Damodar Prasad Vs. the State of Rajasthan

Damodar Prasad vs The State of Rajasthan

Disposition Petition allowed Court Rajasthan Decided Feb 07, 2005

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Citation: sooperkanoon.com/750486
Court: Rajasthan High Court
Judge: Suresh Chandra Singhal, J.
Decided On: Feb 07, 2005
Case Number: S.B. Criminal Revision Petition No. 391 of 1994
Subject: Criminal;Food Adulteration
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either...

Key legal issue: Criminal;Food Adulteration
Outcome / disposition: Petition allowed
Acts & sections: Prevention of Food Adulteration Act, 1954 - Sections 2, 7, 16 and 19(2)

Parties & Advocates

Appellant / Petitioner

Damodar Prasad

Advocate P.P. Gandhi, Adv.

Respondent

The State of Rajasthan

Advocate R. Kuldeep, Public Prosecutor

Legal References

Acts: Prevention of Food Adulteration Act, 1954 - Sections 2, 7, 16 and 19(2)
Cases Referred: Ramanbhai Shivabhai Prajapati v. State of Gujrat and Anr.
Reported In: RLW2005(1)Raj470; 2005WLC(Raj)UC292

Excerpt

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person..........is adulterated as it does not confirm to the prescribed standard. the public analyst in its report has not specifically or clearly opined that the sample containing cloves is injurious to the health, the ratio of the above decision applies to the facts of the instant case. it is not the case of the prosecution that the accused petitioner has changed the shape of the purchased cloves (laungs) the specific defence of the accused petitioner in the trial court was that he had purchased the aforesaid cloves from m/s. satyanarain balmukund of delhi under the bill (ex. d1) dated 31.0.1981. he had sold the cloves in the original shape which had been purchased by him from the aforementioned firm. it has been contended by the learned counsel for the accused petitioner that both the courts below have wrongly rejected the plea of defence under section 19(2) of the act of 1954 and that the finding of the lower court as regards the liability of the accused is perversed.section 19(2) of the act, 1954 reads as under:-'a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if the proves :-(a) that he purchased the article of food-(i). in case where a licence is prescribed for the sale thereof, from a duty licensed manufacturer, distributor or dealer.(ii). in any other case, from any manufacturers, distributor or dealer, with a written warranty in the prescribed form.'7. since, the petitioner has produced the bill/cash memo ex.d1) of firm m/s. satya narain bal mukund of delhi, issued by the manufacturer dealer to the vendor, it is a legal and valid warranty which cannot be disbelieved. the gujrat high court in the case of ramanbhai shivabhai prajapati v. state of gujrat and anr., 1992 all india prevention of food adulteration journal, has held that if there is no written warranty in the prescribed from, the cash memo issued by the manufacturer or dealer to the vendor is held to be legal and valid.....

Full Judgment

Suresh Chandra Singhal, J.

1. This Criminal revision application has been directed by the accused petitioner against the judgment dated dated 24.10.1994 passed by the learned Addl. Sessions Judge. Sikar in Criminal Appeal No. 74/1993, 46/1992 confirming the judgment dated 02.11.1992 passed by the learned Chief Judicial Magistrate Sikar in Cr. Case No. 97/1982 by which he has convicted the accused petitioner for offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (Herein after referred to as the 'Act of 1954') and sentenced him to under 6 months rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, to suffer three months simple imprisonment.

2. To prove the case against the accused petitioner, the prosecution has relied on the evidence of the Food Inspector and the Public Analyst. The Public Analyst has opined in his report (Ex.P9) that the sample is adulterated as it does not confirm the prescribed standard. He has not mentioned that the sample sent to him is injurious to the health.

3. It has been submitted by the learned counsel for the petitioner that the sample is of cloves (Laungs) a primary food which is not injurious to health, therefore, the conviction cannot be recorded against the accused petitioner. In support of his submission, he has relied upon the judgment reported in the case of Rakesh Kumar v. State of U.P., 1984(3) Crime 681. He has also relied upon the judgment of the Gujrat High Court, rendered in the case of Kishore Kumar Venilal Patel v. Davaswarup Bhilalbhai Rao and Anr., 1991 (XI) All India Prevention of Food Adulteration Journal 540.

4. 'Primary Food' has been defined in Section 2 (XIIa) of the Act. 1954 as under-

'Primary Food' means any article of food being a produce of agriculture of horticulture in its, natural form:

Section 2(m) of the Act, runs as below:-

'If the quality or purity of the article falls below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability but which does not render if injurious to health:

5. Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this Sub-clause.'

6. In view of the above, clear and legal position the Cloves (Laung) is a primary food being a produce of agriculture or horticulture in its original from. The public analyst in its report (Ex.P.9) has opined that the sample does not contain extraneous matter and insect damaged matter. He has only found violatale oil (Volume/Weight) 8% and opined that the sample is adulterated as it does not confirm to the prescribed standard. The Public Analyst in its report has not specifically or clearly opined that the sample containing cloves is injurious to the health, the ratio of the above decision applies to the facts of the instant case. It is not the case of the prosecution that the accused petitioner has changed the shape of the purchased cloves (Laungs) The specific defence of the accused petitioner in the trial Court was that he had purchased the aforesaid cloves from M/s. Satyanarain Balmukund of Delhi under the Bill (Ex. D1) dated 31.0.1981. He had sold the cloves in the original shape which had been purchased by him from the aforementioned Firm. It has been contended by the learned counsel for the accused petitioner that both the Courts below have wrongly rejected the plea of defence under Section 19(2) of the Act of 1954 and that the finding of the lower Court as regards the liability of the accused is perversed.

Section 19(2) of the Act, 1954 reads as under:-

'A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if the proves :-

(a) that he purchased the article of food-

(i). in case where a licence is prescribed for the sale thereof, from a duty licensed manufacturer, distributor or dealer.

(ii). in any other case, from any manufacturers, distributor or dealer, with a written warranty in the prescribed form.'

7. Since, the petitioner has produced the Bill/Cash Memo Ex.D1) of Firm M/s. Satya Narain Bal Mukund of Delhi, issued by the manufacturer dealer to the vendor, it is a legal and valid warranty which cannot be disbelieved. The Gujrat High Court in the case of Ramanbhai Shivabhai Prajapati v. State of Gujrat and Anr., 1992 All India Prevention of Food Adulteration Journal, has held that if there is no written warranty in the prescribed from, the Cash Memo issued by the manufacturer or dealer to the vendor is held to be legal and valid warranty.

8. In view of the above discussions, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by he learned Chief Judl. Magistrate, Sikar and confirmed by the learned Addl. Sessions Judge Sikar, is hereby quashed and set-aside. The accused petitioner is acquitted of the offence to which he has been convicted and sentenced. If amount of fine has been paid, the same may be refunded back to the accused petitioner. The bail-bonds shall stand cancelled.

Same Court & Year Rajasthan · 2005 Same Parties Damodar Prasad vs The State of Rajasthan Same Subject Criminal;Food Adulteration Same Judge Suresh Chandra Singhal, J. Acts & Sections Prevention of Food Adulteration Act, 1954 - Sections 2, 7, 16...

Criminal;Food Adulteration