JUDGMENT
B.C. Patel, J.
1. The State of Gujarat being aggrieved by the order of acquittal recorded by the learned Chief Judicial Magistrate, Palanpur in summary case no.196 of 1987 on 27.3.1991, has preferred this appeal. The respondents nos.1 and 2 (original accused nos.1 and 2) were tried for an offence under sec. 7 of the Prevention of Food Adulteration Act (“the Act” for brevity) punishable under sec. 16(1)(a)(i) of the Act.
2. Tusharbhai Dashrathbhai Bhatt, PW 1 collected a sample of peppermint as per the provisions contained in the Act and Prevention of Food Adulteration Rules (“the Rules” for brevity). The sample forwarded to the Public Analyst was found to be adulterated vide exh.30. After obtaining consent vide exh.31, the complaint came to be lodged vide exh.32. On appreciation of evidence, the trial court held that the accused are not guilty. Hence the appeal.
3. The trial court acquitted the accused on the following grounds :
(1) (i) Sanction, exh.32 nowhere indicates that either there is a prima facie case made out against the accused or filing of the prosecution is in public interest.
(ii) The prosecution has failed to establish as to how accused no.2 is concerned with business carried on in the name of “Milan Stores”. Whether he is a partner or an owner was required to be established by the prosecution. The prosecution has not produced any evidence in this behalf. The prosecution could have produced a copy of licence issued under the Act or under other statutes, such as, Municipalities Act, the provisions contained under the Sales Tax Act, etc.
(2) The trial court accepted the arguments advanced by the learned advocate on behalf of the accused that prosecution failed to forward “intimation” as contemplated under sec. 13(2) of the Act.
(3) The trial court accepted the contention that the evidence of Food Inspector is doubtful as Pancha, Kalidas Joitaram, PW 2 has not supported the prosecution and Rameshbhai Keshavbhai, Helper, PW 3, though serving with the complainant has stated that the procedure of sealing and labelling of the sample was carried out outside the shop while Panchnama was written in the shop.
4. Shri Mankad, learned Additional Public Prosecutor for the State submitted that Tushar Bhatt, Food Inspector examined by the prosecution in his evidence has described the manner in which the sample was collected. The evidence clearly reveals that the Food Inspector collected the sample, divided it into three parts, collected the same in dry and clean bottles, sealed the same as per the Rules, forwarded one bottle to the Public Analyst, who found the seals intact and on analysis found that the sample was adulterated. He submitted that this procedure was explained by him in detail and there was no reason for the learned Magistrate not to accept the evidence. He submitted that there is nothing in the evidence to point out that the Food Inspector had any grudge or enmity against the accused. There is nothing to show any bias or that on account of mala fides the sample was collected. It is submitted by the Additional Public Prosecutor that the Food Inspector in discharge of his duties has collected the sample. Therefore, the learned Magistrate ought to have accepted the evidence. When he has deposed on oath about the procedure followed by him as per rules, merely Panch has not supported is no ground for acquitting the accused.
5. Food Inspector discharges a public function in purchasing the article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. Case is to be decided on its own merits. There is no rule of law that conviction cannot be based on the sole testimony of Food Inspector. Food Inspector is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under sec. 68 of the Evidence Act to prove the execution of the will. The law has provided safeguard against any possible allegations of excess or resort to unfair means. If a Food Inspector, while collecting the samples in compliance with the rules has followed the procedure and if the sample is found to be adulterated, he is bound to take action. If it is pointed out that either the action is mala fide or with bias, the matter may be different. Under the circumstances, it is clear that the evidence of Food Inspector, if found trustworthy, can be accepted and accused can be convicted.
6. Looking to the object, it is in the interest of the prosecuting authorities concerned to comply with the provisions of the Act, the non compliance of which may in some cases result in their testimony being rejected. Conviction is not impermissible on the basis of the sole testimony of the Food Inspector. (State of U.P. v. Hanif reported in AIR 1992 SC 1121, Prem Ballab v. State (Delhi Admn.) reported in AIR 1977 SC 56, Babulal v. State of Gujarat reported in AIR 1971 SC 1277).
7. Shri Jhaveri, learned advocate appearing for the accused was not in a position to point out that the Food Inspector committed breach of any provision of the Act or the Rules while collecting the sample. However, he drew the attention of the court that the consent in the instant case does not indicate that competent authority came to the conclusion that there is a prima facie case and that prosecution is in the interest of public. In the submission of Shri Jhaveri, learned advocate for the accused it can, therefore, be said that there is non application of mind. The trial court’s expression that it is like cyclostyled, is required to be deprecated because merely on a look one can say that the sanction is a typed one, which is dated 24.10.1986. The sanction bears the seal of the office. The officer corrected the same at two places and also has put his initials. Shri Jhaveri however, stated that there is nothing to indicate from the consent that prima facie case has been made out. In the consent the Deputy Director and the Local (Health) Authority has specifically mentioned that he has examined all the papers placed before him by the Food Inspector including the report forwarded by the Public Analyst and after studying the papers carefully came to the conclusion that offence punishable under secs. 2(1)(a) read with sec. 16(1) of the Act has been committed by the accused. From this it is very clear that the competent authority was satisfied. Merely because word ‘prima facie’ is not written, it does not mean that the competent authority has not applied its mind. The other submission made by the learned counsel is that there is nothing to show that it is in public interest. After reading secs. 7 and 16 of the Act, the learned advocate was not in a position to point out that the authority must come to the conclusion that consent must be in the public interest. Similar argument was advanced before this High Court. In para 6 of the judgment in Criminal Appeal No.702 of 1990, decided on 24.8.1998 in the case of State of Gujarat v. Patira Packaging the court pointed out that :
“When an Act is enacted with a view to see that the health of public is not adversely affected, any act in contravention of the said Act is a violation, and initiation of proceedings for such violation is in the interest of the public at large as it is concerned with the health of public. there are certain offences for which it can be said that if some one acts in breach or in violation of the provisions thereof public at large will suffer and when breach is noticed, it may not be certain who would be the victims. On the other hand, there are certain offences if committed, public at large may not be the sufferer and sufferer may be one individual or more or a group of persons, i.e. act against human body, property, etc. (offences under the Penal Code). So far as the Prevention of Food Adulteration Act is concerned, if some one acts in breach or in violation of the provisions of the said Act or Rules made thereunder, public at large will always be the sufferer. In other words, it goes without saying that breach of the provisions of the Act is against the interest of public at large. The Apex Court, in the case of Jagdish Prasad v. State of W.B., Cri. App. No.50 of 1969, decided on 13.12.71, has pointed out that the offences under the Act are anti social crimes, affecting the health and well being of our people, hence a more drastic step was taken by the legislature in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence. Adulteration of food is so dangerous and wide spread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal even if the particular offence is committed with an unsuspecting means (AIR 1977 SC 435 at 438). In the circumstances, launching of prosecution for violation of breach of the provisions of the Act is in the public interest.”
Considering the decisions of the Apex Court, the object and reasons of the Act the court was of the opinion that the launching of a prosecution for breach of the provisions of the Act is always in public interest.
8. In the case of Suresh H. Rajput and others v. Bhartiben Pravinbhai Soni and others, (1996) 7 Supreme Court Cases 199, what is required to be considered. While granting sanction in para 12 of the judgment, the Apex Court has pointed out as under : “It is seen that the analysis report which was placed before the Local (Health) Authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and to consider the pros and cons of the case before granting sanction to lay prosecution against the respondents.”
9. In the instant case it is clear that the competent authority was satisfied after perusing the material placed before it and has accorded consent and therefore, the trial court gravely erred in acquitting the accused.
10. So far as the contention with regard to notice under sec. 13(2) of the Act served on the accused is concerned, it is true that accused no.1 has received the same. He also accepted another notice on behalf of accused no.2. It is under these circumstances after perusing the record Shri Jhaveri submitted that when it was received by a person other than the addressee it was the duty of the prosecution either to send notice afresh or to place material evidence on record to indicate that accused no.1 was entitled to accept registered notice on behalf of accused no.2. He submitted that there is no evidence led by the prosecution to connect accused no.2 with the business carried on by accused no.1. Merely because accused no.1 stated that he was dealing on behalf of accused no.2, blindly it cannot be accepted that he was dealing as such on behalf of accused no.2. It was for the prosecution to place on record the material evidence so as to establish that accused no.2 was the owner of the shop. If this evidence was led, only thereafter the question would arise as to whether it can be said that accused no.1 while serving in the store owned by accused no.2 in the capacity as servant has accepted service of notice or not. But when the prosecution has failed in leading sufficient evidence to establish ownership of accused no.2 or has failed to establish connection with “Milan Stores”, where accused no.1 was working and from where the sample of article of food was collected, it would not be proper to say that accused no.2 is equally guilty. But so far as accused no.1 is concerned he has received notice under sec. 13(2) of the Act, the acknowledgment of which is produced on record and the same was not challenged by accused no.1 in the cross examination. Shri Jhaveri was not in a position to point out as to how it can be said that notice under sec. 13(2) of the Act was not served on accused no.1. He is justified in making grievance so far as accused no.2 is concerned.
11. The trial court has placed reliance on the evidence of Kalidas Joitaram, PW 2, who has turned hostile. As pointed out by the Apex Court, if the evidence of the Food Inspector is acceptable there is no need to search for corroboration. The documentary evidence is there to support the say of the complainant. The Helper, Rameshbhai Keshavbhai, PW 3 has stated that he assisted the Food Inspector in completion of the procedure from the beginning to the end. There is nothing in his evidence to point out that the procedure has not been followed. On the contrary, if his evidence is read, it becomes clear that the procedure as laid down in the rules had been followed. Merely because he stated that when Panchnama was being recorded in the shop, he was outside the shop, his evidence cannot be rejected. In view of what is stated hereinabove it is clear that the prosecution has established by leading sufficient evidence to show that accused no.1 sold peppermint to the Food Inspector, which was adulterated. It contained Non Permitted Rhodamine ‘B’ coal tar colour, as also some permitted colours. The sample is declared adulterated because non permitted colour has been added in the same.
12. Under the aforesaid circumstances it can be said that when accused no.1 sold the article of food to the Food Inspector, accused no.2 was not found present at the time when the sale took place and prosecution has led no evidence to show that he was the owner of the shop or in any way concerned with the shop, he, therefore, cannot be held guilty. So far as accused no.2 is concerned the judgment requires to be confirmed. So far as accused no.1 is concerned the judgment requires to be quashed and set aside as accused no.1 is held guilty for an offence punishable under sec. 16(1)(a)(i) read with sec. 7 of the Act.
13. When the court is imposing minimum sentence as provided under the Act there is no question of hearing the accused on the sentence. However, with a view to give an opportunity to accused no.1, the matter is adjourned to 13.10.1998.
08.12.1998
14. As the process of notice could not be served on respondent no.1, this matter was adjourned on various occasions. Ultimately the process was served and the accused – respondent no.1 remained present before the court today, i.e. 8.12.1998
15. Mr. Jhaveri, learned advocate has filed an affidavit which is sworn by Gangaram Khanmal Sindhi, respondent no.1 herein. In the affidavit, he has stated that he left the services of respondent no.2 from December 1988 and is doing labour work at Deesa. He has further stated that he has to maintain a family of five persons. Mr.Jhaveri, learned advocate submitted that considering the above facts and the fact that this matter is being heard after a long interval, a lenient view may be taken. He further submitted that the respondent no.1 was not personally interested in dealing in the goods, but he was merely working as an employee.
16. It is under these circumstances the accused is sentenced to undergo simple imprisonment for a period of six months and is also sentenced to pay a fine of Rs.1000/- (Rupees one thousand only), in default of payment of fine the accused is sentenced to undergo fifteen days simple imprisonment for an offence punishable under sec. 16(1)(a)(i) of the Act. The accused is granted four weeks time to pay fine. The accused is also granted four months time to surrender, but shall deposit the amount of fine in the trial court within four weeks from today.
17. In view of this Shri Jhaveri, learned advocate submitted that as the appellant was an employee and is no longer engaged in the food articles, the court should suspend the sentence with a view to enable the accused to make an application for remission.
18. One has to also look at the object of the Act and the purpose of the Act. The object and purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislature has provided minimum punishment. The Act is enacted to curb the wide spread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief and evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio economic offence. The construction appropriate to a social defence legislation is, therefore, one which would suppress the mischief aimed by the legislation and advance the remedy. The offences under the Act are really acts prohibited by the police powers of the State in the interest of public health and well being. The prohibition is backed by the sanction of a penalty. The offences are strict statutory offences. Intention or mental state is irrelevant. (Paras 7 and 8 of AIR 1989 SC 1022, Dineshchandra).
19. Shri Jhaveri, learned advocate drew the attention of the Court to a decision of the Apex Court in the case of Badri Prasad v. State of MP, 1995 (Suppl.) 4 SCC 682, wherein the Apex Court gave an opportunity to the appellant to approach the State Government under subclause (d) of sec. 433 of Code of Criminal Procedure for conversion of simple imprisonment to fine. In that case the appellant was on bail all through out. Shri Jhaveri, learned advocate submitted that in the instant case the appellant has been acquitted by the Court and looking to 13 years period, now he should not be sent to Jail, more particularly when he was a petty trader and is a labourer today. He invited attention of the Court to a reported decision in the case of N. Sukumaran Nair v. Food Inspector, 1997 (9) SCC 101. In that case offence was committed in 1984. The High Court set aside the order of acquittal and sentenced the accused to undergo simple imprisonment of six months and to pay a fine of Rs.1000/-. The Apex Court in that case held that this would be an appropriate case for commutation of sentence when at least a decade has gone by. The Court directed the appellant to deposit a sum of Rs.6000/- in the trial court as fine for commutation of sentence of simple imprisonment within the period of six weeks from the date of judgment and also to intimate to the appropriate Government that such a fine has been deposited.
20. The Apex Court in the case of Ganeshmal Jashraj v. Govt. of Gujarat reported in AIR 1980 SC 264 observed as under [referred in para 14 in the case of Dineshchandra (supra)] :
” .. .. It is common knowledge that these small tradesmen purchase the food stuff sold by them from the wholesalers and some times even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers. Ordinarily, it is not the small retailers who adulterate the articles of food sold by them. Yet it is only the small retailers who are caught by the food inspectors and the investigative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesman who eke out a precarious existence living almost from hand to mouth are sent to jail for selling food stuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law. .. ..”
21. In the said paragraph, the Apex Court also quoted the following paragraph from the decision reported in AIR 1979 SC 1867, where His Lordship Krishna Iyer, J. said :
” .. We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders. .. ..” Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principles basis when small men get caught by the law.
22. Mr. Mankad, learned Additional Government Pleader submitted that the accused should not be granted any benefit. He submitted that one who deals in article of food must take all necessary care as required under the Act and Rules. He submitted that these vendors are really suppressing the wrong doers by not disclosing the name of the manufacturer, distributor or dealer. Vendors are ultimately supplying food article to the public at large and therefore, if they supply adulterated food, they should face the consequences. It is not a defence in a prosecution of an offence pertaining to sale of any adulterated article of food to allege that the vendor was ignorant of the nature, substance or quality of food sold by him or the purchaser would not be prejudiced by the sale. Care is required to be taken by vendors while purchasing the article of food.
23. In the instant case the accused was dealing in the articles of food, which are required day to day by human beings. However, it is not the prosecution case that he was the owner of a shop but was working with a small trader, and a period of more than 11 years having lapsed, it would be for the State Government to decide the question of remission. Without treating this case as a precedent, in the peculiar facts and circumstances of the present case, the sentence of imprisonment is suspended for a period of four months, to enable the accused no.1 to make an application to the State Government for remission of sentence of imprisonment, which the accused no.1 shall make within a period of one month from today. The State Government shall decide and communicate its decision to accused no.1 within four months from the receipt of the application taking into consideration the observations made by this court and the Apex Court as referred to in this judgment, the cases reported in 1995 (4) SCC 682 and (1997) 9 SCC 101, the fact that more than 11 years lapsed and the accused was an employee of a vendor. ]