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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: K.RAJESHWAR RAO

DATE OF JUDGMENT14/11/1991

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KULDIP SINGH (J)

CITATION:  1992 AIR  240            1991 SCR  Supl. (2) 251  1992 SCC  (1) 365        JT 1991 (4)   309  1991 SCALE  (2)988

ACT:     Prevention  of  Food  Adulteration  Act,  1954--Sections 16(1)  (a)(i),  7(1) --Offence  under---Object  and  purpose oflegilation--       Proof       of        offence-Essential ingredient---Prosecution’s duty under indicated.     Prevention  of  Food  Adulteration  Act,  1954--Sections 16(1)(a)  (i), 7(1) ---Offences under---Sale of  adulterated ood article by son of the owner-- Prosecution--Validity  of. Prevention   of  Food  Adulteration   Act,   1954----Section 20--SanctionImportance of---Criteria in issuing sanction.     Prevention  of  Food  Adulteration  Act,   1954--Section 20--"Person"  "himself or any person on  his  behalf"---Con- strutction---Owner’s son comes under.     Prevention  of  Food  Adulteration  Act,   1954--Section 2(ia)--"Adulterated"--Construction--To be construed widely.     Prevention  of Food Adulteration .4 or,  1954---Sections 16(1)(a)(i), 7(1)  offence committed  undet--Sentence--Lapse of  15 years from the date of offence--Held fine of Rs.  500 sufficient.

HEADNOTE:     On  13.3.1976,  it was found that  the  respondent  sold adulterated  cumin(Jira). The Food Inspector  purchased  the Jira  under  the provisions of the Act and on  analysis  the Public Analyst found that it was adulterated.     The  respondent  was charged u/s.16(1)(a)(i)  read  with section  7(1)  of the Prevention of Food  Adulteration  Act, 1954.     The  Trial Court acquitted the respondent on the  ground that his father was the owner of the shop and assuming  that if that fact had been brought to the notice of the sanction- ing authority u/s. 20 of the Act, it would not have  permit- ted to prosecute the respondent, the son of the owner of the shop and relying on the Jagannath Sahu’s 252 case (1973)(2) Cuttack Weekly Reporter, 1536.     The  High Court on appeal confirmed the acquittal  order of the trial court.     On  the  question,  whether it was  necessary  that  the respondent should be the owner of the shop for being  prose- cuted  for the offences u/s. 16(1)(a)(i) read  with  section

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7(1)  of  the Act, allowing the appeal filed by  the  State, this Court,     HELD:    1. The Act is a welfare legislation to  prevent health hazards by consuming adulterated food.  The mens  tea is not an essential ingredient. It is a social evil and  the Act prohibits commission of the offences under the Act.  The essential ingredient is sale to the purchaser by the vendor. It  is not material to establish the capacity of the  person vis-a-vis  the owner of the shop to prove his  authority  to sell  the adulterated food exposed for sale in the shop.  It is enough for the prosecution to establish that the  person, who sold the adulterated article of food had sold it to  the purchaser  (including  the Food Inspector )  and  that  Food Inspector  purchased the same in strict compliance with  the provisions of the Act. [256 BC]     2.  The sanctioning authority has to consider the  mate- rial placed before it whether the offence of adulteration of food was committed and punishable under the Act.  Once  that satisfaction  is reached and the authority is  competent  to grant the sanction, the sanction is valid. It is not  neces- sary  for  the sanctioning authority to  consider  that  the person  sold  is  the owner, servant, agent  or  partner  or relative of the owner or was duly authorised in this behalf. [256 C-D]     3.  Grant of sanction to prosecute for an offence  under the Act is a condition precedent.  If no valid sanction  was granted by the authority, certainly the accused is  entitled to the benefit of statutory infraction, though it is techni- cal  and be acquitted of the offence. The relevant  criteria under  section  20(1) is the competence of  the  officer  to grant  the sanction for the offence. it does  not  postulate whether the person sold should be the owner or a servant  or a person on behalf of the owner (son of the owner). [255 A]     4.   No  ’person’  shall himself or any  person  on  his behalf manufacture for sale, or store or sell or  distribute any adulterated food etc.  The phrase "himself or any person on  his  behalf" obviously included any  other  person  like servant, son, father or agent irre- 253 spective of the relationship legal or jural etc. The  person so  sold during the course of business either the  owner  or the person that sold the adulterated food or article of food or both are liable to prosecution. [255 B-C]     5.   If the article sold by a vendor is not of  the  na- ture, substance or quality demanded by the purchaser, who is to  purchase, the article is adulterated. If the quality  or variety of the article fall below the prescribed standard of its  constituents are present in quantities not  within  the prescribed  limits of variability, is also adulterated.  The food or article of food is adulterated, if it is not of  the nature,  substance or quality demanded by the purchaser  and sold by the seller and is to his prejudice, or contains  any foreign  substance in excess of its prescribed limit, so  as to  effect  injuriously, the nature,  substance  or  quality thereof. The word ’adulterated’ was used widely. [254 F]     6.   As  15 years have passed by from the  date  of  the offence,  the  ends  of justice may not serve  to  send  the respondent  to imprisonment. Suffice that he bas  undergone, all  these years, the agony of the prosecution. In the  cir- cumstances a sentence of fine of a sum of Rs.500 is imposed, in default the imprisonment for a period of one month.  [256 G]       Jagannath Sahu v. Food Inspector, Jaipur Municipality, 1973(2) Cuttack Weekly Reporter 1556, overruled.       Sarjoo  Prasad v. The State of U.P., [1961]  3  S.C.R.

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324;  Ibrahim Haji Moideen & Anr. v. Food Inspector &  Ant., 1976 (2) All India Prevention of Food Adulteration Cases 66, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 323 of 1980.     From the Judgment and Order dated 1.5.1979 of the Orissa High Court in Government Appeal No. 38 of 1977. Raj Kumar Mehta for the Appellant. S.G. Sambandhan for the Respondent. The Judgment of the Court was delivered by     RAMASWAMY,  J.  The respoudent was found  to  have  sold adulterated cumin (Jira) on March 13, 1976 punishable  under s.16(1)(a)(i)  read  with s.7(1) of the Prevention  of  Food Adulteration Act, 1954, for short ’the Act’. Both the courts found as a fact that the adulterated cumin was 254 exposed for sale and PW-1, the Food Inspector, purchased the cumin (Jira) under the provisions of the Act and on analysis by  the  Public Analyst it was found that  it  contained  9% foreign seeds as against permissible 7.0%; inorganic  (dust, stones, lumps of earth etc.) 0.2% and organic (chaff, sterm, stipules,  etc.) at 1.8%.  Accordingly it was found to  have been adulterated. The Magistrate and the High Court  acquit- ted  the respondent on the sole ground that his father  Appa Rao was the owner of the shop. Had that fact been brought to the  notice of the sanctioning authority under s.20  of  the Act,  it would not have permitted to prosecute the  respond- ent,  the son of the owner. Accordingly placing reliance  on Jagan  Nath  Sahu v.  Food  Inspector,  Jaipur  Municipality (1973) 2 Cuttack Weekly Reporter 1556 acquitted the  accused and was confirmed by the High Court.     The  sole  question that emerges  for  consideration  is whether  it is necessary that the respondent should  be  the owner  of  the shop for being prosecuted  for  the  offences under  s. 16(1)(a)(i) read with s.7(1) of the Act.  Sub-sec- tion (1) of s.20 of the Act reads thus:               "(1) No prosecution for an offence under  this               Act shall be instituted except by, or with the               written  consent of the Central Government  or               the State Government or a local authority or a               person  authorised in this behalf, by  general               or special order, by the Central Government or               the State Government or a local authority". Proviso is not necessary. Hence omitted.     Section  2 of the Act defines ’adulterated’ that if  the articles sold by a vendor is not of the nature, substance or quality  demanded by the purchaser, who is to purchase,  the article  is  adulterated. If the quality or variety  of  the articles fail below the prescribed standard or its constitu- ents  are  present in quantities not within  the  prescribed limits of variability, is also adulterated. It would, there- fore, be clear that the word ’adulterated’ was used  widely. If the food or article of food is adulterated, if it is  not of the nature, substance or quality demanded by the purchas- er  and  sold  by the seller and is to his  prejudice  ,  or contains  any foreign substance in excess of its  prescribed limit, so as to effect injuriously, the nature, substance or quality thereof. In view of the finding of the courts  below that cumin (Jira) was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act. What s.20  envisages is that no prosecution for an offence  under

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the  Act  should be instituted except by or by  the  written consent of the Central Government or the State Government or a  local authority or a person otherwise authorised in  this behalf by general or special order by the Central Government or the State Government or a 255 local  authority. Therefore, grant of sanction to  prosecute for  an offence under the Act is a condition precedent.  The relevant  criteria  under s.20(1) is the competence  of  the Officer  to grant the sanction for the offence. It does  not postulate  whether the person sold should be the owner or  a servant  or  a  person on behalf of the owner  (son  of  the owner).  Section  7 prohibits manufacture, sale  of  certain articles of food. No ’person’ shall himself or any person on his  behalf manufacture for sale, or store or sell  or  dis- tribute  (i) any adulterated food etc.  The phrase  "himself or  any person on his behalf’ obviously included  any  other person  like servant, son, father, or agent irrespective  of the  relationship  legal or jural etc. The  person  so  sold during the course of business either the owner or the person that  sold the adulterated food or article of food  or  both are liable to prosecution.     It  is not in dispute that the officer that granted  the sanction in this case is the competent officer as a delegate on  behalf  of  the local authority.  Undoubtedly,  a  valid sanction is a condition precedent. If no valid sanction  was granted by the authority, certainly the accused is  entitled to the benefit of statutory infraction, though it is techni- cal and be acquitted of the offence.     In Sarjoo Prasad v. The State of U.P., [1961] 3SCR  324, it  was contended that a servant who sold food on behalf  of his employer was not liable unless it was known that he  has done  it with knowledge that the food was adulterated.  This court  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 mensrea. This court repelled the  argu- ment  that the legislature could not have  intended,  having regard  to the fact that large majority of servants  in  the shops which deal in food are illiterate to penalise servants who  are not aware of the true nature of the  article  sold. The  intention of the legislature must be gathered from  the words  used in the statute and not by any  assumption  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. In the interest of  the public  health, the Act was enacted prohibiting all  persons from selling adulterated food. In the absence of any  provi- sion,  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. This view was reiterated in Ibrahim Haji Moideen & Anr. v. Food Inspector’ &  Anr., (1976) 2 All India Prevention of Food  Adulteration Cases 66. This court held that for the purpose of conviction under  charge  on  which A-2 was tried.  it  was  immaterial whether he was an agent or a partner of 256 A-1.  Once it is proved that he sold the  adulterated  arti- cles, he was liable to be convicted under s. 16(1) read with s.7 of the Act. The contention that it is only the owner  of the  shop that could be convicted was held to be  wholly  an unsustainable contention.     The  Act  is  a welfare legislation  to  prevent  health

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hazards by consuming adulterated food. The mensrea is not an essential  ingredient. It is a social evil and the Act  pro- hibits commission of the offences under the Act. The  essen- tial  ingredient is sale to the purchaser by the vendor.  It is  not  material to establish the capacity  of  the  person vis-a-vis  the owner of the shop to prove his  authority  to sell the adulterated food exposed for sale in the shop.   It is  enough for the prosecution to establish that the  person who sold the adulterated article of food had sold it to  the purchaser  (including  the  Food Inspector)  and  that  Food Inspector  purchased the same in strict compliance with  the provisions  of  the Act. As stated earlier  the  sanctioning authority  has  to  consider the material  place  before  it whether  the offence of adulteration of food  was  committed and  punishable  under the Act. Once  that  satisfaction  is reached  and the authority is competent to grant  the  sanc- tion,  the sanction is valid.  It is not necessary  for  the sanctioning  authority to consider that the person  sold  is the  owner,  servant, agent or partner or  relative  of  the owner or was duly authorised in this behalf.     We  have,  therefore,  no hesitation to  hold  that  the courts below committed manifest error of law causing miscar- riage  of justice in holding that the sanctioning  authority must  be apprised of the status of the person that sold  the adulterated  food article to the Food Inspector or the  pur- chaser.  Consequently,  the acquittal is set aside  and  the respondent  is held liable to be conviction and  accordingly convicted  under s.16(1)(a)(i) read with s.7(1) of the  Act. But  what  is the sentence to be imposed?  The  offence  had occurred  on March 13,1976 before the Amending Act has  come into force.  Under the unamended Act it was not mandatory to impose the minimum sentence. For reasons to be recorded  the Magistrate  may  impose the sentence, fine or both  for  the first  offence and it was mandatory to impose  minimum  sen- tence  for  second or subsequent offences.   As  stated,  15 years  have  passed by from the date of the offence  and  at this  distance of time the ends of justice may not serve  to send  the  respondent to imprisonment. Suffice that  he  has undergone,  all these years, the agony of  the  prosecution. But,  however, the sentence of fine of a sum of Rs.  500  is imposed  upon the respondent and he shall pay the  same.  In default  he shall undergo the imprisonment for a  period  of one month. The appeal is accordingly allowed. V.P.R.                                                Appeal allowed. 257