State of Maharashtra v. Dattatraya Mathur Kothari — 1976 DIGILAW 96 (BOM)

ORDER:- This application in revision has been filed by the State for enhancement of sentence. Respondents Nos. 1 and 2 (original accused) were convicted by the Judicial Magistrate, First Class, Khed, on 2nd February, 1974 in Criminal Case No. 96 of 1973 for offences punishable under Cls.(i) and (v) of S.7 read with S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, herein after referred to as "the Act", and were each sentenced to suffer sentence till the rising of the Court and to pay a fine of Rs. 100/-, in default, to suffer rigorous imprisonment for two months. This being an application under Section 439 of the Code of Criminal Procedure, 1898, where a notice has been issued to the accused to show cause why their sentence should not be enhanced, under Sub-Section (6) of Section 439 of that Code they are entitled also to challenge their conviction. Mr. Ganatra, appearing for the respondents-accused, has in fact, challenged the conviction of the accused. 2. Briefly stated, the facts leading to the prosecution of the accused are these. The two accused Dattatraya Mathur Kothari and Ram Mathur Kothari who are brothers, are also partners of a Kirana Shop at Khed. On 26th March 1973, Food Inspector Mugdam (P.W. 1) along with another Food Inspector Nakhava and one panch Chandrakant Talathi (P.W. 2) visited the shop of the accused at 2.15 p.m. Only accused No. 1 Dattatraya was present and accused No. 2 Ram was not present in the shop. Mugdam had suspicion that the cotton seed oil kept in the shop for sale was adulterated and he had gone to the shop to take a sample of that oil for analysis. After disclosing his identity and making known to Dattatraya the purpose of his visit, Mugdam asked Dattatraya to sell him 375 gms. of cotton seed oil kept for sale in the shop. Dattatraya accordingly sold the said quantity of cotton seed oil and received Rs. 2.54 as the price. Mugdam divided the sample in three equal parts and kept them in three bottles which he sealed. He gave one sealed bottle to Dattatraya and out of the two remaining bottles, he sent one to the Public Analyst for analysis. In due course, the report of the Public Analyst was received to the effect that the sample was adulterated. The accused came to be prosecuted thereafter. 3. He gave one sealed bottle to Dattatraya and out of the two remaining bottles, he sent one to the Public Analyst for analysis. In due course, the report of the Public Analyst was received to the effect that the sample was adulterated. The accused came to be prosecuted thereafter. 3. The defence of accused No. 1 Dattatraya was that cotton seed oil kept in the shop was not for human consumption and it was to be sold for use in Samai (lamp). He had accordingly told the Food Inspector and had sold it to him making it known to him that the cotton seed oil was not for human consumption. He also raised a defence under Section 19(2) of the Act, but he was not able to prove it and nothing more need be said about it as Mr. Ganatra has not addressed me on the defence. So far as accused No. 2 Ram is concerned, his defence was that he was not present and he had no knowledge about the cotton seed oil being sold and about the Food Inspector taking a sample thereof from the shop. 4. The learned trial Magistrate overruled the defence of both the accused, accepted the prosecution case and convicted and sentenced both the accused as stated above. On the question of sentence, he made the following observations :- "No antecedents are produced against both the accused. It appears to be the first offence. Moreover, both the accused prayed to the Court alternatively that if Court comes to the conclusion that they committed the offence, the lenient view to be taken and mercy be shown to them. From this it clearly appears that accused are repenting and hence in my opinion, lenient view will meet the ends of justice and also serve as a check in future, hence lenient view is taken ......" 5. The submission of Mr. Barday, the learned Public Prosecutor, on behalf of the State is that a minimum sentence of imprisonment for six months and a fine of Rs. 1,000/- has been provided for an offence under Section 16(1)(a)(i) of the Act. It is true that under the proviso to Section 16(1), the Court has a discretion to pass a sentence less than the minimum prescribed, for any adequate and special reasons to be mentioned in the judgement. 1,000/- has been provided for an offence under Section 16(1)(a)(i) of the Act. It is true that under the proviso to Section 16(1), the Court has a discretion to pass a sentence less than the minimum prescribed, for any adequate and special reasons to be mentioned in the judgement. But that is if the offence is of the kind mentioned in clause (i) or clause (ii) of the proviso. But the offence in this case is not of the kind mentioned in clause (i) or clause (ii) of the proviso and the learned trial Magistrate had no jurisdiction to pass a sentence less than the minimum and there was no question of his considering whether any adequate or special reason were there for passing a sentence less than the minimum prescribed. As against this, Mr. Ganatra has challenged the order of conviction recorded against the accused. In the alternative, he has submitted that the present application in revision is barred by limitation. 6. The first question that falls for consideration, therefore, is whether the conviction of the two accused is correct. The order of conviction has been challenged by Mr. Ganatra on several grounds. The first ground is that although the sample obtained by the Food Inspector from the shop of the accused on 26th March, 1973 was adulterated according to the standard then prescribed, there has been since an amendment in that standard and under the amended standard, the sample could not be regarded as adulterated. The accused cannot, therefore, be convicted for having sold an adulterated article of food. 7. In order to appreciate the argument of Mr. Ganatra, a few facts have to be stated. The Public Analyst found the sample of cotton seed oil adulterated mainly under Section 2(i)(a) of the Act. Under this provision, an article of food is deemed to be adulterated, if, inter alia, it is not of the quality which it purports to be Appendix B to the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as "the Rules", lays down the definition and standards of quality of various articles of food. Item A.17.02 of this Appendix lays down the standards of quality for cotton seed oil. One of the standards prescribed under this item which is in clause (a) is that butyro-refractometer reading at 40°C should be 57.9 to 60.2. Item A.17.02 of this Appendix lays down the standards of quality for cotton seed oil. One of the standards prescribed under this item which is in clause (a) is that butyro-refractometer reading at 40°C should be 57.9 to 60.2. According to the report of the Public Analyst, this reading was 57.0. In other words, on the lower side, the standard had failed by 0.9. In regard to other standards prescribed by the Item, the Public Analyst did not find any defect. 8. By a Notification dated 5th February, 1976 of the Ministry of Health and Family Planning (Department of Health), the Rules were amended and the amendments were to come into force from the date of the Notification, except in respect of some Rules and Clauses with which we are not concerned here. By Rule 10, Clause (5), Item A.17.02 in Appendix B of the Rules was amended and against the entry in Clause (a), for the figures "57.9 to 60.2" the figures "55.6 to 60.2" were substituted. In other words, from the date of the Notification, that is, 5th February, 1976, if the butyro-refractometer reading at 40°C was between 55.6 and 60.2, cotton seed oil could be said to conform to the prescribed standard. As already noted, in the instant case, the butyro-refractometer reading at 40°C at its minimum was found to be 57.0 which, according to the amended standard, would be within the permissible limit of conformity of the article to the prescribed standard. The sample in this case was taken on 26th March, 1973. According to the then prescribed standard, it was found to be adulterated and on that ground the accused were convicted by the learned trial Magistrate on 2nd February, 1974. During the pendency of the present revision application, in which the accused are entitled to challenge their conviction, the point canvassed by Mr. Ganatra is that the amendment in the prescribed standard introduced by the Notification dated 5th February, 1976 will apply retrospectively and on the ground that the cotton seed oil cannot now be adulterated on the basis of the standard prescribed, the accused are entitled to be acquitted. 9. Mr. Ganatra has referred to Article 20(1) of the Constitution, which is as follows :- "20. 9. Mr. Ganatra has referred to Article 20(1) of the Constitution, which is as follows :- "20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." This means that any act which was innocent at any particular point of time could not be declared unlawful at a subsequent time and on the basis that the act has now become unlawful, the person responsible for the act when he committed it and when it was lawful could not be punished for it. Again, when the penalty prescribed for the act which was unlawful was less, subsequently, when the penalty is raised, this raised penalty could not be inflicted on the person committing the unlawful act. According to Mr. Ganatra, the prohibition contained in Article 20(1) is against creating or aggravating the crime or increasing the punishment. But there is no prohibition under the Article to do something which will mollify the rigour of the criminal law. In other words, making an unlawful act lawful does not come within the prohibition of Article 20(1). He has relied upon the following quotation from a decision of the Supreme Court of United States in Calder v. Bull, (1798) 1 Law Ed 648 at page 650 :- "Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; . . . . But I do not consider any law expost facto, within the prohibition, that mollified the rigour of the criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction . . ... ... There is a great and apparel difference between making an UNLAWFUL act LAWFUL; and the making a innocent action criminal, and punishing" as a CRIME." Mr. . ... ... There is a great and apparel difference between making an UNLAWFUL act LAWFUL; and the making a innocent action criminal, and punishing" as a CRIME." Mr. Ganatra relies upon this decision to contend that though substantive law cannot be amended to give a retrospective effect where the new law creates crime or aggravates crime, increases punishment for the crime, or changes rules of evidence for the purpose of conviction there can be cases in which a law may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to its commencement. One of such cases, according to Mr. Ganatra, is when an unlawful act is made lawful. In other words, if an act was unlawful when a person had committed it and he is prosecuted for that act, if, before the final judgement in the case is passed, the law is amended to make the act lawful, the effect of the amendment can be given to the person so as to be operative on the date he had done the act. Mr. Ganatra has relied upon the decision in Tiwari Kanhaiyalal v. Commr. of Income-tax, Delhi, AIR 1975 SC 902 : (1975 Cri LJ 781) to show that the above principle has also been accepted by the Supreme Court of our own country. 10. The decision of the Supreme Court in Tiwari Kanhaiyalal's case, (1975 Cri LJ 781) (SC) however, is of no assistance to Mr. Ganatra in the view he is propounding. The question before the Supreme Court was whether a post facto legislation which is barred under Article 20(1) of the Constitution was being pressed into service against the appellant. In that context, the Supreme Court referred to its earlier decision in which the decision of the Supreme Court of U.S.A. in Calder v. Bull, (1798-1 L Ed 648) was referred to. That was merely to point out that ex post facto laws, which retrospectively create offences and punish them, are bad as being highly inequitable and unjust. In that context, the Supreme Court further referred to Article 20(1) which prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. When the offending act was committed, the 1922 Income-tax Act was in force. In that context, the Supreme Court further referred to Article 20(1) which prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. When the offending act was committed, the 1922 Income-tax Act was in force. Under the 1961 Act, the punishment provided for the act was greater than that provided in the 1922 Act." The Supreme Court held that the appellant was entitled to press into service" the second part of Clause (1) of Article 20 of the Constitution. No question arose in that case for considering the effect of a case where the unlawful act had subsequently become lawful. 11. Mr. Ganatra has next relied upon the decision of the Allahabad High Court in Shyam Lal v. State, AIR 1968 All 392 : (1968 Cri LJ 1461) which was also a case under the Act. Shyam Lal had a tea stall and he used to store milk for the purpose of making tea which he served to his customers. The Food Inspector purchased a sample of milk from him which was found to be adulterated by the Public Analyst. The offence charged was committed on 28th September 1964. Shyam Lal was convicted and sentenced on 4th August 1965 to one year's rigorous imprisonment and a fine of Rs. 2,000/-, in default, to undergo further rigorous imprisonment for six months. After the date on which the offence was committed but before the date on which Shyam Lal was convicted, Section 16(1) of the Act was amended, which amendment came into force on 1st March, 1965. The offence alleged to have been committed by Shyam Lal was a second offence which rendered him liable to imprisonment for a term extending to two years and with fine but which punishment could not be less than one year together with fine of not less than Rupees 2,000/- as was provided in Section 16(i)(ii) of the unamended Act. The Amending Act abolished the distinction between the first, second or third offence in the matter of punishment. The Amending Act also gave a wide discretion to the Court to impose a sentence of imprisonment for a term less than six months or a fine of less than Rs. The Amending Act abolished the distinction between the first, second or third offence in the matter of punishment. The Amending Act also gave a wide discretion to the Court to impose a sentence of imprisonment for a term less than six months or a fine of less than Rs. 1,000/- if the Court for adequate and special reasons considered it proper to do so where an offence fell under a particular category. The trial Magistrate had passed the sentence in accordance with the provisions of the Act as it stood before the amendment, though on 4th August 1965, when he passed the sentence, the provision for passing a particular sentence for a second offence was no longer there. When the question of the legality of the sentence passed by the trial Magistrate came up for consideration before the High Court, it observed as follows :- "It seems to us clear that the true rule of construction of a penal statute is that where the legislature evidences its intention to modify the law, in favour of the accused, so as to reduce the rigour of the law in the light of past experience and changed social conditions, so long as prosecution of the accused has not concluded by a judgement of conviction, the proceedings against him are regarded as inchoate and the law applicable to him would be the law as amended by the legislature. The Court trying an accused person has to take into consideration the law as it exists on the date of the judgement. It seems reasonable that an accused person cannot render himself liable to a higher punishment under a statute which has ceased to exist and has been substituted by a new law which favours him. Where the question as to the interpretation of a penal statute is concerned, the Court must construe its provisions beneficially in regard to their applicability to the accused. It would be violating the spirit of the law and the will of the Legislature as expressed in the amending statute to sentence an accused person on the basis of the original Act which has been considered by the Legislature to be harmful and harsh against public interest." 12. These observations must be read in the context in which they were made. These observations must be read in the context in which they were made. The only question before the High Court was whether the benefit of the lenient provision in the matter of sentence should be made available to the accused before the final judgement in the case was passed, which benefit had become available to him as a result of the legislative amendment in the intervening period. The question arising in the present case is whether the act of the accused, which was an offence on the date on which it was committed, should be treated as being no offence because, in the meanwhile, the law has been changed and now if a similar act is committed, it would not be an offence. Whether an act is an offence is to be determined on the basis of the law as it existed on the date of the commission of the act and subsequent change in law can have no effect on that question. In Shyam Lal's case (1968 Cri LJ 1461) (All) itself it was observed that the repeal of a statute has the effect of saving all transactions past and closed, and whether a right has been created or liability incurred under the original statute, its repeal cannot affect a vested right accrued or liability incurred thereunder. The above observations instead of supporting the view being propounded by Mr. Ganatra rather go against him. 13. Mr. Ganatra, however, has placed his strongest reliance on two decisions of the Delhi High Court in Sunder Lal v. M. C. D., 1971 Cri LJ 154 and Municipal Corporation of Delhi v. Mai Ram alias Bhava Ram, 1974 FAC 19. The second decision is a brief one. The trial Court in that case had given its judgement on a preliminary point which view was reversed by the High Court. The question before the High Court then was whether the case should be remanded to the trial Court for fresh trial. The Division Bench followed the earlier decision in Sunder Lal's case and observed that no purpose would be served in ordering a fresh trial of the accused. No detailed or independent reasoning appears in that report. It will, therefore, be sufficient if I discuss only the first decision of the Delhi High Court cited by Mr. Ganatra. 14. The Division Bench followed the earlier decision in Sunder Lal's case and observed that no purpose would be served in ordering a fresh trial of the accused. No detailed or independent reasoning appears in that report. It will, therefore, be sufficient if I discuss only the first decision of the Delhi High Court cited by Mr. Ganatra. 14. It is true that the decision of the Delhi High Court in Sunder Lal's case (1971 Cri LJ 154) (Delhi) does support the view being propounded by Mr. Ganatra and the case is also very much similar on facts. In that case, a sample of compounded Hing was taken from the shop of Sunder Lal by the Food Inspector on 19th December, 1962. According to the law, as it stood then, the presence of sand in compounded Hing was totally prohibited and no ash insoluble in Hydrochloric Acid was allowed. The Public Analyst found that the sample of compounded Hing was adulterated due to extraneous matter of sand to the extent of 1.05 per cent being present. On 9th March, 1966, when the matter was pending in the High Court, the standard of compounded Hing was changed by a Notification. According to the new standard, ash insoluble in dilute Hydrochloric Acid could be present upto 1.5 per cent. As already noted, ash insoluble in Hydrochloric Acid (sand) found by the Public Analyst was 1.05 per cent. It was clear that if the new standard was applicable to the case, the petitioners were entitled to acquittal on the ground that the sample did not fall below the standard. The High Court concluded that the Notification dated 9th March 1966, which substituted a new standard in place of the old must be given a retrospective operation and if it is so given, the sample conformed to the present standard and it could not be said to be adulterated. The High Court concluded that the Notification dated 9th March 1966, which substituted a new standard in place of the old must be given a retrospective operation and if it is so given, the sample conformed to the present standard and it could not be said to be adulterated. For this conclusion, the judgement does not contain, and I say so with the utmost respect to the learned Judges for the Division Bench, any independent reasoning, except that the new standard having taken away the rigour of law and being in favour of the accused it should be given a retrospective operation, and draws heavily upon the reasoning of the two decisions, one of Allahabad High Court in Shyam Lal's case (1968 Cri LJ 1461) (All) (supra) and another in Rattan Lal v. State of Punjab, AIR 1965 SC 444 : (1965-1 Cri LJ 360). 15. As already noted, in Shyam Lal's case (1968 Cri LJ 1461) (All) the question was only of awarding a punishment under the law which had come into force before the proceedings had finally ended. On the other hand a clear view was expressed in that case that where liability was incurred under the original statute, its repeal could not affect that liability. In Rattan Lal's case, (1965-1 Cri LJ 360) (SC) before the Supreme Court, the facts were these. The appellant, who was a resident of Palwal in Gurgaon Dist., was convicted on 31st May, 1962 under Sections 451 and 354 of the Indian Penal Code and sentenced to six months' rigorous imprisonment under each count and was also sentenced to pay a fine of Rupees 200/- for the offence under Section 451. The appellant was 16 years old at the time of his conviction. The question was of applying the Probation of Offenders Act, 1958 to the cease. That Act was extended to Gurgaon District on 1st September, 1962. Thus, at the time the appellant was convicted by the Magistrate, he had no power to make any order under the Probation of Offenders Act. When the case reached the High Court, a prayer was made that it should exercise its jurisdiction under Section 11 of the Probation of Offenders Act and should pass orders under Sections 3, 4 or 6 of the Probation of Offenders Act. That application was dismissed. When the case reached the High Court, a prayer was made that it should exercise its jurisdiction under Section 11 of the Probation of Offenders Act and should pass orders under Sections 3, 4 or 6 of the Probation of Offenders Act. That application was dismissed. The argument before the Supreme Court was that since the trial Court could not have made any order under Section 6 of the Probation of Offenders Act, as, at the time it made the order, the Probation of Offenders Act had not been extended to Gurgaon District, the High Court could also not exercise that power acting under Section 11 of the Act. It was submitted before the Supreme Court that the Probation of Offenders Act should not be given a retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Probation of Offenders Act came into operation. The Supreme Court observed in that behalf as follows : "This is not a case where an act, which was not an offence before the Act, is made an offence under the Act, nor this is a case where under the Act a punishment higher than that obtaining for an offence before the Act is imposed. This is an instance where neither the ingredients of the offences nor the limits of the sentence are disturbed, but a provision is made to help the reformation of an accused through the agency of the Court. Even so the statute affects an offence committed before it was extended to the area in question. It is, therefore, a post facto law and has retrospective operation. In considering the scope of such a provision, we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion without doing violence to the provisions of the relevant section." The rule of beneficial construction referred to by the Supreme Court, in my view, could be pressed into service only where the question of imposing penalty arose and it could not be extended to holding that the new standard having taken away the rigours of law and being in favour of the accused, it should be given a retrospective operation. 16. 16. In my view, whether an act is an offence has to be determined on the basis of the law as it extended on the date of the commission of the offence. If there is a subsequent change in the law, which would make the act if committed now innocent, that can have no effect on the offence which had already been committed. It may even be a technical offence now, but, all the same, it is an offence. The fact that on account of the change in the law the act is no longer an offence may be a mitigating circumstance to be taken into account in awarding a sentence. That is all I am prepared to go upto and no further. 17. I am fortified in my conclusion by a Division Bench decision of Calcutta High Court reported in Sylhet Loan and Banking Co. Ltd. v. Ahmad Majtoba, AIR 1946 Cal 337, and a decision of the Madras High Court in In re Chockalingam, AIR 1945 Mad 525. I may state the facts of the latter case because it deals with a criminal law. Under Clause 5(1) of the Newspaper Control Order, 1942, the number of pages to be published in a week in a newspaper was limited to 26. The appellant, who was the editor, printer and publisher of a vernacular daily paper, had published during the weeks ending 25th June, 1944 and 2nd July, 1944 newsprint covering 28 and 32 pages respectively. He was convicted and sentenced to pay a fine of Rs. 200/- on each count. By the Newspaper Control Order of 1944, which came into force on 17th July, 1944, the earlier Newspaper Control Order of 1942 was superseded. The new Newspaper Control Order contained no provision similar to Clause 5(1) of the earlier Order. On the date on which the appellant was prosecuted, there was no law in the Statute book under which he had committed any offence in respect of the acts complained of. The new Newspaper Control Order contained no provision similar to Clause 5(1) of the earlier Order. On the date on which the appellant was prosecuted, there was no law in the Statute book under which he had committed any offence in respect of the acts complained of. It was argued on behalf of the appellant in the High Court that even though it was an offence under the Order as it stood on the date on which the publications were made, still by reason of the fact that the law which he was said to have contravened was superseded and ceased to be the law on the date on which he was prosecuted, he could not be held to be guilty of any offence. The High Court held that the question as to whether an offence was committed or not depends on the state of the law when the offence was committed and not on the law as it is on the date on which the prosecution is started. In the case of penal provisions, a person who commits an offence becomes liable the moment the offence is committed. The printing and publishing of newspaper during the weeks ending 25th June, 1944 and 2nd July, 1944 containing 28 and 32 pages respectively became an offence at the end of each of those two weeks when the newspapers were published with the number of pages mentioned above. There could be no doubt that the appellant was guilty of committing offences under the Newspaper Control Order of 1942 on those dates. It was pointed out by the High Court that the new Newspaper Control Order of 1944 did not contain any provision that there should be no prosecution for offences already committed under the Order which was superseded. The same position obtains here. I agree with the view expressed in the above decision of the Madras High Court. 18. Mr. Ganatra has next submitted that if a commonsense view is to be taken, the act of the accused would not be an offence. Under the Act, what has to be punished is the sale of an adulterated article of food. I agree with the view expressed in the above decision of the Madras High Court. 18. Mr. Ganatra has next submitted that if a commonsense view is to be taken, the act of the accused would not be an offence. Under the Act, what has to be punished is the sale of an adulterated article of food. The very reason why the lower standard of 55.6 had been fixed under the Notification dated 5th February, 1976 was that it was thought that even cotton seed oil giving as low at 55.6 of butyro-refractometer reading at 40°C is considered pure and not adulterated. If, therefore, the accused had sold cotton seed oil which gave the above test as 57.0, it could not be considered anything else than pure. 19. There is, however, not much scope for taking the commonsense view when artificial meanings and standards have been given and fixed for the articles of food to show whether they are adulterated or otherwise. Take for instance, the case of buffalo's milk. It may be that the natural milk extracted from a buffalo without adding anything to it or taking anything out of it will satisfy the commonsense meaning or definition that the milk is pure, but it may still not satisfy the standards laid down by the Act and the milk, on the ground that it does not satisfy those standards, may be found to be adulterated under the Act. In the present case, the butyro-refractometer reading at 40°C was laid down as 57.9 as the minimum under Item A.17.02 for cotton seed oil in Appendix B of the Rules. The article would be adulterated within the meaning of the Act if the standard fell below 57.9. It had so fallen in this case, and, therefore, the cotton seed oil in question was adulterated. 20. The second ground on which the conviction of the two accused is challenged by Mr. Ganatra is that there was non-compliance of Rules 17 and 18 of the Rules and, therefore, the report of the Public Analyst could not be made the foundation upon which the conviction of the accused could be based. 20. The second ground on which the conviction of the two accused is challenged by Mr. Ganatra is that there was non-compliance of Rules 17 and 18 of the Rules and, therefore, the report of the Public Analyst could not be made the foundation upon which the conviction of the accused could be based. Rule 17 provides that the container of sample for analysis shall be sent to the Public Analyst by registered post or railway parcel or air freight or by hand, etc., in sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst. Rule 18 provides that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him, etc. The only witness examined by the prosecution to prove compliance with Rr.17 and 18 is Food Inspector Mugdam. Mr. Ganatra read over to me the following portion from the evidence of Mugdam :- "One of the sealed packets of the bottle was given to the accused in the presence of pancha. One bottle was kept with me and the other was sent to P.A., Poona, by registered post. I sent the memorandum and the specimen signatures with the sample to P. A. I produce the memorandum (Ex. 14) and specimen of seals (Ex. 15). A copy of the memorandum and specimen of seal were sent to P. A. by registered post." Mr. Ganatra has pointed out that the witness has stated that he had sent specimen of seals along with the sample to the Public Analyst and this, according to Mr. Ganatra, is non- compliance with Rules 17 and 18 both. 21. I have compared the above English version of the deposition of Mugdam with the Marathi deposition and I do not find in that deposition any statement that specimen of seals were enclosed with the sample. His deposition in Marathi is to the following effect :- Although the above record of the evidence of the witness made is also not happily worded, the gist of that evidence shows that a sealed sample was sent to the Public Analyst and specimen of the seals were also sent along with a copy of the memorandum by separate registered post. There was no challenge to that evidence in cross-examination. There was no challenge to that evidence in cross-examination. It will have, therefore, to be held that Rules 17 and 18 were duly complied with. 22. The next submission of Mr. Ganatra is that when the learned trial Magistrate recorded the statement of the accused under Section 342 of the Code of Criminal Procedure, 1898, he had not explained to the accused in what way the cotton seed oil was found to be adulterated. That had prejudiced the defence of the accused. It will, however, be seen from the frame of question No. 9 that the accused were made aware that according to the report of the Public Analyst, the sample was adulterated. A copy of the report of the Public Analyst was also made available to the accused. There was, therefore, no question of the defence being prejudiced because the details in the report of the Public Analyst showing how the commodity was adulterated were not explained to the accused when their statements were recorded under Sec. 342 of the Code of Criminal Procedure, 1898. 23. The next submission of Mr. Ganatra is that the defence of accused No. 1 Dattatraya that cotton seed oil was not for human consumption but was kept in the shop for sale for use in Samai (lamp) ought to have been accepted. He relied on the decision of the Supreme Court in Ashu Jaiwant v. State of Maharashtra, AIR 1975 SC 2178 : (1975 Cri LJ 1868), where the defence that Til seeds were kept in the shop for Pooja and not for sale as an article of food for human consumption was accepted. From Ex. 34, the written statement of accused No. 1 Dattatraya, it is clear that he had a barrel of about 200 Kgs. of cotton seed oil in his shop for sale. It was from this barrel that accused No. 1 used to take out small quantities of oil in a tin and it was from this tin that the sample was taken. It does not appear probable that this large quantity of oil was kept in the shop for sale for the purposes of being used as lamp oil. It may be that some customers were coming to the shop demanding oil for lamp and accused No. 1 Dattatraya was selling quantities of oil from this very oil to them as well. It does not appear probable that this large quantity of oil was kept in the shop for sale for the purposes of being used as lamp oil. It may be that some customers were coming to the shop demanding oil for lamp and accused No. 1 Dattatraya was selling quantities of oil from this very oil to them as well. But that does not mean that all the oil kept in the barrel was being sold as lamp oil only. The evidence of Mugdam shows that cotton seed oil is edible oil. The written statement (Ex. 34) also contains an admission that all the edible oils, the rate of cotton seed oil was the lowest. Mugdam has denied the suggestion that when he wanted to take sample of the oil, accused No. 1 Dattatraya told him that the oil was not for sale as edible oil but was to be sold as lamp oil. It is true that the panch Chandrakant Talathi has tried to support the defence of accused No. 1 Dattatraya, but no reliance can be placed on his evidence as he was declared hostile since he started giving evidence contrary to the recitals in the documents to which he was a party. 24. The facts in Ashu Jaiwant's case (1975 Cri LJ 1868) (SC) before the Supreme Court were different. Some Til seeds were found kept in a jar in the shop of the accused-appellant. From the report of the Public Analyst it appeared that Til seeds were full of cocons, visible to the naked eye and, therefore, the defence of the accused was accepted that they were not kept as Til seeds in the shop for human consumption but were to be sold only as a substance used for Pooja. The panch witness Tambe (P.W. 1) in that case had given evidence which contradicted with the evidence of Food Inspector Gaydhani (P.W. 2) and Tambe had not been declared hostile. The evidence of the Food Inspector was also not satisfactory. It was having regard to all these circumstances that the defence of the appellant-accused was found probable. That decision is, therefore, hardly of any assistance to the accused here. The defence of accused No. 1 Dattatraya, that the cotton seed oil was not for human consumption but was kept in the shop to be sold as lamp oil, cannot be accepted as true. 25. That decision is, therefore, hardly of any assistance to the accused here. The defence of accused No. 1 Dattatraya, that the cotton seed oil was not for human consumption but was kept in the shop to be sold as lamp oil, cannot be accepted as true. 25. The last submission of Mr. Ganatra is that, at any rate, accused No. 2 Ram is not liable to be convicted. Admittedly, the was not present when the Food Inspector purchased cotton seed oil from the shop. The liability is sought to be fastened on accused No. 2 Ram only on the ground that the shop from which the cotton seed oil was purchased is a partnership shop of both the accused, but that alone, according to Mr. Ganatra, is not sufficient to fasten the liability on accused No. 2 in view of the language of Section 17 of the Act. 26. The above submission of Mr. Ganatra carries force. Mugdam has stated in his evidence that it was only accused No. 1 Dattatraya who was present in the shop and all that he has stated in order to fasten liability on accused No. 2 Ram is that both the accused are partners of the shop. Section 17(1) of the Act provides :- "Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly." Explanation (a) shows that "company" means any body corporate, and includes a firm or other association of individuals. Here, the offence is said to have been committed by the shop as well and it was for the prosecution to show that accused No. 2 Ram was in charge of, and was responsible to the shop for the conduct of, the business of the shop as well as the shop. The ordinary principle in fixing civil liability that every partner of the firm is liable for the acts of any other partner will not apply in fixing criminal liability under the Act in view of the special provision made in Section 17(1) of the Act. The ordinary principle in fixing civil liability that every partner of the firm is liable for the acts of any other partner will not apply in fixing criminal liability under the Act in view of the special provision made in Section 17(1) of the Act. If criminal liability were also to be fastened one partner just as a civil liability is fastened, there was no need to make a provision like the one in S.17(1) of the Act. (See also Manibai v. State of Maharashtra, AIR 1974 SC 434 : (1974 Cri LJ 451). In this view of the matter, accused No. 2 Ram cannot be held liable. 27. On the first submission of Mr. Ganatra, therefore, I hold that the conviction of accused No. 1 Dattatraya is correct and it will have to be confirmed. But the conviction of accused No. 2 Ram is not correct and it will have to be set aside. 28. Although this criminal revision application was filed by the State for enhancement of the sentence and Mr. Barday argued in the beginning that at least the minimum sentence prescribed by law ought to have been imposed on the accused, after submissions were made by Mr. Ganatra on the basis of the Notification dated 5th February 1976 by which the standard of butyro-refractometer reading at 40°C prescribed in (a) of Item A.17.02 of Appendix B of the Rules in the Case of cotton seed oil was reduced from 57.09 at its minimum to 55.6, Mr. Barday conceded that the offence committed by accused No. 1 is a technical offence, inasmuch as the act of accused No. 1 Dattatraya if performed today would not amount to an offence and, therefore, taking this as a mitigating circumstance, the State will have no objection even if accused No. 1 Dattatraya, instead of being sent to jail and made to pay a fine, is released on probation under the Probation of Offenders Act, 1958. In this view of the matter, Mr. Ganatra has not pressed his other submissions. 29. In the result, the conviction of accused No. 2 Ram Mathur Kothari and the sentence imposed on him are hereby set aside and he is acquitted. In this view of the matter, Mr. Ganatra has not pressed his other submissions. 29. In the result, the conviction of accused No. 2 Ram Mathur Kothari and the sentence imposed on him are hereby set aside and he is acquitted. The conviction of accused No. 1 Dattatraya Mathur Kothari is confirmed, but the sentence imposed on him is set aside and he is released on probation under Section 4 of the Probation of Offenders Act on his entering into a bond in the sum of Rs. 2,000/-, with one surety for the like amount, to the satisfaction of the Judicial Magistrate, First Class, Khed, to appear and receive sentence when called upon during the period of one year and in the meantime to keep the peace and be of good behaviour. The fine, if paid by accused No. 2 Ram, shall be refunded to him. The fine paid by accused No. 1 Dattatraya shall be refunded to him on his executing the bond as mentioned above. The criminal revision application filed by the State for enhancement of the sentence stands dismissed and the Rule is discharged. Application dismissed.