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GAUHATI HIGH COURT
BAHARUL ISLAM, Ag.C. J. AND D. PATHAK, J.
J. L. ROY, COMPLAINANT
VERSUS
AMRIT LAL DEY AND ANOTHER, ACCUSED-RESPONDENTS.
Criminal Appeal No. 55 of 1973,
Decided on : 1 -6 -1979
PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTIONS 7, 13, 16, 17 - RULES 4 - ADULTERATED ATTA - ANALYSIS REPORT - PUBLIC ANALYST VS. DIRECTOR OF CENTRAL FOOD LABORATORY - INTERPRETATION - LIABILITY OF PARTNERS IN A FIRM.
Fact of the Case:
The appellant, a Food and Health Inspector, filed a complaint against the respondents for violating Section 7 of the Prevention of Food Adulteration Act, 1954, by storing and selling adulterated atta. The Public Analyst's report indicated that the atta sample was adulterated, but the Magistrate acquitted the respondents, relying on the variance between the Public Analyst's report and the report of the Director of the Central Food Laboratory.
Finding of the Court:
The court held that the Magistrate erred in comparing the two reports and giving the benefit of the variance to the accused. The court clarified that under Section 13(3) of the Act, the report of the Director supersedes the report of the Public Analyst, and the Magistrate should not have considered the Public Analyst's report.
Issues: 1. Whether the Magistrate erred in comparing the reports of the Public Analyst and the Director of the Central Food Laboratory and giving the benefit of the variance to the accused? 2. Whether the respondents, as partners in a firm, could be held vicariously liable for the sale of adulterated atta?
Ratio Decidendi: 1. The court interpreted Section 13(3) of the Prevention of Food Adulteration Act, 1954, and held that the report of the Director of the Central Food Laboratory supersedes the report of the Public Analyst. Therefore, the Magistrate should not have considered the Public Analyst's report when reaching a decision. 2. The court interpreted Section 17 of the Act and held that a partner in a firm can be held vicariously liable for the sale of adulterated food, even if they did not directly sell the food themselves.
Final Decision: The court set aside the Magistrate's order of acquittal and convicted the respondents under Section 16(1)(a)(i) of the Act for violating Section 7(1) of the Act. The court sentenced each respondent to three months of imprisonment and a fine of Rs. 500, with an additional 15 days of imprisonment in default of payment.
Baharul Islam, Ag. C. J. :- This appeal is by the complainant, Shri J. L. Roy, Food and Health Inspector of Karimganj Municipality, and is directed against an order passed by the Sub-Divisional Magistrate (Judicial), Karimganj (hereinafter 'the Magistrate') acquitting the two respondents.
2. The appellant lodged a complaint before the Magistrate with a prayer for prosecuting the respondents under S. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter 'the Act') for violation of S. 7 of the Act. He alleged in the complaint petition that the respondent stored and sold adulterated atta. He further alleged that on 20-6-70 respondent, Amrit Lal Dey, sold to him a sample of atta weighing 600 grams for 0.48 paise. He divided the sample into three parts, put each part into a container, handed over one such container to respondent Amrit Lal, sent one container to the Public Analyst, and retained the third one with him. He received a report from the Public Analyst who opined that the sample was adulterated. On necessary sanction having been obtained, the two respondents were charged by the Magistrate under Section 16 read with S. 7 of the Act. The respondents pleaded not guilty to the charges. The prosecution examined two witnesses, namely, the appellant as P. W. 1 and one Satya Nath Choudhury as P. W. 2.
3. The Public Analyst, who sent in his report (Ext. 3) to the Magistrate gave the result of the analysis of the sample of atta sent to him as follows :
"Gluten ... 9.63%
Total Ash ... 2.49%
Alcoholic Acidity as H2 S04 (90% alcohol) ... 0.13%
Powdered Rice and Maize ... Present".
In his opinion the sample of atta was adulterated.
Objections having been raised by the respondents to the Public Analyst's report (Ext. 3) the sample which had been given to them was sent to the Director of the Central Food Laboratory (hereinafter 'the Director'). The result of the analysis of the sample of atta by the Director was as follows :
"Moisture (determined as specified) = 14.1%
Total Ash = 2.6% on dry weight basis.
Ash insoluble in dil. HCl = 0.07% on dry weight basis 20
Gluten = 9.8% on dry weight basis.
Alcoholic acidity (with 90% alcohol) xpressed as H S04 = 0.07% on dry weight basis.
Rodent hair and excreta = Absent.
Dirt and grit = Neligible.
Microscopic examination = Wheat starch present".
In his opinion also the sample of atta was adulterated.
4. The learned Magistrate compared, illegally, the two reports, i.e. Ext. 3 of Public Analyst and the report of the Director and held -
"Now after comparing the report of the Analyst of Assam with the report of the Central Food Laboratory it is seen that these two reports vary to a great extent......where the report from two sources one by Public Analyst and the other from the Director, Central Food Laboratory were at variance, the benefit of divergence goes to the accused inasmuch as it would be difficult to act upon the divergent analytical result."
5. The relevant provisions of S. 13 of the Act are as follows :-
"13. Report of Public Analyst. (1) The public analyst shall deliver, in such form as may be prescribed, a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis.
(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-cl. (i) or sub-cl. (iii) of Cl. (c) of sub-sec. (1) of S. 11 to the Director of the Central Food Laboratory for a certificate and on receipt of the application, the court shall first ascertain that the mark and seal or fastening as provided in Cl. (b) of sub-sec. (1) of S. 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the re
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