A.R. Navkar, J.
1. Leave to file appeal was granted by this Court on 28-6-1979 and the appeal was registered as Criminal Appeal No. 175/1979. The accused was summoned by issuing a bailable warrant in the sum of Rs. 1,000/- for his appearance in the Court, Accordingly, the respondent/accused gave bail and appeared before this Court.
2. The respondent was convicted in Criminal Case No. 1043/1973 by Chief Judicial Magistrate, Guna by his order dated 14-8-1975 under S, 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 and was sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000/-. The respondent filed an appeal before the Sessions Court, Guna which was registered as Criminal Appeal No. 256/1975. In the said appeal the order of conviction was set aside by the learned Additional Sessions Judge, Guna on 4-2-1976. Against the said order of acquittal the present appeal is filed.
3. The undisputed facts of the case are that on the date of the occurrence the respondent was a supervisor in the Government Milk Scheme. The milk from dairy goes out for sale in sealed cans and it was carried by the servant. On 13-5-1973 a servant of the dairy was taking the milk in sealed cans and the seals could not be removed unless they were broken. The person, who was carrying the milk, was stopped by the Food Inspector of Municipal Committee, Guna. The Food Inspector took the sample from the can and paid one rupee. He also gave a receipt to that effect. The receipt, Ex.P.l is signed by the respondent.
4. The. prosecution case is that on 13-5-1975 Shri B. N. Gupta was the Sanitary-Cum-Food Inspector. His appointment was notified in Government Gazette on page 1124. Part I dated 22-9-1972. The Government appointed him as Food Inspector and he was given the power to investigate and report the matters under Prevention of Food Adulteration Act. On the date of incident he was sitting near Yakub Adda Talaiya Mohalla, Guna at about 8 in the morning, and he was checking the milk which was coming from outside in the Municipal Limits. At that time the servant of the dairy was carrying the milk belonging to the Government dairy in sealed cans. These cans could not be opened unless the seal was broken. Each can had a cork and if that cork was opened, then the milk could come out. Shri B. N. Gupta (PW 3) wanted to check the milk and for the purpose he gave Form No. 6 (Ex. P3) to the. servant who was carrying the milk. The servant informed him that the milk belongs to government dairy and therefore the Supervisor should be called for. Shri Gupta asked the servant to wait and he also asked the servant of the dairy to ask somebody else to call for Supervisor. When the Supervisors sent for, the respondent came there. Shri Gupta gave the respondent Form No, 6 and asked him to give milk for checking. The respondent took the Form and signed the receipt showing that he has received the Form. After this, Shri Gupta purchased 660 ML of milk as a sample for checking and paid him one rupee as the price of the milk. The receipt of the payment is Ex. PI which is also signed by the respondent. After taking the milk the Food Inspector took three empty bottles and divided the milk in three equal parts and after mixing 16 drops of formalin, the preservative, filled each bottle and sealed them. Out of them, one bottle was given to the respondent and receipt of receiving the same was taken from him. It is further alleged that the milk was sent to Gwalior for analysis. The report of the Public Analyst is Ex. P4 which was received on 22-5-1973, It shows that the milk was not up to the standard and as such the complaint was lodged against the respondent under the Prevention of Food Adulteration Act.
5. The respondent, on 9-3-1974, in his statement accepted certain facts which have been mentioned in para 2 of the judgment, but on 3-4-1975 he had denied all those facts saying that he had no knowledge about it. The defence of the accused was that he had no knowledge regarding the alleged adulteration. He has also stated that he was not given one bottle, out of the three, as alleged by the prosecution. Further, he has stated that when the incident took place, he was at his house and when he was asked to come where the milk was taken from the servant, he went there. Further, he had submitted that there is one O. S. D. (Officer on Special Duty) and he should be called, but as he was not available, he could not bring him. He came to inform this fact to the Food Inspector and it took him about 15 minutes and in this interval, the alleged seizure memo and the sealing of the bottle took place, that is to say, the sealing and the seizure memo and adding of pre- servative was not done in his presence, He has also stated that it was not his duty to see that the cans are filled with milk and after filling, they are, sealed. The Manager gives the work of selling the milk and the person, who is in charge of the shift, only warms the milk and fills the cans. It is not his duty to see whether the milk is adulterated or not.
6. After taking into consideration the complaint and the defence, the learned trial Court framed about five points for determination and finding all these points against the respondent, convicted him and sentenced as mentioned above. Then the matter was taken in appeal before the Additional Sessions Judge, Guna. He accepted the appeal and set aside the order of conviction and sentence passed by the learned trial Court, Against the order of acquittal, the present appeal is filed.
7. The learned Additional Sessions Judge, Guna framed two points for determination and they are: whether conviction of appellant is correct, and whether sentence is correct or it should be reduced. Before deciding these points, I may mention here what was stated before the learned Additional Sessions Judge, Guna by the counsel of the respondent and Public Prosecutor. In para 2 of the judgment it is said that - 'In appellate Court both appellant's counsel and Public Prosecutor expressed their regrets that it was an unfortunate case in which Shri Vishambhar Prasad Gupta, Food Inspector, Guna took sample of milk on 13-5-1973 in Guna. belonging to Government Milk Supply Scheme, Guna from a sealed can and sent its sample for analysis. It was found to be sub-standard. Both the learned Counsel were expressing their regrets that milk of Government Milk Supply Scheme should be found to be substandard and not conforming to the prescribed Standard for purity.' Before the appellate Court, the respondent submitted that he was not responsible, for manufacture, sale or distribution of Substandard milk. His job was only to collect cards and keep accounts of milk to be sold and already sold. Milk Supply Scheme and its Manager should have been prosecuted and hence Under Section 17(1) of Prevention of Food Adulteration Act he is not liable. Further, he had submitted that the sentence awarded is very harsh and he should be dealt with under Probation of Offenders Act.
8. After taking into consideration these points, the learned Additional Sessions Judge has come to the conclusion that the respondent is responsible for selling adulterated or sub-standard milk. The learned Additional Sessions Judge has also held that the accused was also prejudiced due to delay in filing the complaint. The prejudice which is shown by the learned appellate Court, is that after a lapse of 8 months of taking sample, which was given to the respondent it must have deteriorated and therefore he was not in a position to send it to Calcutta Laboratory for getting it analysed. Taking into consideration these two points, the learned Additional Sessions Judge, Guna set aside the conviction and sentence of the respondents and allowed the appeal.
9. After hearing the parties and going through the evidence on record, I am of the opinion that the appeal filed by the State deserves to be dismissed. The learned Panel Lawyer appearing on behalf of the State has drawn my attention to the case of State of Mysore v. Udipi Co-operative Milk Society Ltd., AIR 1960 Mys 80: 1960 Cri LJ 494 the relevant portion of which is as under:-
Where a co-operative milk society is prosecuted for an offence Under Section 16(1) read with Section 7, the liability of the accused is an absolute liability as seen from Section 17(1). It is unnecessary to prove that the officers of the Society knew that the milk offered for sale was adulterted milk.
The learned Counsel for the respondent has submitted before me the case of Polsan Ltd. v. Corporation of Calcutta : AIR1969Cal247 and drawn my attention to the observations made as under : -
Where a sample of ghee, taken from a sealed tin brought out of cold storage, contains more moisture and oleic acid than the standard prescribed in A 11.14 of Appendix I to the Prevention of Food Adulteration Rules, but the increases are within the possible range of variation under such circumstances, conviction for adulteration of ghee is illegal.
Before considering these two cases, it will be better if I will refer to Section 17 of the Act itself which deals with the offence by companies which is as under:-
17. Offence by companies:- (1) where an offence under this Act has been committed by a company:-
(a) (i) The person, if any, who has been nominated under Sub-section (2) to be in charge of, and responsible to the company for the conduct of the business of the company (hereafter in this section to be referred as the person responsible), or
(ii) where no person has been so nominated every person who at the time the offence was committed in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :
Provided that nothing in this Sub-section (shall render any such person, liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent commission of such offence.(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible along with the written consent of such director or manager for being so nominated:
Explanation: Where a company has different establishments or branches or different units in any establishment or branch different persons may be nominated under this Sub-section (in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.(3) The person nominated under Sub-section (2) shall, until (i) fur- ther notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii) he ceases to be a director or, as the case may be, manager of the company; or (iii) he makes a request in writting to the Local (Health) Authority under intimation to the company, to cancel the nomination (which request shall be complied with by the Local (Health) Authority), whichever is the earliest continue to be the person responsible Provided that where such person ceases to be director or, as the case may be Manager of the Company, he shall intimate the fact of such cesser to the Local (Health) Authority;
Provided further that where such, person makes a request under Clauses (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.(4) Notwithstanding anything contained in the foregoing Sub-section (s, where an offence under this Act has been committed by a company and it is provided that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, (not being a person nominated under Sub-section (2)) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
10. The provisions of this section came before the Supreme Court for application in the case of Smt, Manibai v. State of Maharashtra : 1974CriLJ451 in which it was observed that : -
For the sale of adulterated coconut oil by P. a co-licensee of the shop, his mother M, who was not in charge of nor was she actually conducting the business at the shop, cannot be held liable merely because she was the licensee of the shop. Even assuming that the business was owned by a firm or an association of individuals and M was a partner of the firm or a member of the association, M would not be liable for the sale Under Section 17(1) as she was not in charge of, and responsible for the conduct of the business.
The same view has been taken by the Punjab High Court in the case of Muni- cipal Committee, Amritsar v. Buta Singh, 1966 Cri LJ 1103, in which it is held that :-
In case of an offence by a Company it is the duty of the prosecution to prove that the person sought to be made liable under the Act was, at the time of the commission of the offence, in charge of, and was responsible to the Company for the conduct of its business. It is only when that initial onus is discharged by the prosecution in respect of a person, that the onus proving the fact referred to in the proviso that the offence was committed without his knowledge or that he exercised all due diligence for the prevention of such offence, would shift on him.
11. Now, I will consider the facts of the case. In the beginning, I may mention that the Government Milk Supply Scheme, Guna is not made an accused in the case and, secondly, the person who was carrying the milk on his bicycle, has also not been made an accused in this case. When the respondent came on the spot, he was asked to sign the receipt of payment and the Food Inspector purchased the milk from him. It is also clear from the evidence on record that the milk taken from the cans could not be tampered unless the seals were broken. It is not the case of the prosecution that the seals were broken and the respondent adulterated the milk. In his statement the respondent has also stated that his work was only to receive money in advance and to keep the accounts of the customers. He has also stated that the Manager of the Scheme appoints persons to sell the Milk and the duty of the Shift In charge was to warm the milk and to fill it in the cans. If this is the work of the respondent, then there is no nexus between the business carried by the Scheme and the alleged officer and as such the respondent cannot be convicted. Further, as I have stated above, the person, who was carrying the milk in sealed cans, was not charged with any offence. On the contrary, it is also clear from the evidence that the sealing of the sample, adding of preservative to the milk and memos were prepared when the respondent was not present on the spot.
12. It was argued by the learned Panel Lawyer that the money was given by the Food Inspector to the respondent when he purchased the milk from him and therefore, it should be held that the respondent has sold the milk to the Food Inspector and as he had sold the milk to the Food Inspector, the respondent will be held responsible for the sale of the milk and if it is found to be adulterated or sub-standard, the respondent will be liable for the same. But, I am not in a position to accept this submission of the learned Panel Lawyer, because if the respondent would have refused to give the sample, then it would also have been an offence under the Act and therefore he had to give the sample to the Food Inspector and took money from him for it. But that will not be sufficient to make the respondent vicariously liable for the sample which was found On analysis to be of sub-standard.
13. As I have stated above, to make the respondent liable, nothing has been shown to me so that I could hold that the respondent, prior to the sale, had any knowledge that the cans, which were sealed, had adulterated milk in them. Therefore, I am of the opinion that there is no force in the appeal and the order of acquittal recorded by the learned Additional Sessions Judge. Guna needs no interference by this Court.
14. The result, therefore, is that the appeal, having no force, is hereby dismissed. The bail bonds of the respondent shall stand discharged. The amount of fine, if deposited, be refunded to him.