1976 Supreme(SC) 448

SUPREME COURT OF INDIA
P.N. BHAGWATI, V.R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.
Kisan Trimbak Kothula and others, Appellants
Versus
State of Maharashtra, Respondent.
Criminal Appeal No. 388 of 1976,
D/17-11-1976.
Advocates appeared
Mr. Gobind Das, Sr. Advocate, (M/s. A. K. Mathur and A. K. Sharma, Advocates with him), for Appellant; Mr. M.M. Shroff, Advocate, for Respondent; Mr. M. C. Bhandare, Sr. Advocate, (Mrs. Sunanda Bhandare, Advocate and M/s. M. S. Narasimhan, K. C. Sharma and H. R. Khanna, Advocates with him), for both the Parties.

Headnote:

Prevention of Food Adulteration Act, 1954 - Six months imprisonment – Appeal against conviction - Whether by himself or by any other person on his behalf or stores sells or distributes any article of food - Whether proviso (i) to Section 16(1) takes in offence in question - Whether adulteration of article of food is of species exclusively covered by sub-clause (1) of section 2(i) or it is miss-branded under sub-clause (k) of clause(ix) of that section - Particulars and the setting of prosecution facts need to be narrated - On October Food Inspector of Nasik visited the small restaurant of the first accused firm found a few liters of milk kept for sale and enquired about quality of the milk - He was told by accused No. 3 that it was cow’s milk – Thereupon he brought of such milk from accused No. 3 statutory formalities under the Act were complied with and one of three sealed bottles was sent to Public Analyst from whom the report was received that (a) the milk was not cows but buffalos milk fat deficiency and the milk contained of added water - A prosecution ensued Food Inspector was examined and cross-examined and a charge was framed after the accused were questioned and their written statements filed into Court - 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 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 by taken on sentence - They further pleaded in extenuation that their servant purchased milk from the bazaar reported that it was cow’s milk and that it was on that basis that accused told the Food Inspector that what was being sold was cow’s milk - Trial Court acting on the plea of guilt convicted all the accused but viewed the offence as a somewhat venial deviation 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 Magistrate mercifully declined to apply the Probation of Offenders Act Magistrate observed in conclusion: It is necessary to give accused Nos. 2 and 3 one more chance to improve themselves and do honest business - Firm, accused No. 1, was punished with fine; accused Nos. 2 and 3 partners also were punished under Section 7(1)(ii) read with Section 16(1)(e)(1) of Act each being sentenced to a fine - Even here court 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 remembered that the mandate of humanist jurisprudence is sometimes harsh – Held, Short argument is that the liability of a partner of the firm when another partner has committed the offence depends on the application of Sec. 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 means read against accused No. 2 which means that Section 17(2) is inapplicable to create liability against accused No. 2 - Even so Section 17(1) may apply if the absent accused is in charge of or responsible for the conduct of the business of the firm 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 Section 17(1) will apply unless the proviso salvages the second accused - 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 offence was committed without his knowledge or that he exercised all due diligence to prevent commission of such offence - If accused concerned is absent at the time of commission of offence and circumstances are eloquently such as to lead to clear inference that there was no proof of scanter regarding the commission of the particular offence knowledge being absent immunity from conviction for that offence follows - In the instant case 2nd accused was absent at the time the milk was sold – Furthermore quantity of milk in the shop was bought from the bazaar by the servant in the shop - Crucial fact which ropes in the accused for the offence of misbranding under Section 2 (ix) (c) is that article when sold was represented to be cow’s milk - This was adventitious representation made on the spot by third accused on his own so far as the evidence discloses - It is not as if business of the brothers was to palm off buffalos milk as cow’s milk on unwary buyers - Had there been a well-grounded suggestion that this sharp practice had been restored to more than once we would unhesitatingly have inferred knowledge of misbranding even on part of absent partner - Such is not the case and so that 2nd accused is entitled to acquittal on this charge - Appeal dismissed