At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE MUDHOLKAR
For the Appearing Parties: G.A. Subnis, K.P. Karnik, M.A. Rane, V.B. Rege, Y.B. Gupte, Advocates.
(1) THE applicant has been convicted by the Judicial Magistrate, First Class. Third Court, Thana, of an offence under Section 16 (1) (a) of the Prevention of Food Adulteration Act, 1954, and sentenced to pay a fine of Rs. 200/- His appeal from the conviction and sentence was dismissed by the Additional Sessions Judge, Thana.
(2) IT is common ground that Food Inspector Shimpi of Thana went to the shop of the applicant on 12-7-1956 and purchased 3/8th seer of Begum ghee for Rs. 1/4/- after informing the applicant's servant Fulchand Faujmal, who was on duty in the shop at the time, that he intended to send a sample of the ghee for analysis to the Public Analyst. He then divided the ghee into three samples, one of which was given to Fulchand, one was sent to the public Analyst and the third was kept by the Inspector himself. The report of the Public Analyst showed that the sample of ghee c
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ntained 21. 86 per cent foreign fat. After obtaining the requisite sanction of the administrator of the Thana Borough Municipality, the Inspector filed the complaint in question. (3) IT is contended on behalf of the applicant that the complaint as it was originally filed is bad in law because it was based upon a sanction which stated that the name of the accused was budhmal Kantilal. Now it may be mentioned that the applicant trades in the name of Budhmal kantilal and that is how the mistake had occurred. Later when the mistake that the applicant's name was not Budhmal Kantilal but Budhmal Foujmal, was discovered, the complainant had the name corrected. It is contended, however, on the applicant's behalf that the original sanction was in the name of a wrong person and therefore, it would not be rectified, nor could a complaint filed on the basis of such a sanction be held to be in proper form. In my opinion, there is no substance in this contention. There was merely an error in specifying the name of the applicant and that is all. At no time was Shimpi in doubt as to whom he wanted to prosecute. (4) IT is then contended that the applicant not being present at the time of the actual sale of the ghee, he was not liable to be prosecuted. The learned Counsel for the applicant, referring to the decision of the Privy Council in Srinivas Mall v. Emperor, 49 Bom LR 638: (AIR 1947 PC 135), and three other decisions following this decision, contended that an offence under the Prevention of Food Adulteration Act being of a serious nature and being liable to be punished by a substantial sentence of imprisonment, it i necessary for the prosecution to establish mens rea and he says that as the applicant admittedly was not present when the sale was made, he cannot be convicted under Section 16 (1) (a) of the Act. It is, no doubt, true that in offences which are punishable with substantial sentences of imprisonment, mens rea would have ordinarily to be established by the prosecution. But that does not mean that the Legislature is incompetent to make a law where under an offender will be liable to suffer even a long term of imprisonment though mens rea is not established. Now Section 7 of the Act is in the following terms:"Prohibition of manufacture, sale etc. of certain articles of food -- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -- (i) any adulterated food . . .?Upon a plain reading of this section it appears that the master is liable even for the acts of his servant, i. e. , he is vicariously liable. It is, however, contended on behalf of the applicant that this section has to be read along with Section 16 and that the two sections should be construed in a harmonious way. If they are construed according to the learned Counsel, it would mean that for the master to be liable for the act of the servant, it would have to be established that the act was done by the servant in the presence of the master. It seems to me that this would be importing something in the section which is quite foreign to the object of the section. Apart from that, I am of the opinion that under Section 7 the master would be liable for the acts of his servant committed by him in the course of his ordinary duties, and that when a servant sells any commodity or any article of food stocked for sale by the master of the shop, the master will be deemed to have authorised the sale of such article by the servant, and if it turns out that article is adulterated within the meaning of Section 2 (i) (a) of the Act, the master will also be liable. (5) LASTLY, it was contended that ghee or pure ghee was not defined by the rules which were promulgated in the year 1955 under the provisions of the Prevention of Food Adulteration Act, and that the mere fact that the ghee purchased by Shimpi was found to contain 21 per cent of foreign fat would not render the applicant liable under Section 16 (1) (a) of the Act. Now, the word "adulterated" has been defined in Section 2 (i) of the Act. It will not be necessary to refer to the entire definition, but it will suffice to refer to clause (a) thereof, which is as under:" (i) "adulterated" -- an article of food shall be deemed to be adulterated - (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;"Now, here what was intended to be purchased was pure ghee. But what has been sold was ghee which contained 21 per cent of foreign fat. It is true that ghee has not been defined, but pure ghee must on the face of it be deemed to exclude foreign fat. It is, however, said that the Food inspector only asked for Belgaum Ghee and it is possible that Belgaum Ghee may usually contain foreign fat. The tin ut of which the sample was taken bears a liable which says that it contains "pure ghee". From this it would follow that what was intended to be sold and intended to be purchased was pure ghee, though in fact it was not pure ghee but adulterated ghee. Section 7 of the Act prohibits the sale of any adulterated food. Section 16 makes the sale of adulterated food punishable at law. Therefore, apart from the reasons given by the learned Additional sessions Judge, it must be held that the applicant is liable to be punished under Section 16 of the act for the sale of adulterated ghee by his servant.(6) THE learned Additional Sessions Judge has held that, though the expression "ghee" has not been defined under the rules made under the present Act the definition contained in the rules made under the Act of 1925 still holds good. According to the learned Counsel for the applicant by virtue of the provisions of Section 25 of the Prevention of Food Adulteration Act, 1954, the rules framed under the Act of 1925 stood repealed immediately after the promulgation of the rule made under the present Act. These rules were promulgated in September 1955 before the alleged offence was committed. Therefore, according to the learned Counsel, the definition contained in the rules framed under the old Act cannot be looked into. Now, Sub-section (2) of Section 25 of the new Act is in the following terms:"notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and byelaws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in fore until altered, amended or repealed by rules made under this Act. "From this it would follow that only such rules made under the old Act will cease to be in force as are inconsistent with or are repugnant with the provisions of the rules framed in 1955 or have been altered, amended or repealed by the rules made under the present Act. As a matter of fact, in the rules promulgated in September 1955 "ghee" was not defined. Therefore it is correct to say that the rule made under the old Act in respect of this matter was not altered by rules made under the repealing Act. Therefore, it continued to be in force even subsequent to 1955. I am informed by Counsel that "ghee" has now been defined by a rule made by the rule-making authority. If that is so, after the coming into force of that rule, the definition contained in the rule made under the Act of 1925 will cease to be operative. "ghee" is defined in Rule 2 (ix) of the rules framed under the Act of 1925 as follows: " 'ghee' means ghee prepared exclusively from the milk fat of the cow or buffalo or both. " now admittedly the ghee which was sold by the applicant's servant could not be said to be "pure ghee" under this definition inasmuch as it contained 21 per cent of foreign fat. (7) THERE is thus no substance in the application and it is accordingly dismissed. The Rule is discharged. (8) RULE discharged.
"1959 AIR (Bom) 497" == "1959 (61) BOM.L.R 444" == "1959 ILR(BOM) 1108"