PETITIONER:
SARJOO PRASAD
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT:
16/12/1960
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
KAPUR, J.L.
HIDAYATULLAH, M.
CITATION:
1961 AIR 631 1961 SCR (3) 324
CITATOR INFO :
R 1966 SC 43 (4)
RF 1966 SC 128 (16)
RF 1975 SC1309 (18)
ACT:
Food Adulteration-Sale of adulterated oil by servant-
Servant, whether liable-Mens rea, if necessary-Second
offence–Sentence, lesser than minimum prescribed when can
be given–Prevention of Food Adulteration Act, 1954 (37 of
1954) ss. 7, 16.
HEADNOTE:
The appellant was an employee of one T, a vendor of edible
oils. He was found to have sold adulterated mustard oil and
he and T were prosecuted for an offence under S. 7 read with
S….16 of the Prevention of Food Adulteration Act, 1954.
Both were found guilty; T was sentenced to pay a fine of Rs.
200, but in view of a previous conviction the appellant was
sentenced to one year’s rigorous imprisonment and RS. 2,000
fine, the minimum prescribed by S. 16(ii). The appellant
contended: (i) that a servant who sold food on behalf of his
employer was not liable unless it was known that he had done
so with the knowledge that the food was adulterated, and
(ii) that there were special and adequate reasons justifying
the imposition of a penalty less than the minimum prescribed
for a second offence.
Held, that S. 7 of the Act enjoins everyone, whether an
employer or a servant, not to sell adulterated food, and
anyone who contravenes this provision is punishable under S.
16 without proof of mens rea.
325
Re: S. Moses, I. L. R. (1959) Mad. 418, disapproved.
Held, further, that the facts that the appellant was a mere
employee of T, that it had not been shown that he had made
any profit for himself, and that T had been sentenced to a
fine of RS. 200 only, were special and adequate reasons
within the meaning of the proviso to S. 16(ii) to justify
the imposition of a penalty less than the minimum prescribed
by S. 16(ii).
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 147 of
1959.
Appeal by special leave from the judgment and order dated
July 21, 1959 of the Allahabad High Court in Criminal
Revision No. 503 of 1958 arising out of the judgment and
order dated March 27, 1958, of the Sessions Judge,
Allahabad, in Criminal Appeal No. 745 of 1957.
C. B. Agarwala and K. P. Gupta, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
1960. December 16. The Judgment of the Court was delivered
by
SHAH, J.-The appellant, Sarjoo Prasad was convicted by P. M.
Agra, Magistrate First Class, Allahabad of an offence under
s. 7 read with s. 16 of the Prevention of Food Adulteration
Act, 1954 (37 of 1954)hereinafter referred to as the Act-and
in view of a previous conviction for a similar offence was
sentenced to suffer rigorous imprisonment for one year and
to pay a fine of Rs. 2,000. The conviction and sentence
were confirmed in appeal by the Court of Session at
Allahabad and by the High Court of Judicature at Allahabad
in revision. The appellant has appealed to this court with
special leave under Art. 136 of the Constitution.
The appellant was an employee of one Thakur Din who carries
on business at 92-C, Mirganj, Allahabad as a vendor of
edible oils and provisions. On September 22, 1956, a Food
Inspector of the Allahabad Municipality purchased from the
appellant a sample of mustard oil exposed for sale in the
shop which on analysis was found to be adulterated with
linseed oil. Thakur Din and the appellant were prosecuted
in the court of the First Class Magistrate, Allahabad for
326
selling adulterated food. The Magistrate convicted Thakur
Din and the appellant and sentenced Thakur Din to pay a fine
of Rs. 200 and the appellant to suffer rigorous imprisonment
for one year and to pay a fine of Rs. 2,000.
The expression “sale” is defined by s. 2(xiii) in the Act as
meaning sale of any article of food, whether for cash or on
credit or by way of exchange and whether by wholesale or
retail, for human consumption or use, or for analysis, and
includes an agreement for sale, an offer for sale, the
exposing for sale or having in possession for sale of any
such article, and includes also an attempt to sell any such
article. The definition includes not only actual sale but
agreement for sale, offer for sale, exposure for sale and
even possession of articles for sale and attempt to sell.
The appellant was in charge of the shop at the time when
mustard oil was sold to the Food Inspector. Mustard oil was
exposed for sale and it was in the possession of the
appellant and he actually sold it. But counsel for the
appellant contends that by s. 7 of the Act, the owner of a
shop alone is prohibited from selling adulterated food, and
a servant employed in the shop who sells food on behalf of
the employer is not a “person” against whom the prohibition
operates. Counsel says that an employee in a shop who with
knowledge that an article of food is adulterated, sells it
is guilty of aiding and abetting his employer, but without
such knowledge he is not liable to be punished for
contravening the provisions of the Act.
Section 7 of the Act in so far as it is material provides:
“No person shall himself or by any person on his behalf —–sell—
—
(1) any adulterated food;
The material part of s. 16(1) provides:
“If any person,
(a) whether by himself or by any person on his
behalf—–sells—–any article of food in contravention..of
the provisions of this Act or
327
he shall……………… be punishable………..
That the mustard oil sold by the appellant was adulterated
has not been challenged in this appeal. The appellant’s
plea that the mustard oil delivered to the Food Inspector
was not meant for sale was disbelieved by the Trial
Magistrate and that view has been confirmed by the Court of
Session and the High Court. The expression “person” has not
been defined in the Act and in the context in which that
expression occurs, it prima facie includes every one who
sell adulterated food. By the collocation of the
expression, “no person shall himself or by any person on his
behalf”, the employer alone is not prohibited. The
intention of the Legislature is plain. Every person, be he
an employer or an agent is prohibited from selling
adulterated food and infringement of the prohibition is by
s. 16 penalised. By s. 19 in a prosecution for an offence
pertaining to the sale of any adulterated article of food,
it is no defence merely to allege that the vendor was
ignorant of the nature of the substance or quality of the
food sold by him. Such a defence can only succeed if the
person charged with selling adulterated food proves that the
article of food was purchased as of the same in nature, sub-
stance and quality as that demanded by the purchaser with a
written warranty in the prescribed form, that he had no
reasons to believe at the time when he sold it that the food
was not of such nature, substance, and quality and that he
sold it in the same state as he purchased it, and he submits
to the food inspector or the local authority a copy of the
warranty with a written notice that he intends to rely upon
it and specifies the name and address of the person from
whom he received it. Prohibition of sale of adulterated
food is evidently imposed in the larger interest of
maintenance of public health. The prohibition applies to
all persons who sell adulterated food, and for contravention
of the prohibition all such persons are penalised. Because
the Legislature has sought to penalise a person who sells
adulterated food by his agent, it cannot be assumed that it
was intended to
328
penalise only those who may act through their agents. If
the owner of a shop in which adulterated food is sold is
without proof of mens rea liable to be punished for sale of
adulterated food, we fail to appreciate why an agent or a
servant of the owner is not liable to be punished for
contravention of the same provision unless he is shown to
have guilty knowledge.
The argument that the Legislature could not have intended
having regard to the fact that a large majority of servants
in shops which deal in food are illiterate to penalise
servants who are not aware of the true nature of the article
sold has in our judgment no force. The intention of the
Legislature must be gathered from the words used in the
statute and not by any assumptions about the capacity of the
offenders to appreciate the gravity of the acts done by
them. There is also no warrant for the assumption that the
servants employed in shops dealing in food stuff are
generally illiterate.
The Legislature has, in the interest of the public health,
enacted the Act and has provided that all persons are
prohibited from selling adulterated food. In the absence of
any provision, express or necessarily implied from the
context, the courts will not be justified in holding that
the prohibition was only to apply to the owner of the shop
and not to the agent of the owner who sells adulterated
food. The view taken to the contrary by the Madras High
Court in Re S. Moses (1) is, in our judgment, erroneous.
There is no substance in the contention that the conviction
of the appellant was not for a second offence committed by
him under the Prevention of Food Adulteration Act. The
prosecutor produced before the court an extract dated April
7, 1956 of a judgment in criminal case No. 208 of 1956 which
showed that one “Sarjoo Prasad” had been convicted by P. N.
Jauhari, Magistrate F-Class, Allahabad of the offence of
adulteration of mustard oil and sentenced to pay a fine of
Rs. 80. In the view of the Magistrate, the extract related
to the appellant. The name of the person convicted and his
father’s name and residence were identical with the name of
the appellant,
(1) I.L.R. (1959) mad. 418.
329
his father’s name and his residence. All the details given
in the extract tallied with the description of the
appellant. In the memorandum of appeal filed to the Court
of Session challenging the conviction recorded by the
Magistrate First Class, it was not contended that the person
convicted in the earlier case was some person other than the
appellant.
But the appellant was merely an employee of Thakur Din. It
is not shown that he made himself any profit out of the
transaction. Thakur Din has been sentenced to pay a fine of
Rs. 200 only. The offence committed by the appellant is a
repetition of a similar offence committed by him a few
months earlier, but we think that having regard to all the
circumstances, this is a case in which there are special and
adequate reasons which would justify imposition of a penalty
less than the minimum prescribed by a. 16(ii) of the Act.
We reduce the sentence to imprisonment to three months and
we remit the fine. Subject to this modification, the appeal
is dismissed.
Appeal dismissed.