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2004 DIGILAW 68 (KER)

Food Inspector v. Subramanian

2004-02-17

R.BASANT

body2004
Judgment :- 1. Who effected the sale? Is it PW.1- the employee who handed over the sample to the Food Inspector or is it the respondent/1st accused, allegedly the Managing Partner, who received Form VI notice, received the price thereof, signed in Ext.P1 mahazar and also signed on the sample as required under the P.F.A. Act/Rules. This is the crucial question that arises for consideration in this appeal against an appellate judgment of acquittal in a prosecution under S.16(1)(a)(i) of the P.F.A. Act. 2. Initially, there were two accused. The respondent herein was arrayed in dual capacity as accused in the proceedings initiated by the Food Inspector. He was present in the shop when the sale was effected. According to the Food Inspector, the establishment is a partnership firm by name "Viswam Agencies". The 1st accused is the Managing Partner of the said partnership Viswam Agencies'. He also represents the partnership, the second accused, in his capacity as Managing Partner. When the Food Inspector went to the shop at 1 p.m. on 30.11.87, the 1st accused was present in the shop. The Food Inspector demanded sample of ground nut oil. He issued Form VI notice. Thereupon, PW1- an employee, handed over the sample. The 1st accused received the price thereof. Ext.P3 is the Form VI notice and Ext.P4 is the voucher. Mahazar was prepared by PW3 - Food Inspector. The 1st accused had signed in the mahazar also as the Salesman-cum-Managing partner. In the mahazar - Ext.P1, PW1, who handed over the sample, was also asked to sign. On the sample the first accused had signed as vendor. 3. On analysis, the Public Analyst reported and the Central Food Laboratory confirmed that the sample was adulterated. Observing all procedural formalities, the prosecution was launched against both the accused 1st accused in his individual capacity as one who has sold the article and 2nd accused the licenced partnership firm which runs the establishment "Viswam Agencies" represented by the first accused, its Managing Partner. 4. The accused denied the offence alleged against him. Thereupon, the prosecution examined PWs.1 to 4 and proved Exts.P1 to P20. In the course of cross-examination of prosecution witnesses and when examined under S.313 of the Crl.P.C., the accused took up a defence of omnibus denial. All the circumstances were denied. No specific stand was taken. 5. 4. The accused denied the offence alleged against him. Thereupon, the prosecution examined PWs.1 to 4 and proved Exts.P1 to P20. In the course of cross-examination of prosecution witnesses and when examined under S.313 of the Crl.P.C., the accused took up a defence of omnibus denial. All the circumstances were denied. No specific stand was taken. 5. The trial court, on an anxious evaluation of all the relevant contentions, came to the conclusion that all ingredients of the offence punishable under S.16(1)(a)(i) of the P.F.A. Act are established. It was held that it was the 1st accused who had effected the sale of the adulterated article to PW3. The second accused was acquitted as there was no evidence to show that the partnership was the licensee. 6. The learned Sessions Judge, in appeal, took note of the fact that it was PW1 who admittedly handed over the sample. Notwithstanding the undisputed fact that Form VI notice- Ext.P3 was issued to and received by the 1st accused, notwithstanding the fact that the price of the article was received by the 1st accused under voucher - Ext.P4 and notwithstanding the fact that in Ext.P1 mahazar the 1st accused had signed as Managing Partner-cum-Salesman, the learned Sessions Judge felt that the respondent/1st accused is entitled to the benefit of doubt. Accordingly, for the reason that it is not established satisfactorily that it was the 1st accused and not PW1 who effected the sale, the learned Sessions Judge proceeded to pass the impugned judgment of acquittal. 7. I have heard the learned counsel for the appellant/ complainant and the respondent/ accused. The learned counsel for the appellant contends that the appellate judge totally ignored the probabilities and artificially conceded the benefit of doubt where none existed to the respondent/ 1st accused. The learned Sessions Judge should have carefully and forensically considered, on the basis of the available evidence, as to who had effected the sale, under S.16(1)(a)(i) of the P.F.A. Act, any person whether by himself or by any other person on his behalf, sells an adulterated article of food is punishable. In the undisputed facts scenario available in this case, it was perverse for the court to come to a finding that the 1st accused is not proved to have sold the article beyond reasonable doubt, it is contended. 8. In the undisputed facts scenario available in this case, it was perverse for the court to come to a finding that the 1st accused is not proved to have sold the article beyond reasonable doubt, it is contended. 8. The learned counsel for the respondent/ accused initially reminds this Court of the nature and quality of jurisdiction in an appeal against acquittal. He also wants to bring to the notice of the Court passage of a long period exceeding 16 years from the date of the alleged offence. The learned counsel contends that the appellate judge had rightly chosen to concede the benefit of doubt as there is no clear, cogent and convincing evidence that the 1st accused had effected the sale. That discretion may not be interfered with in this appeal, it is contended. 9. I have considered all the relevant inputs. What is punishable is sale "by himself or by any other person on his behalf". Exts. P1, P3 and P4 as also the undisputed evidence of PW3 that on the paper slips and on the sample bottles it was the respondent/1st accused who signed as vendor, I am unable to invent any reasonable doubt as to who sold the article of food. The process of sale includes primarily receipts of the consideration for the sale in order to effect the sale, a licensee/ owner may employ several persons. To clean the article, a person may be employed. To stock the same, another may be employed. To weigh the same, yet another may be employed. To pack the same, still another could be employed. But the fact that the article before sale passes through the hands of all these persons would not and should not expose any of them to the allegation that they had effected the sale. In a situation like this, certainly one who had effected the sale is the one who has received the price of the article. It is artificial to assume that the employee who helped in the sale by packing the article or even handing over the article to the Food Inspector had effected the sale. That would be an artificial and imprudent approach to evidence. 10. The accused is entitled to effect the sale following the normal procedure which he would do in his shop. That would be an artificial and imprudent approach to evidence. 10. The accused is entitled to effect the sale following the normal procedure which he would do in his shop. The man sitting at the counter need not himself proceed to the article and hand over the article to the Food Inspector. He can follow the normal procedure which is adopted. The sale becomes complete when the money is received and delivery is effected. Notwithstanding the fact that the sample may have been handed over even before the money is received, the fact remains that such handing over is traceable only to the receipt of the money by the vendor. I am, in these circumstances, of opinion that there is absolutely no merit in the contention that PW1 is the real vendor in the instant case. We may come across many shops in the modern era where there is no salesman as such. Vending machines may be used and sale may be effected by merely remitting the amount. Vending machines cannot be the seller in that situation and certainly who had received the money/consideration/price alone can be held to be the vendor. 11. Moreover, the person punishable under S.16(1)(a)(i) of the P.F.A. Act is the person who sells the article by himself or by another person on his behalf. The facts reveal that even assuming that the employee-salesman had handed over the sample to the Food Inspector, it was the person who received the cash who effected the sale by another person on his behalf. In that view of the matter also, it must certainly be held that the 1st accused who received Form VI notice, who received the price and issued the voucher and who signed in the mahazar Ext.P1 as also on the sample, is the vendor and must be held to be the person who had effected the sale. Notwithstanding the fact that the first accused had availed of the services of PW1 to certain acts to effect the sale, he continues to be the one who sold the article. In any view of the matter, PW1 who only helped or assisted his employer who was sitting at the cash counter to effect the sale and who had not received the price of the article cannot be said to be the vendor. In any view of the matter, PW1 who only helped or assisted his employer who was sitting at the cash counter to effect the sale and who had not received the price of the article cannot be said to be the vendor. I do, in these circumstances, come to the conclusion that there is merit in the challenge. The learned appellate judge appears to have accepted that the respondent/1st accused is not the one who sold the article and it is PW1 who effected the sale. The said conclusion is grossly erroneous. It results in miscarriage of justice. No reasonable person could have come to such a conclusion. Interference in an appeal against the judgment of acquittal is certainly warranted in the facts and circumstances of this case. 12. The learned counsel for the accused does not make any attempt to challenge the verdict of guilty on any other specific ground. But the learned counsel prays that the matter may be sent back to the learned Magistrate for fresh disposal. What is the purpose? The learned counsel for the accused has filed an affidavit of the respondent/ accused. In that affidavit he brings to the notice of the Court that the respondent is laid up and is under medical treatment. That can have relevance only on the question of sentence, if any discretion is left with the Court on that aspect. 13. The other contention raised in the affidavit is that the accused may be given an opportunity to raise and substantiate the plea of warrantee under S.19 of the P.F.A. Act. Has any such contention been raised? Evidently and admittedly no contention to that effect was ever raised before the Courts below. Opportunity was there to raise the contention before the trial court. No contention was raised. Later, against the verdict of guilty, conviction and sentence when appeal was preferred before the Sessions Court, this contention could have been raised. There also no such contention has been raised. The cash bill/ invoice under which the purchase is made is not produced before the Food Inspector, before the court below or before the appellate Court. Even before this Court the cash bill/memo/invoice is not produced. The counsel submits that if an opportunity is given, it will be possible for the accused to get the relevant document (copy) summoned from the warrantor and prove the contention before the learned Magistrate. Even before this Court the cash bill/memo/invoice is not produced. The counsel submits that if an opportunity is given, it will be possible for the accused to get the relevant document (copy) summoned from the warrantor and prove the contention before the learned Magistrate. The short question is whether the accused is entitled for the luxury of such a further opportunity. 14. The offence in this case was committed as early as in 1987. In spite of several opportunities that the accused had, the plea of warrantee under S.19 of the Act was not raised before any forum. I am of opinion that at this belated hour this old matter cannot justifiably be sent back to the learned Magistrate in order to enable the accused to raise a new plea, which has not been raised during last decade and the half when the matter was pending. Remand cannot be directed as a matter of indulgence. There must be valid reasons to justify such a course. I find no such reasons in this case at all. In any view of the matter, I am satisfied that this is not a fit case where remand of this case must be directed to by this Court. The said request cannot be accepted. 15. Coming to the question of sentence, the minimum mandatory sentence prescribed in the Statute has got to be imposed. The court do not have the competence to impose any sentence less than the minimum mandatory sentence considering the nature of the article and the nature of adulteration. It follows, in these circumstances, that the minimum mandatory sentence has got to be imposed. 16. Before parting with the case the learned counsel for the respondent/ accused submits that the respondent may be permitted to move the Government for commutation of the sentence. I am of opinion that no expression of opinion by this Court is required. If the accused is entitled to move the State for commutation of the sentence, if there are sufficient grounds, he will, of course, be entitled to the same. 17. In the result (a) This appeal is allowed. (b) The impugned appellate judgment is set aside and the verdict of guilty, conviction and sentence imposed by the Court below are restored. 18. The learned Magistrate shall take necessary steps for the execution of the impugned sentence. 17. In the result (a) This appeal is allowed. (b) The impugned appellate judgment is set aside and the verdict of guilty, conviction and sentence imposed by the Court below are restored. 18. The learned Magistrate shall take necessary steps for the execution of the impugned sentence. The petitioner shall appear and his sureties shall produce him before the landlord Magistrate on 1.6.2004 for the execution of the sentence. Needless to say that the learned Magistrate shall be at liberty to take necessary action against the petitioner and his sureties under S.446 Cr.P.C. if the petitioner does not appear before the learned Magistrate as directed above.