{"id":134386,"date":"1965-02-08T00:00:00","date_gmt":"1965-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangaldas-raghavji-ruparel-anr-vs-the-state-of-maharashtra-anr-on-8-february-1965"},"modified":"2018-04-03T12:14:51","modified_gmt":"2018-04-03T06:44:51","slug":"mangaldas-raghavji-ruparel-anr-vs-the-state-of-maharashtra-anr-on-8-february-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangaldas-raghavji-ruparel-anr-vs-the-state-of-maharashtra-anr-on-8-february-1965","title":{"rendered":"Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on 8 February, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on 8 February, 1965<\/div>\n
Equivalent citations: 1966 AIR 128, \t\t 1965 SCR (2) 894<\/div>\n
Author: M R.<\/div>\n
Bench: Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Mudholkar, J.R., Sikri, S.M.<\/div>\n
           PETITIONER:\nMANGALDAS RAGHAVJI RUPAREL & ANR.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MAHARASHTRA & ANR.\n\nDATE OF JUDGMENT:\n08\/02\/1965\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1966 AIR  128\t\t  1965 SCR  (2) 894\n CITATOR INFO :\n R\t    1970 SC 318\t (5)\n R\t    1970 SC 366\t (5)\n F\t    1971 SC1725\t (15)\n RF\t    1980 SC 538\t (11)\n\n\nACT:\nPrevention  of\tFood  Adulteration  Act\t (37  of  1954)\t ss.\n2(xiii),  7(v),\t 10, 11, 13(5), 16(1) (a)  and\t19(1)-Public\nAnalyst-Report of-If Sufficient for conviction when  analyst\nnot  examined-Mens  rea-If  prosecution\t should\t  establish-\nCompulsory sale of sample to Food Inspector-if \"sale\"  under\nAct.\n\n\n\nHEADNOTE:\nThe  three appellants were a wholesale dealer in  spices,  a\ndealer\tin  groceries, and his\tservant\t respectively.\t The\nsecond appellant purchased a bag of turmeric powder from the\nfirst and the third appellant took delivery of it on  behalf\nof  the second appellant, his master.  Immediately after  it\nwas taken delivery of, the food inspector purchased from the\nthird  appellant some turmeric powder contained in that\t bag\nfor the purpose of analysis, and after issuing notice to the\nthird  appellant as required by s. 1 1 of the Prevention  of\nFood  Adulteration Act, 1954, sent a portion of\t the  powder\npurchased  to the public analyst, who gave a report that  it\nwas  adulterated  food.\t  The  three  appellants  were\tthen\nprosecuted  under ss. 6(1) (a) read with s. 7(v) of the\t Act\nand  convicted\tby  the\t Magistrate.   The  conviction\t was\nconfirmed by the High Court.  In the appeal to this Court it\nwas contended that, (i) the report of the public analyst, by\nitself was not sufficient to sustain the conviction, and the\npublic\tanalyst should have been called as a  witness,\t(ii)\nthe  report  of\t the public analyst could  not\tbe  used  as\nevidence against a person who was not given notice under  s.\n11  of\tthe  Act, (iii) the first  appellant  could  not  be\nconvicted without establishing that he had the mens rea, and\n(iv)  the  taking  of  the sample under\t s.  10\t by  a\tfood\ninspector, was not a \"sale\" within the meaning of s. 2(xiii)\nand therefore s. 7(v) of the Act was not infringed.\nHELD : (i) Section 13(5) of the Act, makes the report of the\npublic analyst admissible in evidence and a Court of fact is\nfree to act on it or not, as it thinks fit.  The Court could\ntherefore legally act solely on the basis of the report\t and\nthe prosecution Could not fail on the ground that the public\nanalyst\t was  not  called as a witness.\t  If  the  appellant\nwanted the analyst to be examined, it was for the  appellant\nto take appropriate steps. [900 F; 902 C-D]\n(ii)The law requires notice under s. 11 to be given only to\nthe person from whom the sample was taken and none else.  If\nthat formality had been complied with and the report of\t the\nanalyst\t is  placed  on record at the  trial,  it  would  be\nadmissible against all the accused persons. [902 H-; 903 C]\n(iii)The word \"vendor\" in s. 19(1) means the person who\nhad  add  the  article\tof food\t which\twas  alleged  to  be\nadulterated.   At  one stage, the first\t appellant  was\t the\nvendor\tof the turmeric powder.\t Since the section  deprives\nthe  vendor  of adulterated food of the\t defence  of  merely\nalleging  that he was ignorant of the nature,  substance  or\nquality\t of the article of food sold by him- the  burden  of\nshowing that he had no mens rea to commit the offence  would\nbe upon the first appellant. [904 B-D]\nState of Maharashtra v. Mayer Hans George,<\/a> [1965] 1  S.C.R.,\n123 followed.\n895\n(iv)The\t definition  of \"sale\" in s. 2(xiii)  of  the  Act,\nspecificallY includes within its ambit a &,de for  analysis.\nThe  transaction  in the instant can would  amount  to\tsale\ninspite\t of the fact that where a person is required by\t the\nfood inspector to sell him a sample of a commodity, there is\nan  element of compulsion under s. 10 of the Act.   L906  H]\nSarjo  Prasad v. State of U.P., [1961] 3 S.C.R. 324,  M.  Y.\nJoshi v. M.    U.  Shimpi,<\/a> [1961] 3 S.C.R. 986 and State  of\nUttar  Pradesh\tv.  Kartar Singh,  A.I.R.<\/a>  1964\t S.C.  1135,\nreferred  to. Food Inspector v. Parameswaran, [1962]  1\t Cr.\nL.J. 652, overruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 113  of
\n1963.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nApril 19, 1963, of the Bombay High Court in Criminal  Appeal
\nNo. 988 of 1962.\n<\/p>\n
V.B. Ganatra and I. N. Shroff, for the appellant (Cr.  A.
\nNo. 57 of 1963).\n<\/p>\n
Frank  Anthony,\t E. C. Agarwala and P. C. Agrawal,  for\t the
\nappellant (in Cr.  A. No. 113 of 1963).\n<\/p>\n
S.G. Patwardhan and B. R. G. K. Achar, for the respondent
\nState (in both the appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nMudholkar,  J.\tThis appeal and Criminal appeal\t No.  113\/63
\narise  out of a joint trial of the appellant  Mangaldas\t and
\nthe two appellants Daryanomal and Kodumal in Crl.  A. 113 of
\n1963  for the contravention of s. 7(v) of The Prevention  of
\nFood Adulteration Act, 1954 (hereinafter referred to as\t the
\nAct)  in which they were convicted and sentenced  tinder  s.
\n16(1)  (a)  of\tthe  Act.   The\t appellants  Mangaldas\t and
\nDaryanomal were each sentenced under S. 16 ( 1 ) (a) (ii) of
\nthe Act to undergo rigorous imprisonment for six months\t and
\nto  pay\t a  fine of Rs. 500 while the  other  appellant\t was
\nsentenced under sub-cl (1) to undergo imprisonment until the
\nrising of the Court and to pay a fine of Rs. 200.  On appeal
\nthey  were all acquitted by the Additional  Sessions  Judge,
\nNasik.\tThe State preferred an appeal before the High  Court
\nof Bombay which allowed it and restored the sentences passed
\non Mangaldas. and Daryanomal by the Judicial Magistrate\t but
\nimposed\t only a fine of Rs. 200 on Kodumal.  They have\tcome
\nup to this Court by special leave.\n<\/p>\n
The  admitted  facts are these.\t Mangaldas  is\ta  wholesale
\ndealer,\t   Commission\tagent,\t exporter,   supplier\t and
\nmanufacturer  of various kinds of spices doing\tbusiness  at
\nBombay.\t Dayanomal is engaged
\n896<\/span>
\nin  grocery business at Nasik while Kodumal is his  servant.
\nOn  November 7, 1960 Daryanomal purchased from\tMangaldas  a
\nbag  of\t haldi (turmeric powder) weighing 75 kg.  which\t was
\ndespatched  by the latter through a public carrier.  It\t was
\nreceived  on behalf of Daryanomal at 11.45 A.M. on  November
\n18,   1960   by\t Kodumal  at  the  octroi  post\t  of   Nasik
\nMunicipality.\tAfter he paid the octroi duty to  the  Nasik
\nMunicipality and took delivery of the bag the Food Inspector
\nBurud purchased from him 12 oz. of turmeric powder contained
\nin  that bag for the purpose of analysis.  The procedure  in
\nthis  regard  which  is laid down in S. 11 of  the  Act\t was
\n:followed  by Burud.  A portion of the turmeric\t powder\t was
\nsent  to the Public Analyst at Poona, whose report  Ex.\t 16,
\nshows  that the turmeric powder was adulterated food  within
\nthe meaning of s. 2 (1) of the Act.  Thereupon Burud,  after
\nobtaining  the\tsanction  of the Officer of  Health  of\t the
\nMunicipality,  filed (a complaint against the appellants  in
\nthe  court of the Judicial Magistrate for offences under  s.
\n16(1)  (a)  read  with s. 7(v) of the  Act.   At  the  trial
\nKodumal\t admitted that he had taken delivery of the  bag  at
\nthe  octroi post and sold 12 oz. of turmeric powder  to\t the
\nFood  Inspector and that he had also received a notice\tfrom
\nhim  under s. 11 of the Act.  It was contended at the  trial
\non  behalf of Daryanomal that actually no delivery had\tbeen
\ntaken but that point was not pressed before the High  Court.
\nWhile Mangaldas admitted that he had sold and despatched the
\nbag  containing turmeric powder he contended that  what\t was
\nsent was not turmeric powder used for human consumption\t but
\nwas  “Bhandara” which is used for religious purposes or\t for
\napplying  to the forehead.  This contention was rejected  by
\nthe Judicial Magistrate as well as by the High Court but was
\nnot  considered\t by the Additional Sessions Judge.   It\t was
\nsought\tto  be challenged before us by Mr.  Ganatra  on\t his
\nbehalf but as the finding of the High Court on the point  is
\nupon  a question of fact we did not permit him to  challenge
\nit.\n<\/p>\n
We  will take Mangaldas’s case first.  Mr. Ganatra had\tmade
\nan  application\t on his behalf for raising a number  of\t new
\npoints,\t including  some  alleged  to  raise  constitutional
\nquestions.  At the hearing, however, he did not seek to urge
\nany   question\t involving   the   interpretation   of\t the
\nConstitution.  The new points which he ‘Sought to urge were:\n<\/p>\n
\t      (1)   that  the appellant was  not  questioned
\n\t      regarding the report of the Public Analyst;
\n\t      (2)   the\t joint trial of Mangaldas  with\t the
\n\t      other two appellants was illegal; and
\n\t      (3)   that the sanction was not valid.\n<\/p><\/blockquote>\n
897<\/span><\/p>\n
As regards the first of these points his contention is\tthat
\nhe  had raised it before the High Court also though  it\t has
\nnot referred to in its judgment.  The High Court has  stated
\nclearly\t that  all the points raised in argument  before  it
\nwere  considered  by it.  In the face of this  statement  we
\ncannot allow the point to be urged before US.
\nAs regards the second point it is sufficient to say that  it
\nwas not raised before the Magistrate.  Section 537(b) of the
\nCode  of  Criminal  Procedure  provides\t that  no  judgment,
\nconviction or sentence can be held to be vitiated by  reason
\nof  misjoinder of parties unless prejudice has\tresulted  to
\nthe  accused  thereby.\tFor determining whether\t failure  of
\njustice\t  has  resulted\t the  Court  is\t required   by\t the
\nExplanation  to s. 537 to have regard to the fact  that\t the
\nobjection had not been raised at the trial.  Unless it is so
\nraised\tit would be legitimate to presume that\tthe  accused
\napprehended no prejudice.  The point thus fails.
\nAs  regards  the  alleged  invalidity  of  sanction  it\t  is
\nsufficient  to point out that the contention was not  raised
\nin  the\t High Court or earlier.\t We, therefore,\t decline  to
\nconsider it.\n<\/p>\n
Mr.  Ganatra urged that the trial court had no\tjurisdiction
\nto try the appellant as the appellant had not committed\t any
\noffence within its jurisdiction.  With regard to this  point
\nthe  High Court has held that Mangaldas had distributed\t the
\ncommodity  within  the jurisdiction of the  Magistrate\tand,
\ntherefore,  the\t Magistrate  had jurisdiction  to  try\thim.
\nApart  from that we may point out that under S. 182  of\t the
\nCode of Criminal Procedure where it is uncertain in which of
\nthe  local  areas  an offence was  committed  or  where\t the
\noffence is committed partly in one local area and partly  in
\nanother\t or  where  an\toffence\t is  a\tcontinuing  one\t and
\ncontinues  to be committed in more local areas than  one  or
\nwhere  it consists of several acts done in  different  local
\nareas,\tit may be inquired into or tried by a  Court  having
\njurisdiction over any of such local areas.  Since  Mangaldas
\nactually sent the bag from Bombay to Nasik he could be\tsaid
\nto have committed the offence partly in Bombay from where it
\nwas  despatched\t and partly in Nasik to which place  it\t had
\nbeen  consigned.  Apart from that, the mere fact  that\tpro-
\nceedings  were taken in a wrong place would not vitiate\t the
\ntrial  unless it appears that this has occasioned a  failure
\nof  justice (see S. 531, Cr.  P. C.). Mr. Ganatra,  however,
\nsays that there was failure of justice in this case  because
\nhad Mangaldas been prosecuted at Bombay, one of the  samples
\ntaken  from the bag of turmeric powder would have been\tsent
\nto  the\t Public\t Analyst at Bombay and\tnot  to\t the  Public
\nAnalyst at Poona.  We are wholly
\n898<\/span>
\nunable\tto  appreciate how this could  make  any  difference
\nwhatsoever.  Apart from that since the samples were actually
\ntaken at Nasik the one meant for analysis had, according  to
\nan administrative order of the Government, to be sent to the
\nPublic\tAnalyst at Poona.  Therefore, even if Mangaldas\t had
\nbeen  tried at Bombay tile report of the Public\t Analyst  at
\nPoona could be put in evidence.\t There is nothing in the Act
\nwhich prevents that from being done.\n<\/p>\n
In  view  of  the  fact that the  finding  of  the  Judicial
\nMagistrate  and the High Court that the turmeric powder\t had
\nbeen  adulterated  was\tbased solely on the  report  of\t the
\nPublic Analyst, Mr. Ganatra raised three contentions  before
\nus.   One is that such evidence is not by itself  sufficient
\nfor the conviction of an accused person; the second is\tthat
\nthe  Public Analyst was not called as a witness in the\tcase
\nand  the third is that unless notice is given to an  accused
\nperson under s. 11 of the Act after a sample had been  taken
\nof  the\t allegedly adulterated commodity the report  of\t the
\nPublic\tAnalyst concerning that commodity is not  admissible
\nagainst him.\n<\/p>\n
In  support of the contention that the conviction could\t not
\nbe  based solely upon the report of the Public Analyst\tthat
\nthe turmeric power was adulterated.  Mr. Ganatra relied upon
\nthe decisions in State v. Bhausa Hanmatsa Patwar(1) and City
\nCorporation Trivandrum v. Antony (2) . The first of these is
\na case under the Bombay Prohibition Act, 1949 (Bombay XXV of
\n1949).\tIn that case a large quantity of angurasava,  partly
\ncontained   in\ttwo  barrels  and  partly  in  three   boxes
\ncontaining  109 bottles was recovered from the house of\t the
\naccused\t person.  Samples taken from the barrels  and  boxes
\nwere  sent for analysis to the Chemical Analyser and to\t the
\nPrincipal, Podar Medical College, Bombay.  The report of the
\nformer\tshowed that three out of the four samples  contained
\nalcohol\t in  varying  degrees.\tThereupon  the\taccused\t was
\nProsecuted  for offence-, under ss. 65, 66(b) and  83(1)  of
\nthe  Bombay  Prohibition  Act.\t His  defence  was  that  he
\nmanufactured  a medical preparation called angurasava  which
\ncontained  Ayurvedic  ingredients which\t generated  alcohol.
\nAccording  to him, therefore, what was seized from  him\t was
\noutside\t the  orbit of the Bombay Prohibition  Act.   Partly
\nrelying\t upon  the certificate issued by  the  Principal  of
\nPodar  Medical College, the trying Magistrate acquitted\t the
\naccused holding that the Prosecution failed to discharge the
\nonus  of  proof that angurasava was prohibited\tliquor.\t  On
\nappeal\tby  the State of Maharashtra before the\t High  Court
\nreliance  was  placed upon the certificates  issued  by\t the
\nChemical Analyser as well as by the Principal, Podar Medical
\nCollege.  The certificate of
\n(1)  [ 1962] Bom.  L.R. 303.\n<\/p>\n
(2) I.L.R. [1962] 1 Kerala 430.\n<\/p>\n
899<\/span><\/p>\n
the  former  showed  that  three out  of  the  four  samples
\ncontained  “2.2\t and  6\t per  cent  v\/v\t of  ethyl   alcohol
\nrespectively   and  they  contain  yeast.    No\t  alkaloidal
\ningredient  or\tmetallic poison was detected in\t them.\t The
\ncertificate of the Principal of the Podar Medical College is
\nas follows
\n\t      “Formula\tsupplied is found to be\t similar  to
\n\t      that given in the Ayurvedic Books.  There\t are
\n\t      no  easy methods to find out the herbal  drugs
\n\t      dissolved in a liquid.  It is not possible for
\n\t      us,  to find out the herbal drugs used in\t the
\n\t      above  liquids.  The colour and smell  of\t the
\n\t      samples  supplied\t is not identical  with\t the
\n\t      colour   and  smell  of  fermented   Ayurvedic
\n\t      preparation like, Assam and Arishta.  Hence it
\n\t      is very difficult to give any definite opinion
\n\t      in the matter.”\n<\/p>\n
On behalf of the accused it was urged that by virtue of sub-
\ns.  (ii) of s. 24(a) of the Prohibition Act, the  provisions
\nof  ss.\t 12  and 13 thereof do not apply  to  any  medicinal
\npreparation  containing\t alcohol which is unfit for  use  as
\nintoxicating  liquor.  Section 12 of the Act  prohibits\t the
\nmanufacture and possession of liquor and s. 16 prohibits the
\npossession  of materials for the manufacture of liquor.\t  It
\nwas, however, contended on behalf of the State that once  it
\nis  established that what was seized from the possession  of
\nthe accused contains alcohol the burden of proving that what
\nwas seized, falls under s. 24(a) was on the accused  person.
\nThe   High   Court,  however,  held  that  the\t burden\t  of
\nestablishing  that a particular article does not fall  under
\ns.  24(a)  rests  on  the prosecution.\tIn  so\tfar  as\t the
\ncertificate of the Chemical Analyser was concerned the\tHigh
\nCourt observed as follows :\n<\/p>\n
\t      “It  is beyond controversy that, normally,  in
\n\t      order that a certificate could be received  in
\n\t      evidence,\t the  person  who  has\tissued\t the
\n\t      certificate  must be called and examined as  a
\n\t      witness  before the Court.  A  certificate  is
\n\t      nothing more than a mere opinion of the person
\n\t      who  purports to have issued the\tcertificate,
\n\t      and  opinion is not evidence until the  person
\n\t      who  has\tgiven  the  particular\topinion\t  is
\n\t      brought  before the Court and is subjected  to
\n\t      the test of cross-examination.”\n<\/p><\/blockquote>\n
It will thus be clear that the High Court did not hold\tthat
\nthe  certificate  was  by itself  insufficient\tin  law\t to.
\nsustain\t the  conviction and indeed it could not  well\thave
\nsaid  so in view of the provisions of s. 510,  Cr.P.C.\tWhat
\nthe High Court seems to have felt was that in  circumstances
\nlike those present in the case
\n900<\/span>
\nbefore\tit,  a court may be justified in not acting  upon  a
\ncertificate of the Chemical Analyser unless that person\t was
\nexamined  as a witness in the case.  Sub-section (1)  of  s.
\n510  permits  the  use\tof the\tcertificate  of\t a  Chemical
\nExaminer  as  evidence\tin any enquiry\tor  trial  or  other
\nproceeding  under the Code and sub-s. (2)  thereof  empowers
\nthe court to summon and examine the Chemical Examiner if  it
\nthinks fit and requires it to examine him as a witness\tupon
\nan  application either by the prosecution or the accused  in
\nthis  regard.\tIt would, therefore, not be correct  to\t say
\nthat where the provisions of sub-s. (2) of s. 5 1 0 have not
\nbeen  availed  of,  the report of  a  Chemical\tExaminer  is
\nrendered inadmissible or is even to be treated as having  no
\nweight.\t Whatever that may be, we are concerned in this case
\nnot with the report of a Chemical Examiner but with that  of
\na  Public  Analyst.  In so far as the report of\t the  Public
\nAnalyst is concerned we have the provisions of s. 13 of\t the
\nAct.  Sub-section (5) of that Section provides as follows :\n<\/p>\n
\t      “Any document purporting to be a report signed
\n\t      by  a  public  analyst,  unless  it  has\tbeen
\n\t      superseded  under\t sub-section  (3),  or\t any
\n\t      document purporting to be a certificate signed
\n\t      by   the\t Director  of\tthe   Central\tFood
\n\t      Laboratory,  may\tbe used as evidence  of\t the
\n\t      facts  stated therein in any proceeding  under
\n\t      this  Act or under sections 272 to 276 of\t the
\n\t      Indian Penal Code :\n<\/p><\/blockquote>\n
\t      Provided that any document purporting to be  a
\n\t      certificate  signed  by the  Director  of\t the
\n\t      Central  Food  Laboratory shall be  final\t and
\n\t      conclusive   evidence  of\t the  facts   stated
\n\t      therein.”\n<\/p><\/blockquote>\n
This  provision\t clearly  makes\t the  report  admissible  in
\nevidence.  What value is to be attached to such report\tmust
\nnecessarily  be for the Court of fact which has to  consider
\nit.   Sub-section (2) of s. 13 gives an opportunity  to\t the
\naccused\t vendor\t or  the  complainant  on  payment  of\t the
\nprescribed  fee\t to  make an application to  the  court\t for
\nsending\t a  sample of the  allegedly  adulterated  commodity
\ntaken  under  s. 1 1 of the Act to the Director\t of  Central
\nFood  Laboratory for a certificate.  The certificate  issued
\nby the Director would then supersede the report given by the
\nPublic\t Analyst.   This  certificate  is  not\t only\tmade
\nadmissible in evidence under subs. (5) but is given finality
\nof  the facts contained therein by the proviso to that\tsub-
\nsection.   It  is true that the certificate  of\t the  Public
\nAnalyst is not made conclusive but this only means that\t the
\ncourt  of  fact is to act on the certificate or not,  as  it
\nthinks fit.\n<\/p>\n
901<\/span><\/p>\n
Sub-section  (5) of s. 13 of the Act came for  consideration
\nin Antony’s case(1) upon which the State relied.  There\t the
\nquestion was whether a sample of buffalo’s milk taken by the
\nFood  Inspector was adulterated or not.\t The Public  Analyst
\nto whom it was sent submitted the following report :\n<\/p>\n
\t      “I  further certify that I have  analysed\t the
\n\t      aforementioned  sample and declare the  result
\n\t      of my analysis to be as follows :\n<\/p><\/blockquote>\n
\t      Solids-not-fat\t     9.00 per cent.\n\t      Fat\t\t     5.4 per cent.\n Pressing point\n\t      (Hortvet's method)     0.49 degree C\n<\/pre>\n
\t      and  am  of the opinion that the\tsaid  sample
\n\t      contains not less than seven per cent (7%)  of
\n\t      added  water as calculated from  the  freezing
\n\t      point  (Hortvet’s\t method)  and  is  therefore
\n\t      adulterated.”\n<\/p><\/blockquote>\n
\t      The  Magistrate who tried the accused  persons
\n\t      acquitted\t them on the ground that it was\t not
\n\t      established  that\t the milk  was\tadulterated.
\n\t      Before  the High Court it was  contended\tthat
\n\t      the  certificate was sufficient to prove\tthat
\n\t      water had been added to the milk and  reliance
\n\t      was placed upon the provisions of s. 13(5)  of
\n\t      the  Act.\t  The learned Judge  who  heard\t the
\n\t      appeal observed that this provision only\tsays
\n\t      that  the certificate may be used as  evidence
\n\t      but does not say anything as to the weight  to
\n\t      be attached to the report.  ‘Me learned  Judge
\n\t      then proceeded to point out what according  to
\n\t      him should be the contents of such report\t and
\n\t      said:\n<\/p><\/blockquote>\n
\t      “In  this case the court is not told what\t the
\n\t      Hortvet’s test is, what is the freezing  point
\n\t      of pure milk and how the calculation has\tbeen
\n\t      made to find out whether water has been added.
\n\t      I\t cannot, therefore, say that the  Magistrate
\n\t      was bound to be satisfied on a certificate  of
\n\t      this kind, which contains only a reference  to
\n\t      some  test and a finding that water  has\tbeen
\n\t      added.   The prosecution could  have  examined
\n\t      the  Analyst as a witness on their side.\t The
\n\t      learned  Magistrate also could very well\thave
\n\t      summoned and examined the Public Analyst,\t but
\n\t      whatever\tthat might be, I am not prepared  to
\n\t      say  that the finding of the  Magistrate\tthat
\n\t      the case has not been satisfactorily proved is
\n\t      one  which  could\t not  reasonably  have\tbeen
\n\t      reached by the learned Magistrate and
\n\t      (1)   I.L.R. [1962] 1 Kerala 430.<\/p><\/blockquote>\n
\t      902<\/span><\/p>\n
\t      that  the\t acquittal is wrong  and  calls\t for
\n\t      interferences” (p. 436)
\n All  that we would like to say is that it should  not\thave
\nbeen  difficult for the learned Judge to satisfy himself  by
\nreference to standard books as to what ‘Hortvet’s method  is
\nand what the freezing point of milk is.\t We fail to see\t the
\nnecessity   of\tstating\t in  the  report  as  to   how\t the
\ncalculations  have been made by the Public  Analyst.   Apart
\nfrom  that it is clear that this decision does\tnot  support
\nthe contention of learned counsel that a court of fact could
\nnot  legally act solely on the basis of the report  of,\t the
\nPublic Analyst.\n<\/p>\n
As  regards the failure to examine the Public Analyst  as  a
\nwitness in the case no blame can be laid on the prosecution.
\nThe report of the Public Analyst was there nd if either\t the
\ncourt  or  the\tappellant wanted him to\t be  examined  as  a
\nwitness\t appropriate  steps  would  have  been\ttaken.\t The
\nprosecution cannot fail solely on the ground that the Public
\nAnalyst\t had not been called in the case.  Mr. Ganatra\tthen
\ncontended  that the report does not contain  adequate  data.
\nWe  have seen the report for ourselves and quite apart\tfrom
\nthe fact that it was not challenged by any of the appellants
\nas  inadequate\twhen  it  was  put  into  evidence,  we\t are
\nsatisfied that it contains the Necessary data in support  of
\nthe  conclusion that the sample of turmeric powder  examined
\nby him showed adulteration.  The report sets out the  result
\nof  the\t analysis and of the tests performed in\t the  public
\nhealth\tlaboratory.   Two  out of the three  tests  and\t the
\nmicroscopic   examination  revealed  adulteration   of\t the
\nturmeric  powder.   The microscopic examination\t showed\t the
\npresence  of pollen stalks.  This could well be regarded  as
\nadequate  to  satisfy  the mind of  a  Judge  or  Magistrate
\ndealing\t with  the facts.  Mr. Ganatra then  said  that\t the
\nreport\tshows that the analysis was not made by\t the  Public
\nAnalyst\t himself but by someone else.  What the report\tsays
\nis  “I further certify that the have caused to\tbe  analysed
\nthe  aforementioned  sample and declare the  result  of\t the
\nanalysis  to be as follows.” This would show that  what\t was
\ndone  was done under the supervision of the  Public  Analyst
\nand that should be regarded as quite sufficient.
\n Now  as to the necessity of notice under s. 11 of the\tAct.
\nMr. Ganatra said that the report is admissible only  against
\na person to whom notice is given tinder s. 11 (1) (a) by the
\nFood Inspector, that the object of talking the sample was to
\nhave it analysed.  The law requires notice to be given\tonly
\nto  the\t person from whom the sample is taken  and  to\tnone
\nelse.  The object of
\n903<\/span>
\nthis  provision is clearly to apprise the person  from\twhom
\nthe  sample is taken of the intention of the Food  Inspector
\nso  that he may know that he will have the right  to  obtain
\nfrom the Food Inspector a part of the commodity taken by way
\nof  sample  by the Food Inspector.  This is with a  view  to
\nprevent a plea from being raised that the sample sent to the
\nanalyst was of a commodity different from the one from which
\nthe  Food Inspector has taken a sample.\t What  bearing\tthis
\nprovision  has on the admissibility of the evidence  of\t the
\nPublic Analyst is difficult to appreciate.  Once the  report
\nof  the\t Analyst  is placed on record at  the  trial  it  is
\nadmissible  against all the accused persons.  What it  shows
\nin  the present case is that the commodity of which  Kodumal
\nhad  taken  possession contained turmeric powder  which\t was
\nadulterated.  Therefore,  since\t it  is\t admitted  and\talso
\nestablished  that  the\tbag of turmeric\t powder\t from  which
\nsample\twas  taken  had been  despatched  by  the  appellant
\nMangaldas,  the\t report\t of  the  Public  Analyst  could  be
\nproperly  used\tagainst\t him in regard\tto  the\t quality  or
\ncomposition of the commodity.\n<\/p>\n
Mr.  Ganatra  then said that it was necessary  to  establish
\nthat  the appellant had the mens rea to commit the  offence.
\nIn support of his contention Mr. Ganatra pointed out that S.
\n19(1)  of the Act deprives only the vendor of the  right  to
\ncontend\t that  he was ignorant of the nature,  substance  or
\nquality\t of  the  food\tsold by him  and  not  a  person  in
\nMangaldas’s  position.\t According to him, the\tword  vendor
\nhere  means  the person from whom the  sample  was  actually
\ntaken\tby  the\t Food  Inspector.   We\tcannot\taccept\t the
\ncontention.   The word “Vendor”, though not defined  in\t the
\nAct,  would  obviously\tmean the person\t who  had  sold\t the
\narticle\t of  food  which  is  alleged  to  be\tadulterated.
\nMangaldas  having  sold\t the  bag  to  Daryanomal,  was\t the
\noriginal vendor and, therefore, though the sample was  taken
\nfrom  Kodumal he will equally be barred from saying that  he
\nwas  not  aware of the nature, substance or quality  of\t the
\nturmeric powder in question.  Moreover, it is curious that a
\nperson\twho  sought to get out by saying that  what  he\t had
\nactually sent was not an article of food but something\telse
\nshould\tnow want to say that he did not know that though  it
\nwas an article of food it was adulterated.
\nWe may now refer to two decisions upon which learned counsel
\nrelied in support of his contention.  The first is Municipal
\nBoard,\tBareilly  v. Ram Gopal(1).  There the  question\t was
\nwhether\t a shopkeeper who allowed the owner  of\t adulterated
\nghee to sell on his premises was entitled to say in  defence
\nthat he was ignorant of,
\n(1) 42 Crr.  L.J. 243.\n<\/p>\n
up.\/65-12
\n904<\/span>
\nthe  quality of ghee which its owner was offering for  sale.
\nIt  was\t held  by the Allahabad High Court that\t he  was  so
\nentitled.   We\tfail to appreciate how this case is  of\t any
\nassistance in the matter before us.  For, here, the turmeric
\npowder admittedly once belonged to Mangaldas and was in fact
\nsold  by  him  to  Daryanomal.\t At  one  stage,  therefore,
\nMangaldas  was\tthe  vendor  of\t the  turmeric\tpowder\tand,
\ntherefore, falls squarely within the provisions of s. 13 (1)
\nof  the Act.  The second case is Ravula Hariprasada  Rao  v.
\nThe  State(1).\tWhat was held in that case is that unless  a
\nstatute either clearly or by necessary implication rules out
\nmens rea as a constituent part of the crime, a person should
\nnot  be found guilty of an offence against the criminal\t law
\nunless\the  has got a guilty mind.   The  proposition  there
\nstated\tis  well-established.\tHere s.\t 19(1)\tof  the\t Act
\nclearly\t deprives  the\tvendor\tof  the\t defence  of  merely
\nalleging  that he was ignorant of the nature,  substance  or
\nquality\t of the article of food sold by him and this  places
\nupon  him the burden of showing that he had no mens  rea  to
\ncommit\tan offence under s. 17(1) of the Act.  In  a  recent
\ncase-State of Maharashtra v. Mayer Hans George<\/a>(2)-this Court
\nhad to consider the necessity of proving mens rea in  regard
\nto an offence under s. 23 (1) (a)  of the  Foreign  Exchange
\nRegulation Act (7 of 1947) read\t   with a notification dated
\nNovember 8, 1962 of the Reserve Bank\tof    India.\t The
\nmajority of Judges constituting the Bench held that    on
\nthe language of S. 8 (1 ) read with s. 24 (1)  of the  above
\nAct, the burden was upon the accused of proving that he\t had
\nthe  requisite\tpermission of the Reserve Bank of  India  to
\nbring  gold into India and that there was no scope  for\t the
\ninvocation  of\tthe  rule  that\t besides  the  mere  act  of
\nvoluntarily  bringing  gold into India\tany  further  mental
\ncondition  or  mens  rea  is  postulated  as  necessary\t  to
\nconstitute an offence referred to in s. 23(1-A) of the above
\nAct.  We are, therefore, unable to accept the contention  of
\nlearned counsel.\n<\/p>\n
The  only other point which falls for consideration  is\t the
\none raised by Mr. Anthony in the other appeal.\tMr.  Ganatra
\ndid  not address any separate argument on this point but  he
\nadopted what was said by Mr. Anthony.  That point is whether
\nthe  transaction in question i.e., taking of a sample  by  a
\nFood  Inspector\t under\ts.  11\tamounts\t to  a\t“sale”\tand,
\ntherefore, whether the person connected with the transaction
\ncould  be  said to have infringed s. 7(v) of the  Act.\t Mr.
\nAnthony’s contention is that for a transaction to be a\tsale
\nit  must be consensus sale.  Where a person is\trequired  by
\nthe  Food Inspector to sell to him a sample of\ta  commodity
\nthere is an element of compulsion and, therefore, it  cannot
\nbe
\n(1) [1951] S.C.R. 322.\n<\/p>\n
(2) [1965] 1 S.C.R. 123.\n<\/p>\n
905<\/span><\/p>\n
regarded  as  sale.   In support of the\t contention  he\t has
\nplaced\treliance  upon\tthe decision in\t Food  Inspector  v.
\nParameswaran(1)\t Raman\tNayar J., who decided the  case\t has
\nobserved therein:\n<\/p>\n
\t      “As a sale is voluntary transaction and  (sic)
\n\t      a\t  seizure  or  compulsory   acquisition\t  in
\n\t      exercise\tof  statutory power is\tnot  a\tsale
\n\t      within  the ordinary sense of that word.\t Nor
\n\t      does the definition of ‘sale in s. 2(xiii)  as
\n\t      including a sale of good for analysis make  it
\n\t      one,  for, the first requisite even under\t the
\n\t      definition is that there must be a sale.\t The
\n\t      definition  apparently  by  way  of   abundant
\n\t      caution,\tmerely states that the\tword  ‘sale’
\n\t      means all manner of sales of food, whether for
\n\t      cash  or on credit or by way of  exchange\t and
\n\t      whether  by  wholesale or\t retail,  for  human
\n\t      consumption  or use, or for analysis; and\t all
\n\t      that  the definition means in relation to\t the
\n\t      question\twe are considering is that a  We  of
\n\t      food  is nonetheless a sale, by reason of\t the
\n\t      fact  that it was not for consumption or\tuse,
\n\t      but only for analysis.\n<\/p><\/blockquote>\n
\t      In  my  view when a food inspector  obtains  a
\n\t      sample  under  s. 10 of the Act  there  is  no
\n\t      sale.   of course, it is possible for  a\tFood
\n\t      Inspector\t just like any other human being  to
\n\t      effect a purchase in the ordinary course,\t and
\n\t      the    transaction    would    be\t   a\tsale
\n\t      notwithstanding  that the purchaser is a\tFood
\n\t      Inspector and that his purpose is to have\t the
\n\t      article  analysed with a view to\tprosecution.
\n\t      But,  if\the  obtains the\t article  not  by  a
\n\t      voluntary exchange for a price but in exercise
\n\t      of his statutory power under s. 10 of the\t Act
\n\t      the transaction is not a sale  notwithstanding
\n\t      that  in obedience to sub-s. (3) of s. 10\t its
\n\t      cost  and\t I think the  sub-section  advisedly
\n\t      uses the long phrase, ‘its cost calculated  at
\n\t      the rate at which the article is usually\tsold
\n\t      to the public’ instead of the word ‘ price  is
\n\t      paid  to\tthe person from whom the  sample  is
\n\t      taken.”\n<\/p><\/blockquote>\n
In  Sarjoo Prasad v. The State of Uttar Pradesh<\/a> (2);  M.  V.
\nJoshi v. M.  U. Shimpi<\/a>(3) and The State of Uttar Pradesh  v.
\nKartar Singh<\/a> (4) this Court has treated a transaction of the
\nkind  we  have here as a sale.\tNo doubt,  no  argument\t was
\naddressed in any of these cases before this Court similar to
\nthe one advanced by Mr. Anthony in this case and as advanced
\nin Parameswaran’s case(1).\n<\/p>\n
(1)  [1962] 1 Crl.  L.J. 152.\n<\/p>\n
(2)  [1961] 3 S.C.R. 324.\n<\/p>\n
(3)  [1961] A S.C.R. 986.\n<\/p>\n
(4)  A.T.R. 1964 S.  C. 1135.\n<\/p>\n
906<\/span><\/p>\n
A  view contrary to the one taken in Parameswaran’s  case(1)
\nwas  taken  in\tState v.  Amritlal  Bhogilal(1)\t and  Public
\nProsecutor  v.\tDada Rail Ebrahim Helari(3). In\t both  these
\ncases the sale was to a sanitary inspector who had purchased
\nthe  commodity from the vendor for the purpose of  analysis.
\nIt was contended in these cases that the transaction was not
\nof  a voluntary nature and, therefore, did not amount  to  a
\nsale.  This contention was rejected. In Amritlal  Bhogilal’s
\ncase(1) the learned Judges held:\n<\/p>\n
\t      “There  is also no reason why in such  a\tcase
\n\t      the  article should not be held to  have\tbeen
\n\t      sold to the inspector within the meaning of s.
\n\t      4\t (1)  (a).  He\thas  paid  for\tthe  article
\n\t      purchased\t by  him like  any  other  customer.<\/p><\/blockquote>\n
\t      Moreover,\t  s.  11  itself  uses\t the   words
\n\t      “purchase’  and  ‘  sell’\t in  regard  to\t the
\n\t      inspectors   obtaining  an  article  for\t the
\n\t      purpose  of analysis and paying the price\t for
\n\t      it.    It\t is,  therefore,  clear\t  that\t the
\n\t      Legislature  wanted such a transaction  to  be
\n\t      regarded\tas  a sale for the purposes  of\t the
\n\t      Act.” (p. 463)
\nThe  learned Judges in taking this view relied upon  several
\nreported  decisions  of that Court.  In\t Dada  Haji  Ebrahim
\nHelari’s  case(3) which was under the Madras  Prevention  of
\nAdulteration  Act, (3 of 1918) Ramaswami J., dissented\tfrom
\nthe  view  taken  by  Horwill  J.,  in\tIn  re\t Ballamkonda
\nKankayya(4) and following the decisions in Public Prosecutor
\nv.    Narayan\t Singh(5)   and\t  Public    Prosecutor\t  v.
\nRamachandrayya(6) held the transaction by which a sample  of
\nan article of food was obtained by a sanitary inspector from
\nthe vendor amounts to a sale even though that man was  bound
\nto give the sample on tender of the price thereof.  But\t Mr.
\nAnthony contends that a contract must be consensual and that
\nthis   implies\tthat  both  the\t parties  to  it  must\t act
\nvoluntarily.   No doubt a contract comes into  existence  by
\nthe  acceptance of a proposal made by one person to  another
\nby  that  other person.\t That other person is not  bound  to
\naccept\tthe proposal but it may not necessarily follow\tthat
\nwhere  that  other person had no choice but  to\t accept\t the
\nproposal  the transaction would never amount to a  contract.
\nApart from this we need not, however, consider this argument
\nbecause\t throughout the case was argued on the footing\tthat
\nthe  transaction  was a ‘sale’. That was  evidently  because
\nhere  we have a special definition of “sale” in\t 2(xiii)  of
\nthe Act which specifically includes within its ambit a
\n(1)  [1962] 1 Crl.  L. J. 152.\n<\/p>\n
(2)  L.L.R. 1954 Bom. 459.\n<\/p>\n
(3)  A.I.R. 1953 Mad. 241.\n<\/p>\n
(4)  A.I.R. 1942 Mad. 609.\n<\/p>\n
(5)  1944 M.W.N. Crl. 131.\n<\/p>\n
(6)  1948 MW.N. Cri. 32.\n<\/p>\n
\t\t\t    907<\/span><\/p>\n
sale   for  analysis.\tIt  is,\t therefore,   difficult\t  to
\nappreciate  the\t reasons which led Raman Nayar J.,  to\thold
\nthat  a\t transaction like the present does not amount  to  a
\nsale.\tWe are, therefore, unable to accept that  view.\t  In
\nthe  result we uphold the conviction and sentence passed  on
\neach of the appellants and dismiss these appeals.
\nAppeals dismissed.\n<\/p>\n
908<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on 8 February, 1965 Equivalent citations: 1966 AIR 128, 1965 SCR (2) 894 Author: M R. Bench: Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Mudholkar, J.R., Sikri, S.M. PETITIONER: MANGALDAS RAGHAVJI RUPAREL & ANR. Vs. RESPONDENT: THE STATE OF MAHARASHTRA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134386","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on 8 February, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangaldas-raghavji-ruparel-anr-vs-the-state-of-maharashtra-anr-on-8-february-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on 8 February, 1965 - 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