Bhanubhai V. Khunti Vs. P.S. Sharma and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/741715
SubjectFood Adulteration
CourtGujarat High Court
Decided OnSep-03-1992
Judge A.N. Divecha, J.
Reported in(1993)1GLR265
AppellantBhanubhai V. Khunti
RespondentP.S. Sharma and anr.
Cases ReferredDelhi Municipality v. Ram Kishan
Excerpt:
- - so far as the manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicaricusly liable for the offence;a.n. divecha, j.1. identical questions of law and fact arise in both these revisional applications directed against the judgment and order of conviction passed by the learned metropolitan magistrate of court no. 8 at ahmedabad as affirmed in appeal by the learned additional sessions judge of court no. 7 at ahmedabad. with the consent of the learned advocates for the parties appearing before me, i have thought it fit to hear both these revisional applications together and to dispose them of by this common judgment of mine.2. the facts giving rise to both these revisional applications are not many and not much in dispute. the petitioner herein was working at the relevant time as the quality control officer in one abad dairy in ahmedabad. on 26th may, 1981 the original complainant went to the abad dairy and he found that the packing and distribution of milk in milk pouches was being carried on. he found the petitioner present in the abad dairy at the relevant time. a person was summoned to act as a panch witness. in his presence the petitioner herein was asked about the price of milk. the original complainant purchased from the petitioner herein some two milk bottles of 500 milligrams each as a sample for the purpose of the prevention of food adulteration act, 1954 ('the act' for convenience). after dividing the sample into three parts, each part of the sample was packed and sealed in a bottle. one sample bottle was sent to the public analyst for his analysis and report. the report of its analysis indicated that it did not conform to the standard of milk prescribed by the rules framed under the act. thereupon the original complainant after obtaining the necessary sanction from the sanctioning authority gave his complaint of the incident to the metropolitan magistrate of court no. 8 at ahmedabad charging the present petitioner and the managing director of the abad dairy with the offence punishable under section 16(l-a)(i) read with section 7 of the act. it came to be registered as summary case no. 48 of 1981. neither accused pleaded guilty to the charge. thereupon they were tried. after recording the prosecution evidence, the further statement of each accused was recorded. the present petitioner as accused no. 2 examined himself at trial in defence. one more defence witness was also examined at trial. some documentary evidence was also brought on record on behalf of the defence at trial. after hearing arguments, by his judgment and order passed on 18th march 1985 in summary case no. 48 of 1981, the learned metropolitan magistrate of court no. 8 at ahmedabad acquitted accused no. 1 of the charge levelled against him but convicted accused no. 2 (the petitioner herein) of the offence with which he was charged and sentenced' to simple imprisonment for six months and fine of rupees one thousand in default of which simple imprisonment for one month more.3. it appears that the original complainant as the food inspector purchased sample of milk from the petitioner herein on 16th june, 1981. that sample was also found to be not conforming to the standard of milk prescribed by the rules under the act on its analysis by the public analyst.thereupon, after obtaining the necessary sanction from the sanctioning authority, the complainant gave his complaint of the incident to the metropolitan magistrate of court no. 8 at ahmedabad. it came to be registered as summary case no. 85 of 1981. therein also 1 he present petitioner along with the managing director of the abad dairy were shown as the accused and were charged with the same offence punishable under section 16(1-a)(i) read with section 7 of the act. in that case also neither accused pleaded guilty to the charge. they were thereupon tried. after recording the prosecution evidence, the further statement of each accused was recorded. the present petitioner as the accused examined himself in defence at trial. one more witness was examined at trial in defence. certain documentary evidence was also brought on record by and on behalf of the defence at trial. after hearing arguments, by his judgment and order passed on 18th march, 1985 in summary case no. 85 of 1981, the learned metropolitan magistrate of court no. 8 at ahmedabad again acquitted accused no. 1 of the offence with which he was charged but convicted the present petitioner of the offence punishable under section 16(1-a)(i) read with section 7 of the act and sentenced him to' simple imprisonment for six months and fine of rupees one thousand in default of which simple imprisonment for one month more. the present petitioner carried both the matters in appeal before the city sessions court at ahmedabad. his appeals came to be registered as criminal appeals nos. 79 and 80 of 1985. it appears that both these appeals were assigned to the learned additional session? judge of court no. 7 at ahmedabad for hearing and disposal. by his separate judgment and order passed on 30th april, 1986 in each appeal, the learned additional sessions judge of court no. 7 at ahmedabad dismissed both the appeals. aggrieved thereby, the petitioner has invoked the revisional jurisdiction of this court for questioning the correctness of the judgment and order of conviction passed against him.4. shri patel for the petitioner has urged several submissions in support of both these revisional applications. one which has appealed to me the most is that the petitioner in each case has been convicted of the offence for which there was no charge and no evidence.5. it may be mentioned that the charge against the accused was for the offence punishable under section 16(l-a)(i) of the act, in order to fasten the penal liability thereunder, the person charged should be found to be either himself or through any other person manufacturing for sale the article of food in question which is found adulterated within the meaning of the act. the petitioner in the present case was charged with the offence punishable thereunder. the charge was that he was himself or through some one manufacturing the milk which was found to be adulterated. it is thus clear that he was sought to be made vicariously liable for the milk produced by the abad dairy.6. a person can be made vicariously liable under section 17 of the act. the abad dairy is a unit of the gujarat dairy development corporation ltd. ('the corporation' for convenience). accused no. 1 was impleaded in the case ,in his capacity as the managing director of the corporation at the relevant time. the present petitioner was also impleaded as the accused as he was the quality control officer in; the abad dairy at the relevant lime. the acquittal of the managing. director at trial is not under challenge before me. it is not necessary for me to dilate upon his involvement in this case. the petitioner can be held, liable either under section 17(1)(a)(ii) or under section 17(4) of the act. in order to fasten the penal liability under section 17(1)(a)(h) of the act, the prosecution has to prove that the present petitioner was in charge of the conduct of the business of the company, that is the abad dairy units'-off the corporation. there is no iota of evidence on record to show or to suggest that the petitioner was in any way responsible for the conduct of the business of the abad dairy. he was connected with that unit of the corporation only for the purpose of quality control of its production. he was not connected in its business affairs. he cannot therefore be held liable under section 17(1)(a)(ii) of the act.:7. the question is whether he can be made liable under section 17(4) of the act. in order to bring the guilt home to the person thereunder, it has inter alia to be proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of that person in his capacity as a director, a manager, a secretary or any other officer of the company. the present petitioner was certainly an officer of the abad dairy unit run by the corporation. the charge against him was not that he in any manner consented or connived at the offence in question. the complaint does not show that the commission of the offence was attributable, to any neglect on the part of the present petitioner. it is thus clear that he was not charged with the offence punishable under section 17(4) of the act. in any case the complaint does not disclose the ingredients thereof. shri patel is right in his submission that the present petitioner was subjected to conviction thereunder without there being any charge against him. again, the record of the case would show that there was no iota of evidence against the present petitioner with respect to the offence punishable under section 17(4) of the act.8. in this connection a reference deserves to be made to the ruling of the supreme court in the case of delhi municipality v. ram kishan reported in : 1983crilj159 . in that case a complaint was lodged against several person's for sale of some adulterated article of food. that article of food was said to have been manufactured by one firm wherein one accused was the manager and the others were its directors. the complaint in that case did not show that the directors were in charge of the conduct of the business of that firm. the manager alone was prima facie found to be in charge of the conduct of its business. in a proceeding for quashing the prosecution against the directors, the supreme court has held:so far as the manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicaricusly liable for the offence; vicarious liability being an incident of an offence under the act. so far as the directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the directors from which a reasonable inference can be drawn that they could also be vicariously liable. in these circumstances, therefore, we find cur selves in complete agreement with the argument of the high court that no case against the directors has been made out ex facte on the allegations made in the complaint and the proceedings against them were rightly quashed.9. in the instant case the complaint ex facie does not show the ingredients of section 17(1)(a)(ii) or section 17(4) of the act for the purpose of fastening the vicarious penal liability on the petitioner herein. the prosecution against the petitioner might have been quashed if a move was made in that regard on the basis of the averments made in the complaint. if the prosecution could have been quashed on the basis of these averments made in the complaint, his conviction thereon ' cannot be sustained in law more particularly when there is no join of evidence against the present petitioner for the purpose of fastening the penal vicarious liability to him.10. shri soparkar for respondent no. 1 and kum. valikaiimvala for respondent no. 2-state have tried to support the conviction of the accused on the ground that the prtitionli' was found guilty of selling the adulterated article of food to the original complainant. i think this submission has to be stated only to be rejected for the simple reason that no charge for such offence was levelled against the petitioner. as transpiring from the tenor of the complaint the charge against the petitioner was under section 16(1-a)(i) of the act. it is up admitted position on record that the petitioner was not the producer of the milk in question. the producer was certainly the abad dairy mil by the corporation. the petitioner could therefore be made only vicariously liable for the production of the so-called adulterated milk by the' abad dairy.in view of my aforesaid discussion. i am of the opinion that the conviction of the accused cannot be upheld in law. the impugned judgment and order passed by the learned trial magistrate convicting the present petitioner of the offence with which he was charged as affirmed in appeal by the appellate, court in each case deserves to be quashed and set aside.11. in the result, both these revisional applications are accepted. the judgments and orders passed by the learned metropolitan magistrate of court no. 8 at ahmedabad in summary cases nos. 48 of 1981 and 85 of 1981 as affirmed in appeal by the judgments and orders passed by. the learned additional sessions judge of court no. 7 at ahmedabad in criminal appeals nos. 79 and 80 of 1985 arc quashed and set aside. rule accordingly is made absolute in each petition. the bail bonds furnished by the petitioner are ordered to be cancelled.
Judgment:

A.N. Divecha, J.

1. Identical questions of law and fact arise in both these revisional applications directed against the judgment and order of conviction passed by the learned Metropolitan Magistrate of Court No. 8 at Ahmedabad as affirmed in appeal by the learned Additional Sessions Judge of Court No. 7 at Ahmedabad. With the consent of the learned Advocates for the parties appearing before me, I have thought it fit to hear both these revisional applications together and to dispose them of by this common judgment of mine.

2. The facts giving rise to both these revisional applications are not many and not much in dispute. The petitioner herein was working at the relevant time as the Quality Control Officer in one Abad Dairy in Ahmedabad. On 26th May, 1981 the original complainant went to the Abad Dairy and he found that the packing and distribution of milk in milk pouches was being carried on. He found the petitioner present in the Abad Dairy at the relevant time. A person was summoned to act as a panch witness. In his presence the petitioner herein was asked about the price of milk. The original complainant purchased from the petitioner herein some two milk bottles of 500 milligrams each as a sample for the purpose of the Prevention of Food Adulteration Act, 1954 ('the Act' for convenience). After dividing the sample into three parts, each part of the sample was packed and sealed in a bottle. One sample bottle was sent to the Public Analyst for his analysis and report. The report of its analysis indicated that it did not conform to the standard of milk prescribed by the Rules framed under the Act. Thereupon the original complainant after obtaining the necessary sanction from the sanctioning authority gave his complaint of the incident to the Metropolitan Magistrate of Court No. 8 at Ahmedabad charging the present petitioner and the Managing Director of the Abad Dairy with the offence punishable under Section 16(l-A)(i) read with Section 7 of the Act. It came to be registered as Summary Case No. 48 of 1981. Neither accused pleaded guilty to the charge. Thereupon they were tried. After recording the prosecution evidence, the further statement of each accused was recorded. The present petitioner as accused No. 2 examined himself at trial in defence. One more defence witness was also examined at trial. Some documentary evidence was also brought on record on behalf of the defence at trial. After hearing arguments, by his judgment and order passed on 18th March 1985 in Summary Case No. 48 of 1981, the learned Metropolitan Magistrate of Court No. 8 at Ahmedabad acquitted accused No. 1 of the charge levelled against him but convicted accused No. 2 (the petitioner herein) of the offence with which he was charged and sentenced' to simple imprisonment for six months and fine of rupees one thousand in default of which simple imprisonment for one month more.

3. It appears that the original complainant as the Food Inspector purchased sample of milk from the petitioner herein on 16th June, 1981. That sample was also found to be not conforming to the standard of milk prescribed by the Rules under the Act on its analysis by the Public Analyst.

Thereupon, after obtaining the necessary sanction from the sanctioning authority, the complainant gave his complaint of the incident to the Metropolitan Magistrate of Court No. 8 at Ahmedabad. It came to be registered as Summary Case No. 85 of 1981. Therein also 1 he present petitioner along with the Managing Director of the Abad Dairy were shown as the accused and were charged with the same offence punishable under Section 16(1-A)(i) read with Section 7 of the Act. In that case also neither accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence, the further statement of each accused was recorded. The present petitioner as the accused examined himself in defence at trial. One more witness was examined at trial in defence. Certain documentary evidence was also brought on record by and on behalf of the defence at trial. After hearing arguments, by his judgment and order passed on 18th March, 1985 in Summary Case No. 85 of 1981, the learned Metropolitan Magistrate of Court No. 8 at Ahmedabad again acquitted accused No. 1 of the offence with which he was charged but convicted the present petitioner of the offence punishable under Section 16(1-A)(i) read with Section 7 of the Act and sentenced him to' simple imprisonment for six months and fine of rupees one thousand in default of which simple imprisonment for one month more. The present petitioner carried both the matters in appeal before the City Sessions Court at Ahmedabad. His appeals came to be registered as Criminal Appeals Nos. 79 and 80 of 1985. It appears that both these appeals were assigned to the learned Additional Session? Judge of Court No. 7 at Ahmedabad for hearing and disposal. By his separate judgment and order passed on 30th April, 1986 in each appeal, the learned Additional Sessions Judge of Court No. 7 at Ahmedabad dismissed both the appeals. Aggrieved thereby, the petitioner has invoked the revisional jurisdiction of this Court for questioning the correctness of the judgment and order of conviction passed against him.

4. Shri Patel for the petitioner has urged several submissions in support of both these revisional applications. One which has appealed to me the most is that the petitioner in each case has been convicted of the offence for which there was no charge and no evidence.

5. It may be mentioned that the charge against the accused was for the offence punishable under Section 16(l-A)(i) of the Act, In order to fasten the penal liability thereunder, the person charged should be found to be either himself or through any other person manufacturing for sale the article of food in question which is found adulterated within the meaning of the Act. The petitioner in the present case was charged with the offence punishable thereunder. The charge was that he was himself or through some one manufacturing the milk which was found to be adulterated. It is thus clear that he was sought to be made vicariously liable for the milk produced by the Abad Dairy.

6. A person can be made vicariously liable under Section 17 of the Act. The Abad Dairy is a unit of the Gujarat Dairy Development Corporation Ltd. ('the Corporation' for convenience). Accused No. 1 was impleaded in the case ,in his capacity as the Managing Director of the Corporation at the relevant time. The present petitioner was also impleaded as the accused as he was the Quality Control Officer in; the Abad Dairy at the relevant lime. The acquittal of the Managing. Director at trial is not under challenge before me. It is not necessary for me to dilate upon his involvement in this case. The petitioner can be held, liable either under Section 17(1)(a)(ii) or under Section 17(4) of the Act. In order to fasten the penal liability under Section 17(1)(a)(h) of the Act, the prosecution has to prove that the present petitioner was in charge of the conduct of the business of the company, that is the Abad Dairy Units'-off the Corporation. There is no iota of evidence on record to show or to suggest that the petitioner was in any way responsible for the conduct of the business of the Abad Dairy. He was connected with that unit of the Corporation only for the purpose of quality control of its production. He was not connected in its business affairs. He cannot therefore be held liable under Section 17(1)(a)(ii) of the Act.:

7. The question is whether he can be made liable under Section 17(4) of the Act. In order to bring the guilt home to the person thereunder, it has inter alia to be proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of that person in his capacity as a director, a manager, a secretary or any other officer of the company. The present petitioner was certainly an officer of the Abad Dairy Unit run by the Corporation. The charge against him was not that he in any manner consented or connived at the offence in question. The complaint does not show that the commission of the offence was attributable, to any neglect on the part of the present petitioner. It is thus clear that he was not charged with the offence punishable under Section 17(4) of the Act. In any case the complaint does not disclose the ingredients thereof. Shri Patel is right in his submission that the present petitioner was subjected to conviction thereunder without there being any charge against him. Again, the record of the case would show that there was no iota of evidence against the present petitioner with respect to the offence punishable under Section 17(4) of the Act.

8. In this connection a reference deserves to be made to the ruling of the Supreme Court in the case of Delhi Municipality v. Ram Kishan reported in : 1983CriLJ159 . In that case a complaint was lodged against several person's for sale of some adulterated article of food. That article Of food was said to have been manufactured by one firm wherein one accused was the Manager and the others were its Directors. The complaint in that case did not show that the Directors were in charge of the conduct of the business of that firm. The Manager alone was prima facie found to be in charge of the conduct of its business. In a proceeding for quashing the prosecution against the Directors, the Supreme Court has held:

So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicaricusly liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find cur selves in complete agreement with the argument of the high Court that no case against the Directors has been made out ex facte on the allegations made in the complaint and the proceedings against them were rightly quashed.

9. In the instant case the complaint ex facie does not show the ingredients of Section 17(1)(a)(ii) or Section 17(4) of the Act for the purpose of fastening the vicarious penal liability on the petitioner herein. The prosecution against the petitioner might have been quashed if a move was made in that regard on the basis of the averments made in the complaint. If the prosecution could have been quashed on the basis of these averments made in the complaint, his conviction thereon ' cannot be sustained in law more particularly when there is no join of evidence against the present petitioner for the purpose of fastening the penal vicarious liability to him.

10. Shri Soparkar for respondent No. 1 and Kum. Valikaiimvala for respondent No. 2-State have tried to support the conviction of the accused on the ground that the prtitionLi' was found guilty of selling the adulterated article of food to the original complainant. I think this submission has to be stated only to be rejected for the simple reason that no charge for such offence was levelled against the petitioner. As transpiring from the tenor of the complaint the charge against the petitioner was under Section 16(1-A)(i) of the Act. It is up admitted position on record that the petitioner was not the producer of the milk in question. The producer was certainly the Abad Dairy mil by the Corporation. The petitioner could therefore be made only vicariously liable for the production of the so-called adulterated milk by the' Abad Dairy.

In view of my aforesaid discussion. I am of the opinion that the conviction of the accused cannot be upheld in law. The impugned judgment and order passed by the learned trial Magistrate convicting the present petitioner of the offence with which he was charged as affirmed in appeal by the Appellate, Court in each case deserves to be quashed and set aside.

11. In the result, both these revisional applications are accepted. The judgments and orders passed by the learned Metropolitan Magistrate of Court No. 8 at Ahmedabad in Summary Cases Nos. 48 of 1981 and 85 of 1981 as affirmed in appeal by the judgments and orders passed by. the learned Additional Sessions Judge of Court No. 7 at Ahmedabad in Criminal Appeals Nos. 79 and 80 of 1985 arc quashed and set aside. Rule accordingly is made absolute in each petition. The bail bonds furnished by the petitioner are ordered to be cancelled.