PETITIONER:
KISAN TRIMBAK KOTHULA & ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT17/11/1976
BENCH:
KRISHNAIYER, V.R.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 435 1977 SCR (2) 102
1977 SCC (1) 300
ACT
Prevention of Food Adulteration Act (37 .of 1954) Ss.
2(i)(1), 2(ix) (c) and (k), 16(1)(a)(i) and its first
proviso and s. 17(1) and (2)--Scope of.
HEADNOTE
Section 16(1)(a)(i) of the Prevention of Food Adulteration
Act, 1954, provides inter alia that, if any person whether
by himself or by another person on his behalf stores or
sells any article of food, which is adulterated or misbrand-
ed,he shall, in addition to the penalty he may be liable
under s. 6, be punishable which imprisonment for a term
which shall not be less than 6 months, etc.The first proviso
to the sub-section provides that if the offence is under
sub-clause (i) of clause (a) and is with respect to an
article of food which is adulterated under s. 2(i)(1) or
misbranded under s. 2(ix)(k), the Court may, for any ade-
quate and special reasons, impose a sentence of imprisonment
for a term less than 6 months. Section 17(1) provides that
where an offence under the Act has been committed by a firm
every person who at the time the offence was committed was
incharge of or responsible for the conduct of the business
of the firm shall be deemed to be guilty of the offence.
The proviso to the sub-section states that nothing contained
in the sub-section shall render any such person liable to
any punishment if he proves that the offence was committed
without his knowledge or that he exercised all due diligence
to prevent its commission. Under s. 17(2) notwithstanding
anything contained in sub-s. (1) where an offence under
the Act has been committed by a firm and it is proved
that the offence has been committed with the consent or
connivance or is attributable to any neglect on the part of
a partner, such partner shall be deemed to be guilty of the
offence.
In the present case accused 2 and 3 were partners carry-
ing on the business of a small restaurant (accused 1). The
Food Inspector visited the restaurant and noticing some milk
kept for sale enquired about its quality. Accused 3 told him
that it was cow’s milk. The 2nd accused was then not
present in the restaurant. The Food Inspector then bought
some of the milk from the 3rd accused and sent it to the
Public Analyst after complying with the statutory formali-
ties. The Public Analyst reported that the milk was buffa-
lo’s milk, that there was deficiency of fat and that the
milk contained added water. The three accused were charged
with the offence punishable under s. 7(i) and (ii) and s.
16(1A)(ii). They pleaded guilty and were sentenced to pay a
fine. On appeal by the State, the High Court, holding that
the accused cannot invoke the proviso to s. 16(1)(a)(i)
enhanced the sentence on the 2nd and 3rd accused to the
minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court,
HELD: (1) The Probation of Offenders Act is not applica-
ble to the accused in the circumstances of the case. [109
G]
(2) Addition of water amounts to adulteration within the
meaning of s. 2 (i) (b) (c) or (d). [108 E]
(3) To earn the eligibility to the benefit of the provi-
so to s. 16(1)(a)(i) the accused must establish not only
that his ease fails positively under the offences speci-
fied in the said proviso, but negatively, that his acts do
not attract any of the non-proviso offences in s. 16(1). The
application of the proviso depends on whether the adultera-
tion or misbranding of the article is of the species exclu-
sively covered by s. 2(i)(1) or s. 2(ix)(k). In judicial
construction, the consumers’ understanding of legislative
expressions is relevant and so viewed, ’Cow’s milk’ is
different from ’buffalo’s milk’. The misbranding therefore
falls under s. 2(ix)(c) which provides that an article shall
be deemed to be misbranded if it is sold by a name which
belongs to another article of food,
103
and does not fall under s. 2(ix)(k). Therefore, the exclu-
sion of the first proviso and the conviction of all the
accused under s. 16(1)(a) are justified. [106 C; 107C; 109D]
Murlidhar v. State of Maharashtra [1976] 3 SCC 684 and
Prem Ballabh v. State (Delhi Admn.) Criminal Appeal No. 287
of 1971 decided on 15-9-76, followed.
(4) The 2nd accused however is not guilty of selling the
misbranded article. The liability of a partner depends on
the application of s. 17(1) or (2). Section 17(2) is not
applicable to the absent 2nd accused as there is no evidence
to prove the required mens rea set out in the sub-section.
Though s. 17(1) applies, the second accused would not be
guilty of this charge because of the proviso to that sub-
section. The evidence shows that the second accused was
absent at the time of the sale, that the milk was bought
from the bazar by the servant in the restaurant and that it
was not as if the two accused were palming off buffalo’s
milk and Cow’s milk, but the particular representation by
the 3rd accused was an adventitious One, made by him on his
own on the spot. [109E-F; 110 B]
[The Public Analysts report should not be prefunctory
giving a few mechanical data. It should help the Court with
something more of the process by which his conclusion has
been arrived at].
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 388
of 1976.
Appeal by Special Leave from the Judgment and Order
dated the 26th & 27th July, 1976 of the Bombay High Court in
Criminal Appeal No. 930/74.
Gobind Das, A.K. Mathur and A.K. Sharma for the Appellant.
M.N. Shroff for Respondent.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan,
K.C. Sharma and H.R. Khanna for both the parties.
The Judgment of the Court was delivered by
KRISHNA IYER, J.---This criminal appeal, by special
leave, raises a few questions of law under the Prevention of
Food Adulteration Act, 1954 (Act XXXV. II of 1954) (for
short, the Act), ingeniously urged by the appellants, a firm
and its two partners, although the plea of ’guilty’ entered
by the appellants before the trial court--possibly as part
of a ’plea bargaining’ which misfired at the appellate
level-makes short shrift of the exculpatory and extenuatory
arguments urged by his counsel before us. At the end of the
weary forensic exercise we gathered what should have been
told us first viz., that when the three accused were exam-
ined and charges read out they pleaded guilty, which would
have abbreviated the hearing here had we known it earlier.
We proceed on the footing that the facts set out in the
charge are true, that being the net price of a plea of
guilt.
At this stage, the particulars and the setting of the
prosecution facts need to be narrated. On October 2, 1973
the Food Inspector of Nasik visited the small restaurant of
the ’first accused firm at about 8.30 a.m., found a few
litres of milk kept for sale and enquired about the quality
of the milk. He was told by accused NO. 3 (a partner Of the
business, the other partner being his brother, accused No.
2) that it was cow’s milk. Thereupon, he bought 660 mls of
such milk from accused No. 3. The statutory formalities
under the Act were complied
104
with and one of the three sealed bottles was sent to the
public Analyst from whom the report was received that (a)
the milk was not cow’s but buffalo’s milk; (b) the fat
deficiency was 16.3% and the milk contained 17.8% of added
water. A prosecution ensued, the Food Inspector was exam-
ined and cross-examined and a charge was framed after the
accused were questioned and their written statements filed
into Court. The charge read:
"That you (accused nos. 1, 2 & 3) on or
about the 2nd day of October 1973 at 8.30
a.m., at Nasik stored for sale adulterated
buffalo milk with 16.3% of fat deficiency and
17.8% added water and also ’misbranded it as
cow milk, and thereby committed an offence
punishable under section 7(i) (ii) and 16(i)
(A) (ii) Prevention of Food Adulteration Act
within my cognisance."
This charge elicited a plea of ’guilty’ from all the three
accused. Of course, each added that he did not sell ’raw
milk’ and that the two brothers jointly ran the shop as a
firm, that the said business was a small one where tea, milk
and other articles were supplied, that the whole family,
fifteen strong, lived on the paltry profits from the petty
restaurant and so a lenient view be taken on sentence. They
further pleaded, in extenuation, that their servant pur-
chased the milk from the bazar, reported that it was cow’s
milk and that it was on that basis that the accused told the
Food Inspector that what was being sold was cow’s milk. The
trial Court, acting on the plea of guilt, convicted all the
accused but viewed the offence as a somewhat venial devia-
tion where the adulteration, being only of water ’was not
injurious to human health’ After adverting to a prior
conviction of A-3 for a food offence, the Magistrate merci-
fully declined to apply the Probation of Offenders Act! The
Magistrate observed in conclusion: ’It is necessary to give
accused nos. 2 and 3 one more chance to improve themselves
and do honest business’. The firm, accused no. 1, was
punished with.fine, accused nos. 2 and 3, the partners, also
were’ punished under s. 7(1) (ii) read with s. 16(1) (e) (1)
of the Act, each being sentenced to a fine of Rs. 500/-.
Even here, we may permit ourselves the stern remark that
there is pathos and bathos in this manner of magisterial
indulgence when society is the victim and the stakes are
human health and, perhaps, many lives! It must be remem-
bered that the mandate of humanist jurisprudence is some-
times harsh.
The State appealed for enhancement of the sentence and
the High, Court acceded and quashed the trial Court’s sen-
tence in allowance of the appeal and enhanced the punishment
to. six months’ imprisonment plus fine of Rs. 500/- each,
the firm itself (A-) being awarded a fine only.
The basic factor which led to enhancement of the sen-
tence by the High Court was that, in the High Court’s view,
the benefit of proviso (1) to s. 16(1) stood repelled, and
so the minimum sentence set by the statute was obligatory.
The learned Magistrate’s ’kindly’ eye overlooked this
compulsive provision.
105
Wide-ranging defences were valiantly urged by the
appellants before us but without merit. For, once a person
pleads guilty and the Court accepts it, there is no room for
romantic defences and irrelevant litanies based on the
business being the mainstay of a large family, both broth-
ers, the only bread-winners, being jailed, bazaar coming
milk brought by the servant unwittingly turning out to be
buffaloes’ milk and what not. How can a factual contention
of innocence survive a suicidal plea of guilt or tell-tale
contrition wash away the provision for minimum sentence ?
Therefore, what is permissible is the sole legal submission
that the offence falls under the proviso (i) to s. 16(1)
which, if good, relieves this Court from imposing the com-
pulsory minimum sentence of six months’ imprisonment if
sound grounds therefore exist. The desperate appellants,
undaunted by one of them having been strained by a prior
conviction for a food offence, half-heartedly flirted with
the misericordious submission that the Probation of Offend-
ers Act be applied to the economic offenders. The futile
plea has to be frowned off, being more a gamble in foolhardy
courage than one showing fidelity to precedents or fairness
to forensic proprieties. We state it to reject it so that
like delinquents may not repeat it later in similar circum-
stances. True, petty milk vendors and poor victuallets,
young apprentices in adulteration offences, trivial crimi-
nals technically guilty and others of their milk, especially
when rehabilitation is feasible or repetition is impossible
and the social circumstances promise favourable correctional
results,_ may call, the compassionate attention of the Court
to the provisions of the probation law unless Parliament
pre-empts its application by express exclusion (The law in
this regard has since been tightened up). Equally true,
that a few guileless souls in the dock, scared by the some-
times exaggerated legal finality given to public analysts’
certificates and the inevitable incarceration awaiting them,
may enter into that dubious love affair with the prosecution
called ’plea bargaining’ and get convicted out of their own
mouth, with a light sentence to begin with, running the
risk of severe enhancement if the High Court’s revisional
vigilance falls on this ’trading out’ adventure. This Court
has animadverted on this vice of ’plea bargaining’ in Mur-
lidhar v. State of Maharashtra(1). Maybe, something like
that happened here. as was urged before us by Shri Gobind
Das for the appellants, relying, as he did, on the circum-
stances that the accused had cross examined the prosecution
witness as if he were innocent, added a rider to his plea of
guilt and sown the seeds of a valid defence even as he was
asking for mercy in punishment. We do not explore the
deeper import of the quasi-compounding element or something
akin to it, except to condemn such shady deals which cast
suspicion on the integrity of food inspectors and the admin-
istration of justice.
This preliminary screening leaves for consideration only
one legal plea for paring down the sentence plus adventi-
tious detection of another, built on the shortfalls in a
slipshod certificate issued by the public analyst.
The sentencing scheme of the Act is this. The offences
under s. 16(1) are classified in a rough and ready way and
while all of them
(1) [1976] 3 S.C.C. 684
106
are expected to be viewed sternly carrying a standard prison
sentence, a few of them are regarded as less serious in
certain situations so that the Court, for socially adequate,
individually ameliorative reasons,may reduce the punishment
to below the statutory minimum. The proviso (i) to s.16(1)
takes care of this comparatively lesser class which may,
for easy reference, be called ’proviso offences’. This
dichotomy of food crimes throws the burden on the Court of
identifying the category to which the offence of the accused
belongs. This Court has earlier held--and to this we will
later revert--that even if the offence charged falls under
both the categories i.e, proviso offences and others, there
being admittedly, some overlap in the definition the delin-
quent earns the severer penalty. In this view, to earn the
eligibility to fall under the proviso to s. 16(1), the
appellant must establish not only that his case falls posi-
tively under the offences specified in the said proviso but
negatively that his facts do not attract any of the non-
proviso offences in s. 16(1).
Adulteration of food is so dangerous and widespread 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 mens. To take
risks in the name of very gullible dealers or very ignorant
distributors, when the consequences may spell disaster on
innocent victims, few or many, is legislative lackadaisical
conduct, giving the wildest hostage to fortune. So it is
that mens rea is excluded and proof of actus reum is often
enough. The story of small restauranteurs unwittingly
vending milk, as is alleged here, is irrelevant to
culpability. To quantum of sentence, personal circumstances
may be relevant, subject to the minimum set. But the perti-
nent query is, does the exception to the minimum set out in
the proviso apply here ?
Section 16(1 ) and proviso (i) may now be set out for
facility of discussion:
"16(1) If any person--
(a) whether by himself or by any other
person on this behalf .... or stores, sells
or distributes any article of food-
(i) which is adulterated or misbranded or
the sale of which is prohibited by the Food
(Health) authority in the interest of public
health;
* * * *
* *
he shall, in addition to the penalty he may be
liable under the provisions of section 6, be
punishable with imprisonment for a term which
shall not be less than six months but which
may extend to six years, and with fine which
shall not be less than one thousand rupees:
Provided that---
(i) if the offence is under sub-clause (i)
of clause (a) and is with respect to an
article of food which is
107
adulterated under sub-cl. (1) of clause (i) of
section 2 or misbranded under sub-clause (k)
of clause (ix) of that section
* * * *
*
the Court may for any adequate and special
reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term
of less than six months or of fine of less
than one thousand rupees or of both
imprisonment for a term of less than six
months and fine of less than one thousand
rupees."
The key legal issue, as earlier indicated, is as to whether
proviso (i) to s. 16(1) takes in the offence in question.
Eligibility to the commiserative consideration set out in
the said proviso depends on whether the adulteration of the
article of food is of the species exclusively covered by
sub-cl. (1) of s. 2(i) or it is ’mis-branded’ under subcl.
(k) of cl. (ix) of that section. We say ’exclusively’, for
reasons which have been set out in Murlidhar(1). One of us,
in that ruling, has argued:
"5. It is trite that the social mission
of food laws should inform the interpretative
process so that the legal blow may fall on
every adulterator. Any narrow and pedantic,
literal and lexical construction likely to
leave loopholes for this dangerous criminal
tribe to sneak out of the meshes of the law
should be discouraged. For the new criminal
jurisprudence must depart from the old canons,
which make indulgent presumptions and favoured
constructions benefiting accused persons and
defeating criminal statutes calculated to
protect the public health and the nation’s
wealth. This humanist approach and cute
construction persuades us to reject Shri
Bhandare’s analysis of Section 2(1). Sub-
clause (a) of Section 2(i) has a wide sweep
and loyalty to the intendment of the statute
forbids truncating its ambit. There cannot be
any doubt that if the article asked for is
100% khurasani oil and the article sold is 70%
khurasani oil and 30% groundnut oil, the
supply ’is not of the nature, substance or
quality which it purports or is represented to
be’. The suggestion that there is no formal
evidence of representations or prejudice as
stated in the section does not merit
consideration being a quibble over a
trifle."
x x x
x
"9. Judicial compassion can play upon
the situation only if the offence is under
sub-clause (i) of clause (a) of Section 16(1)
and the adulteration is one which falls under
subclause (1) of clause (i) of Section 2.
Secondly, the proviso also applies if the
offence is under sub-clause (ii) of clause
(i), that is to say, the offence is not one of
adulteration but is made up of a c
ontravention of any of the other provisions of
the Act or of any rule made thereunder. In
the present
(1) [1976] 3 S.C.C. 684.
108
case we have already found-that the accused is
guilty of an offence of adulteration of food
under Section 2(i) (a). Therefore, proviso
(ii) is out. Proviso (i) will be attracted,
according to Shri Bhandare, if Section 2 (i)
(1) applies to the species of adulteration
committed. In our view, the only sensible
understanding of proviso (i) is that the
judicial jurisdiction to soften the sentence
arises if the offence of adulteration falls
only under sub-clause (1) of clause (i) of
Section 2 and we have held that it does not.
We cannot but deplore the clumsy draftsmanship
displayed in a statute which affects the
common man in his daily bread. It is
unfortunate that easy comprehensibility and
simplicity for the laity are discarded
sometimes through oversophisticated
scholarship in the art of drawing up
legislative bills. It cannot be over stressed
that a new orientation for drafting
methodology adopting directness of language
and avoiding involved reference and obscrurity
is overdue. Be that as it may, in the present
case Section 2(i) (a) applies and Section
16(1)(a) has been breached. Therefore the
proviso cannot be applied in extenuation and
the conviction of the High COurt has to be
upheld."
A similar reasoning has found favour with this Court
(two of us were party thereto) in Prem Ballab v. State
(Delhi Admn.)(1). If the advantage of proviso (i) to s.
16(1) is liable to be forfeited by the offence falling under
any other definition in s. 2 than 2(i) (1) or 2(ix) (k), the
judicial focus turns on whether, in the present case, any
other sub-clause of s. 2(i) or s. 2(ix) is attracted. The
High Court has .taken the view that other sub-clauses of s.
2(i) than s. 2(i) (1) apply and therefore the appellant is
Out of Court in invoking the proviso to s. 16(1).
There was much argument that addition of water to milk
did not amount to ’adulteration’ within the meaning of s.
2(i), (b) or (c) or (d). Plausible submissions were made in
that behalf by Shri Govind Das but obviously we do not
agree. However, the details of the debate at the bar can be
skirted because the appellants, inescapably, fall under s.
2(ix) (c) which reads:
"2(ix) (c): ’misbranded’--an article of
food shall be deemed to be misbranded if it is
sold by a name which belongs to another
article of food."
Indisputably, what was sold was ’buffalo’s milk’. Indeed,
the Public Analyst’s Report indicates that what was seized
and analysed was ’buffalo’s milk’, misbranded as cow’s
milk--an offence under s. 2(ix) (C) of the Act and accused
no. 2, Kisan Trimbak, has admitted, with a laconic ’no’, in
answer to the question as to whether he had anything to say
about the Report of the Public Analyst. The third accused
has followed suit. The charge framed specifically mentions
the offence under s. 7(2) bearing on misbranding and the
plea is one of ’guilt’. Moreover, the evidence of P.W. 1,
Food Inspector, also goes to show that the food sold was
stated to be cow’s milk. Misbranding, in the
(1) Criminal Appeal No. 287 of 1971 decided on 15-9-76,
109
present case, cannot be and is not contended to be one under
s. 2(ix) (k) which deals with labelling in accordance with
the requirements of the Act or the Rules. That is not the
offending sale in the present case which is one of lobbing
off buffalo’s milk as cow, s milk.
The narrow point that survives is whether ’cow’s milk’
is an article of food different from ’buffalo’s milk’, so
that the sale of one by using the name which belongs to the
other can be said to attract s. 2(ix) (c). While ’milk’ is a
generic term, the identity of the article of food. is de-
pendent on the source. ’Cow’s milk’, ’buffalo’s milk’,
’goat’s milk’, camel’s milk’ ’horse’s milk’, ’donkey’s milk’
are all different from each other and are’ consumed by
different sections of people, sometimes for ailment, some-
times for improving health and, in the case of ’horse’s
milk’ for exhilaration and nourishment. Shortly put, they
are different articles of food and the name of one cannot be
appropriated for the other by a seller without being tracked
down by s. 2(ix)c). The housewife is a competent interpreter
of statutes dealing with household articles; the consumers’
understanding of the expressions used in legislation relat-
ing to them is an input in judicial construction. Law, in no
branch, is an absolute abstraction or sheer mystique; it
regulates the business of life and so its meaning must bear
life’s impress. Thus viewed ’cow’s milk’ is different from
’buffalo’s milk’ and misbranding is complete. And worse, the
species of misbranding is that under s. 2(ix) (c).
Thus the conviction under ’s. 16(1) (a)’ and the exclu-
sion of the proviso (i) are justified, subject to what we
have to say about the Public Analyst’s Report and the
criticism levelled thereon which bears on the guilt of
accused no. 2.
A material circumstance which has been pressed before
us--not as a commisserative but as an absolvatory circum-
stance, is that only one of the accused (accused no. 3),
according to the prosecution, was present when the misbrand-
ed article was sold to the Food Inspector and that accused
no. 2 could not be found guilty of sale of a misbranded
article of food by reading into the situation s. 17 (1).
The short argument is that the liability of a partner of the
firm, when another partner has committed the offence, de-
pends on the application of s. 17 (1 ) or (2) of the Act.
Section 17(2) makes the absent accused vicariously guilty if
’it iS proved that the offence has been committed with the
consent or connivance of, or is attributable to any neglect
on the part of the other partner’. In the present case,
there is no evidence led by the prosecution in proof of this
requirement of mens rea against accused no. 2. Which means
that s. 17(2) is inapplicable to create liability against
accused no. 2. Even so, s. 17(1) may apply, if the absent
accused is in charge of or responsible for the conduct of
the business of the firm, the temporary absence of a partner
at the time of the offending act being immaterial. In the
present case. both the brothers have been in charge of the
business and so the substantive part of s. 17(1) will apply
unless the proviso salvages the second accused. This provi-
so reads:
"Provided that nothing contained in this
sub-section shall render any such person
liable to any punishment provided in this Act
if he proves that the offence was committed
without
110
iris knowledge or that he exercised all due
diligence to prevent the commission of such
offence."
If the accused concerned is absent at the time of the com-
mission of the offence and circumstances are eloquently such
as to lead to the clear inference that there was no proof of
scienter regarding the commission of the particular offence,
knowledge being absent, immunity from conviction for that
offence follows. In the instant case, the 2nd accused was
absent at the time the milk was sold. Furthermore, the
quantity of milk in the shop was bought from the bazar by
the servant in the shop. The crucial fact which ropes in
the accused for the offence of ’mis-branding’ under s.
2(ix)(c) is that the article, when sold, was represented to
be ’cow’s milk’. This was an adventitious representation
made on the spot by the third accused on his own, so far as
the evidence discloses. It is not as if the business of the
brothers was to palm off buffalo’s milk as cow’s milk on
unwary buyers. Had there been a well grounded suggestion
that this sharp practice had been resorted to more than once
we would unhesitatingly have inferred knowledge of the
misbranding even on the part of the absent partner. Such is
not the case and so the 2nd accused is entitled to acquittal
on this charge.
Counsel for the appellants correctly criticised the
inadequacy of the Public Analyst’s certificate. Had there
been a plea of ’not guilty’ we might have been forced to
scrutinize how far the perfunctoriness of the Public Analyst
has affected the substance of his conclusions. It is not
enough to give a few mechanical data. It is more pertinent
to help the court with something more of the process by
which the conclusion has been arrived at. We need not probe
the matter further, notwithstanding the decisions reported
in two English cases (cited before us)(1) because the plea
of ’guilty’ silences the accused.
We accordingly dismiss the appeal, although we leave it
to the State Government, having regard to the fact that the
trade is petty, that the adulteration has not been shown to
be by any noxious substance and that the harm done has not
been of any magnitude, to consider whether it should exer-
cise the power of clemency to remit the sentence by three
months so that it may be in tune with the provisions of the
Act as recently amended. These observations notwithstand-
ing, as aforesaid, the appeal stands dismissed.
V.P.S. Appeal dis-
missed.
(1) [1869] 1 Q.B.D. 202 & [1894] 1 Q.B.D. 478,482.
111