements of the accused were not meant to show that they had done anything wrong and they certainly were not intended as admission
of commission of any offence. The decisions cited by the Learned Counsel for the accused do not in my view apply to the facts of the present
case.
In the instant case, the taking of sample by P.W. I from Al''s shop on the relevant date, the observing of the necessary formalities by P.W. I
and the report of the Public Analyst are all not disputed. It is clear from the evidence of P.W. I that there was no other turmeric powder packet in
Al''s shop, except those supplied by C.B. Ragavalu Chettiar & Sons. The Public Analyst has found that the sample contains 149 parts of lead
chromate per million parts which if consumed, is likely to cause grave danger to public health in as much that the as lead is a cumulative poison. In
these circumstances, I hold offence under the Prevention of Food Adulteration Act is made out by the prosecution.
The learned Public Prosecutor brings to my notice a decision reported in Smt. Manibai and Another v. State of Maharashtra AIR 1974 S.C.
435 wherein their Lordships of the Supreme Court held that, even if the business was owned by a firm or an association of individuals and a
particular person was a partner of the firm or a member of the association, that particular person would not be liable for the sale under S. 17(1) of
the Act if he is not in charge of or responsible for the conduct of the business. This decision would apply in all force to the case of accused 3 and
Hence, I am constrained to dismiss the State appeal against acquittal of accused 3 and 4.
Regarding A2, apart from his own admission there is proof that he is the person in charge of day-to-day administration of the company and
that he is responsible for the conduct of the business. Hence, he is liable to be convicted for an offence under Ss. 7(1) and 16(i)(a)(i) read with S.
2(i)(a)(1) of the Prevention of Food Adulteration Act, in-as-much as the turmeric powder supplied by his company on analysis by the Public
Analyst, is found to contain 149 parts of lead chromate per million parts. It is further stated in the Analyst''s report, Ex. P4 that the consumption of
turmeric containing excessive amount of lead chromate is likely to cause grave danger to public health as lead is a cumulative poison. For the
foregoing reasons, the State appeal against the acquittal of the second accused is allowed. He is convicted of the offence under Ss. 7(i) and 16(1)
(a)(i) read with S. 2(1)(a)(i) of the Prevention of Food Adulteration Act. This offence having taken place in the year 1975 and as I am interfering
with an order of acquittal, I think the ends of justice would be met if I sentence the second accused to pay a fine of Rs. 2,000 (Rupees Two
thousand only) in default to suffer rigorous imprisonment for nine months, and it is ordered accordingly. Time for payment of fine is one month.
In the result, the State appeal as against accused 1, 3, 4 and 5 is dismissed, and as far as the second accused is concerned, it is allowed.