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2005 DIGILAW 746 (KER)

M. D. Pappu v. Food Inspector

2005-11-28

K.HEMA

body2005
ORDER K. Hema, J. 1. Does a mere vendor of a food article require licence to sell such article? Can he be convicted for violation of R.50 of the Prevention of Food Adulteration Rules (the P.F.A. Rules' for short) in the absence of holding a valid licence to sell the food article? 2. The revision petitioner was found guilty and convicted by the Judicial Magistrate of First Class for offences punishable under Ss.16(1)(a)(i) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act (hereinafter referred to as "the P.F.A. Act). It was held that petitioner sold adulterated food article and that he did not have licence as per R.50 of the P.F.A. Rules. Therefore, as a vendor he is liable for sale of adulterated food article and also for not having licence to sell the article. In appeal, Sessions Court set aside the conviction and sentence passed against the Revision Petitioner under S.16(1)(a)(1) of the P.F.A.Act and he was acquitted of the said offence, finding that petitioner did not sell any adulterated food article. However, it was held that Revision Petitioner was not having any licence at the time of sampling to sell the food article and hence. conviction and sentence passed against him under S.16(1)(a)(i) were confirmed. The challenge in this revision is against such conviction and sentence. 3. According to prosecution on 25.3.1992, PW-1 the Food Inspector inspected the shop bearing No. 10/33 of Malayattoor-Neeleswaram Panchayat and took samples of `cow pea'. The food article was sold by the petitioner to the Food Inspector. Sampling was done in accordance with the provisions of the P.F.A. Act and the P.F.A. Rules. On analysis, the sample was found to be adulterated. The petitioner did not have licence for sale of food article under R.50 of the P.F.A. Rules and hence he is liable for such violation. The petitioner also is the owner of the business and he is guilty of violation of R.50 of the P.F.A. Act as owner also. 4. According to the petitioner, he is not the owner of the business, but the business belongs to his son who is abroad. He also contended that on the date of sampling, he was not even present in the shop, but his grandson alone was present there. He did not sell any adulterated food article to the Food Inspector, but a case is falsely foisted against him. He also contended that on the date of sampling, he was not even present in the shop, but his grandson alone was present there. He did not sell any adulterated food article to the Food Inspector, but a case is falsely foisted against him. He only went to the shop as sent for by the Food Inspector. 5. The evidence consists of the oral testimony of PWs.1 to 4 and DWs. 1 to 3. Exts.P1 to P16 and Exts.D1 to D4 were also marked. The lower Appellate Court found that though the charge for sale of adulterated food article will not lie against revision petitioner, he was not having a valid licence to sell the food article. And hence, he committed offence punishable under S.7(iii) read with S.16(1) (a)(ii) of the P.F.A. Act. It was also found that the contention raised by the revision petitioner that he was not the owner of the business run in the shop from which sample was taken, will not be sustainable since as per evidence, the food article was purchased from revision petitioner himself, and he was not having any licence at that time to sell the food article. Hence he violated R.50 of the P.F.A. Rules and he was convicted accordingly. 6. The prosecution case is that local authority which has to issue licence under R.50 in this case is the Panchayat, but revision petitioner did not obtain any licence from the Panchayat for the sale of the food article. The further case is that revision petitioner is the owner of the business conducted in the shop and hence he is under a liability as the owner to hold a licence for sale of food article. The revision petitioner is hence allegedly guilty of violation of R.50 of the P.F.A. Act as a vendor as well as owner, Since it was found by Appellate Court that the article purchased from him cannot be said to be adulterated, he was acquitted of the offence for sale of adulterated food article. But, he was convicted and sentenced for violation of R.50 of the P.F.A. Rules, as vendor as well as owner of the shop. But, he was convicted and sentenced for violation of R.50 of the P.F.A. Rules, as vendor as well as owner of the shop. The revision petitioner, having been convicted for violation of R.50 in both the capacity as vendor and owner, a question will arise whether both the vendor and the owner of a shop require licence as provided under R.50 of the P.F.A. Rules. 7. The main contention taken up by the revision petitioner is that he is not the owner of the business and hence, he is not legally liable to have any licence under R.50 of the P.F.A.Rules. He has also a case that a vendor is not bound to take any licence under R.50 and hence the conviction is bad. R.50 of the P.F.A. Rules (excluding irrelevant portion) reads as follows:- "50. Conditions for licence.- (1) No person shall manufacture, sell stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food (or irradiated food) except under a licence: Provided that the fruit products covered under the Fruit Products Order,1955. solvent extracted oil, deoiled meal and edible flour covered under the Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967, [vanaspati covered under the Vegetable Oil Products (Regulation) Order, 1998], and meat and poultry products covered under the Meat Food Products Order, 1973 shall be exempted from the above rule. Provided further that a producer of milk, who sells milk only to a milk co-operative society which is a member of milk co-operative Union engaged in reconstitution of milk or manufacture of milk products, shall be exempted from this sub-rule: Provided also that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food which has been subjected to the treatment of irradiation, except under a licence from Dept. of Atomic Energy (Control of Irradiation of Food), under the Atomic Energy Act. 1962 (Act 33 of 1962). (1A) One licence may be issued by the licensing authority of one or more articles of food and also for different establishments or premises in the same local area. (1B) The name and address of the Director or Manager, as the case may be, nominated by the company, under R. 12-B shall he mentioned in the licence. (2) The State Government or the local authority shall appoint licensing authorities. (1B) The name and address of the Director or Manager, as the case may be, nominated by the company, under R. 12-B shall he mentioned in the licence. (2) The State Government or the local authority shall appoint licensing authorities. (3) xxx xxx xxx (4) xxx xxx xxx (5) Before granting a licence for manufacture, stock or exhibition of any of the articles of food in respect of which a licence is required, the licensing authority shall inspect the premises and satisfy itself that it is free from sanitary defects. The applicant for the licence shall have to make such alteration in the premises as may be required by the licensing authority for the grant of a licence. Provided that the licensing authority may for reasons to be recorded in writing, refuse to grant licence, if it is satisfied that it is necessary to do so in the interest of public health. (7) Proprietors of (hotels, restaurants and other food stalls (including mobile and itinerant food stalls) who sell or expose for sale, savouries. sweets or other articles of food) shall put up a notice board containing separate lists of the articles which have been cooked in ghee, edible oil, (vanaspati) and other fats for the information of the intending purchasers. (9) No licensee shall employ in his work any person who is suffering from infectious, contagious or loathsome disease. 8. On a plain reading of R.50, it may appear that the Rule does not make any distinction between a vendor and the owner of the shop where the article of food is exhibited for sale or stock. It is only stated therein that no person shall sell or exhibit for sale any article of food etc., except under a licence. Therefore, it may apparently appear that a vendor of the food article as well as the owner is under a liability to have a licence for sale of article, exhibition of article as well as stock of the same in the business premises. The learned Public Prosecutor contended that since there is nothing in the rule to indicate any distinction between the owner or the vendor, it has to he concluded that the vendor is also under a legal liability to hold a licence and hence the conviction passed against the petitioner is only sustainable. 9. Does a vendor of a food article require a licence under R.50? 9. Does a vendor of a food article require a licence under R.50? Sub-r. (1A) shows that one licence may be issued by the licensing authority in respect of food article and also for the premises within a particular area. This indicates that the licence is to be issued not only in respect of the articles but in respect of the premises also. In this regard, a reading of the Kerala Prevention of Food Adulteration Rules (K.P.F.A. Rules, for short) also will be of some use. R.3(d) of K.P.F.A. Rules provides that the local authority or any person nominated by them in writing in this behalf shall be the licensing authority for the local area concerned. 10. R.10 of K.P.F.A. Rules provides that no person shall sell, stock or exhibit for sale or distribute any food without a valid licence issued under these rules. The application for the grant of licence for sale of food shall be made by the licensing authority in Form No.4. The licence for sale shall be in form No.5. In R.13, it is provided that the licence shall. Not be granted unless the licensing authority is satisfied of two conditions. (i) that the premises are maintained in proper sanitary and hygienic conditions and (ii) that the licensee shall comply with the provisions of the Act and the Rules made thereunder and also abide by the conditions stated in the licence. 11. It is needless to say that the liability to maintain the premises of the shop in proper sanitary and hygienic conditions will be primarily that of the owner. A perusal of the conditions of licence detailed in Form No.5 reveals that those conditions cannot be complied with by a mere employee working in the shop. There are several conditions which a licensee has to comply with, as stated in Form No.5 and those can be complied with only by the owner of the shop and not by the employee or the vendor. As per condition No.4 in Form No.5, the licensee shall maintain such records as may be prescribed by the Government and submit such periodical returns to the Food Inspector as may be directed. This obligation to maintain the record cannot be with the employee or worker in the shop, but it can only be that of the owner of the business. 12. So also. This obligation to maintain the record cannot be with the employee or worker in the shop, but it can only be that of the owner of the business. 12. So also. Condition No.5 provides for declaration of the true nature of the articles of food stocked, sold or exposed for sale and this can be intended to be done only by the owner of the business and not by the employee. Condition No. 7 in Form No.5 shows that the licensee shall notify to the licensing authority any change in the ownership of the business or stoppage of the business within seven days of such change or stoppage and surrender of the licence. It cannot be presumed that a worker in a shop, a salesman, vendor or an employee is under a legal obligation to notify the change in the ownership of the business, because he may not have any responsibility for the conduct of the business. 13. It is also provided in Condition No.7 in Form No.5 that in the absence of a notification as stated in Condition No. 7, the licensee shall be deemed to be carrying on the business and he will be liable for penalty for non-compliance of any of the conditions in the licence. This makes it abundantly clear that the person who is expected to have the licence is not the vendor, but the owner of the business who is carrying on the business in the premises stated in the licence issued to him in Form No.4. The Condition No. 7 as provided in Form No.5 cannot be deemed to apply to an employee, but it can apply only to an owner. 14. A mere vendor cannot be held liable for sale without a licence, since the licence required is for sale, stock and exhibit for sale and distribution of food. Form Nos.4 and 5 reveals that licence is given "to sell, stock and exhibit for sale and distribute food". An employee or vendor cannot stock and exhibit for sale in the premises referred to in the licence issued to his employer. He may only sell the article as envisaged under the P.F.A. Rules on behalf of the owner, but the person who stocks and exhibits for sale of a food article is only the owner of the business and not the employee or the vendor working under the owner. He may only sell the article as envisaged under the P.F.A. Rules on behalf of the owner, but the person who stocks and exhibits for sale of a food article is only the owner of the business and not the employee or the vendor working under the owner. Hence, a mere vendor or employee being a person, who does not stock or exhibit for sale, but only sells the article on behalf of the employer, is not expected to have a licence as required under the K.P.F.A. Rules in Form No.5 read with Form No.4. 15. Though it is laid down in R.50 that no person shall sell a food article except under a licence, such sale refers only to a sale by the owner of the business either by himself or by any person on his behalf because the licence in Form No.5 is to be issued to the owner and not a mere vendor, worker or employee. It is only the person who is stocking and exhibiting for sale any food article in the premises referred to in the licence, who is prohibited from sale of food article, except under a licence. So the owner of the business alone is required to have a licence as stated in R.10 of the K.P.F.A.Rules and not a mere vendor/employee/worker. A mere vendor of a food article cannot, therefore, be held liable for violation of R.50 of the Rules, if he sells such article without a licence. 16. As per R.10, a person is prohibited from selling, stocking and exhibiting for sale a food article without a valid licence issued under the rules, but such a person can only be the owner of the business and not a mere vendor, who cannot stock an(exhibit for sale food article in the business premises. At the most, such vendor who may be an employee working under the owner of the business can only sell the foot article in the business premises on behalf of the owner and he is not expected to have a licence as provided under the rules. 17. In the above circumstances, even if the prosecution case is accepted the revision petitioner, who is found to be the vendor of the food article, (unless he is the owner of the business) cannot be held liable for violation of R.50 or R.10 of K.P.F.A.Rules. 17. In the above circumstances, even if the prosecution case is accepted the revision petitioner, who is found to be the vendor of the food article, (unless he is the owner of the business) cannot be held liable for violation of R.50 or R.10 of K.P.F.A.Rules. The Rules, which are laid down under the Kerala Prevention of Food Adulteration Rules in accordance with R.50 of the P.F.A.Rules, do not indicate that a mere vendor also, apart from the owner, is bound to take a licence for sale. 18. Now, the next probe will be as to whether the revision petitioner can be said to be the owner of the shop from which the sample is taken. The revision petitioner has a definite case that he is not the owner. The prosecution is bound to prove that he is the owner if he has to be convicted for violation of R.50 of the P.F.A.Rules. But, no document is produced to show that he is the owner of the business. PW-1 deposed that he did not make any enquiries with the authorities concerned to ascertain as to who is the owner of the business. There will be ample documentary evidence with the authorities concerned, to show as to who is the person owning the business run at a particular premise. It can be easily proved by documentary evidence as to who is in possession of the premises, from where the sample was taken and who was doing the business there. But, no documents are produced to prove ownership and there is no explanation for non-production. Having failed to do so, in the absence of best evidence, it cannot be concluded that the petitioner is the owner of the business which is conducted in the premises from where the sample is taken. 19. A mere examination of PW-4, the Executive Officer in charge of Neeleswaram-Malayattoor Panchayat is not at all sufficient to establish that the business was conducted in the premises by the petitioner. PW-4 only stated that the revision petitioner did not take licence under the P.F.A.Rules for the period 1991-92. He cannot and did not say that the accused is the owner of the business. PW-4 only stated that the revision petitioner did not take licence under the P.F.A.Rules for the period 1991-92. He cannot and did not say that the accused is the owner of the business. It is only if the petitioner is the owner of the business, that he is expected to take licence and hence he cannot be held liable for violation of conditions of licence or R.50 of the P.F.A. Rules. Learned Public Prosecutor strongly contended that unless the person from whom the article is purchased establishes that he is not the licensee, he cannot absolve himself from such criminal liability. He must at least point out the person who is the owner of the business, it is argued. 20. I am unable to accept this argument for various reasons. Even if the vendor points out a person as the owner of the business, no liability can be fastened on such a person, unless and until there is proof that he is the owner of the business. Merely because a person who vends a food article mentions the name of another person as owner of the business, no prosecution can be initiated against him. So also is a conviction. The failure of the petitioner to mention the name of the owner of the business is therefore not of any consequence and based on such failure, the conviction entered against petitioner cannot be upheld. 21. In the absence of evidence with respect to the ownership, the petitioner cannot be convicted for offence under S.16(1)(a)(ii) of the P.F.A. Act. He cannot be convicted as a vendor also, since a mere vendor need not take a licence for sale of an article of food under R.50 of the P.F.A. Rules. The conviction and sentence passed against the petitioner under the above section are, therefore, unsustainable and hence, set aside. 22. In the result, the revision petitioner is found not guilty and he is acquitted of offence under S.16(1)(a)(ii) of the P.F.A.Act. He is set at liberty forthwith. The Criminal Revision Petition is allowed.