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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).

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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:

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"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

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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.