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1969 Supreme(Bom) 28
IN THE HIGH COURT OF BOMBAY
M.N.Chandurkar, J.
Appellants: R.J. Gujar
Vs.
Respondent: Jamnadas Gopalji and Anr.
Criminal Appeal No. 65 of 1968 Decided On: 13.03.1969
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Bapat, Adv.
For Respondents/Defendant: V.G. Palshikar, Adv. and M.M. Qazi, Asst. Govt. Pleader
Important Points
Subject
Criminal Law - FOOD ADULTERATION
Act Referred
PREVENTION OF FOOD ADULTERATION ACT : S.16(1)(b)
Headnote
PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTION 10(1)(A)(I), 11(1), 16(1)(B), 19(2) - RULES 22, 22-A - FOOD INSPECTOR'S POWER TO TAKE SAMPLE - INTERPRETATION - FAILURE TO OBTAIN SAMPLE DUE TO MISAPPREHENSION OF LEGAL POSITION - NO OFFENCE UNDER SECTION 16(1)(B).
Fact of the Case:
A Food Inspector attempted to purchase a sample of ghee from a Kirana merchant, who sold the ghee in sealed containers. The merchant refused to sell a quantity less than the entire container, as he was not permitted to sell retail quantities. The Food Inspector believed he could only purchase a maximum of 450 grams of the ghee and did not purchase the entire container. The merchant was charged with preventing the Food Inspector from taking a sample under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954.
Finding of the Court:
The court found that the Food Inspector's failure to obtain the sample was due to a misapprehension of his legal position, as there was no prohibition on purchasing a quantity larger than 450 grams. The court also noted that the merchant had a statutory defense under Section 19(2) of the Act, which allowed him to sell the ghee in the same state as he had received it from the manufacturer.
Issues: 1. Whether the Food Inspector had the power to insist on a sale of an article in a sealed container received by the seller with a warranty from the manufacturer after breaking open the seal? 2. Whether the merchant's refusal to sell a quantity less than the entire container constituted an offense under Section 16(1)(b) of the Act?
Ratio Decidendi: 1. The court interpreted Section 10(1)(a)(i) of the Act as giving the Food Inspector the power to take a sample of any article of food from any person selling such article. However, the court found that there was no provision in the Act or the Rules that prevented the Food Inspector from purchasing a quantity larger than 450 grams or that required the merchant to break open a sealed container to sell a lesser quantity. 2. The court held that the merchant's refusal to sell a quantity less than the entire container was not an offense under Section 16(1)(b) of the Act because the Food Inspector's failure to obtain the sample was due to his own misapprehension of the law and not because of any act on the part of the merchant.
Final Decision: The court dismissed the appeal and upheld the acquittal of the merchant.
2. The facts in this case are not disputed. The respondent No. 1 is a Kirana merchant, who deals, among other articles, in a product called Anik Ghee", which is product of Hindustan Lever Limited. The complainant went to the shop of the respondent No. 1 at about 11.20 A. M. on 19-8-1966 and asked him to sell him a sample of the quantity of 450 grains out of a sealed container weighing 2 kg. which was kept for sale in the shop by the accused. The complainant served a notice on the respondent No. 1 that the sample of the food article "guaranteed pure Anik Ghee" which was stocked in his grocery shop for sale in the packing of 2 kg. was to be sent for analysis, and therefore, 450 grams of "Anik Ghee" should be given to the Food Inspector. The respondent No. 1 received this notice and endorsed thereon that he sold packed tins of "Anik Ghee" of Hindustan Lever Limited, Bombay, and that he did not sell in small quantity from the packed tin. He further stated "if you require, you can purchase a packed tin."
2A. The Food Inspector, however, carried the impression that he had no power to purchase a quantity larger than 450 grams of sample of food-stuff, and therefore, He did not purchase the whole container. He prepared a memo reciting all these facts in the presence of the two Panchas whom he had taken with him. According to the Food Inspector, this failure of the respondent No. 1 to sell 450 grams of Anik Ghee after breaking open the sealed container amounted to preventing him from taking a sample and e had thus committed an offence under Section 16(1)(b) of the Act. He, therefore, filed a complaint in the Court of the Judicial Magistrate, First Class, Akot, reciting all these facts. It is not necessary to reproduce all the contents of the complaint except the one relating to the explanation of the complainant why he did not purchase a larger quantity than 450 crams. In the complaint it is stated as follows:--
"Under rules made under the Act, the quantity of sample of the said Article of Food-ghee to be supplied to the Public Analyst for analysis is specified to be 150 grams. The quantity of sample is to be separated into three parts before sending one of the parts for analysis to the Public Analyst, and therefore the complainant had no authority to collect the quantity of the sample in any amount except than 450 grams."
(Underlining (here in ) is mine.)
3. The complainant examined himself and admitted in the witness-box that the accused was willing to sell the whole tin if the complainant so wanted. He sticks to the explanation why he did not purchase the whole tin by stating that as per law he could not take more than 450 grams of sample. The defence of the accused was that he was not permitted to sell retail quantity of Anik Ghee and this defence was put to the complainant in cross-examination, and in cross-examination the complainant admitted that the accused had not sold any loose Ghee from the tin in question. The warranty which was issued to the dealer by the Hindustan Lever Limited in respect of this article was put to the complainant in cross-examination.
4. The trying Magistrate on these admitted facts found that there was no provision of law which prevented the Food Inspector from purchasing a larger quantity than 450 grams of sample. He thus took the view that because the complainant did not purchase the whole tin or was unable to purchase the same it did not mean that the accused prevented him from taking the sample. He, therefore, acquitted the accused. Against this acquittal this appeal has been filed.
5. The learned counsel for the appellant contends that having regard to the provisions of Rules 22 and 22-A of the Prevention of Food Ad
