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Gujarat High Court · body

2013 DIGILAW 29 (GUJ)

RAMAN KRISHNA IYER v. STATE OF GUJARAT

2013-01-18

G.R.UDHWANI

body2013
JUDGMENT 1. Being aggrieved by judgment and order dated 16.11.2005 passed by Fast Track Court, Surat, in Criminal Appeal No.67 of 2001 confirming the judgment and order dated 15.10.2001 passed by learned Judicial Magistrate, First Class, (Municipal Court), Surat, in PFA Case No.80 of 1995, sentencing the petitioner for offences punishable under Sections 7 (1) and 16 of the Prevention of Foods Adulteration Act, 1954 (for short, the PFA Act ), the petitioner has invoked revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure (for short, CRPC ). 2. Short facts giving rise to this petition are as under: 3. Respondent no.2 being Food Inspector employed with Surat Municipal Corporation, approached the petitioner at about 4:45 p.m. on 2.8.1995 and, after disclosing his identity, collected a sample of curd of 600 gms from 3 k.g. of curd found in a steel container from the petitioner s hotel Madras Cafe at Surat, as, according to him, it was kept for sale. He then added preservatives in required quantity, divided the same into three parts after stirring it, sealed it and forwarded it for analysis as required under the PFA Act and relevant Rules. According to second respondent, since it was found that the curd did not comply with the minimum standards laid down under Appendix-B to Prevention of Food Adulteration Rules (for short, Rules ), a case was made out and, therefore, after obtaining necessary sanction from the competent authority, a criminal case came to be lodged and the petitioner was prosecuted and ultimately found guilty, as aforesaid. 4. Learned advocate for the petitioner would submit that the Courts below had seriously erred in not properly appreciating the fact that the curd in question was not for sale as stated by the petitioner in his statement under Section 313 of the CRPC. It was submitted that, while the trial Court did not deal with said aspect, the appellate Court rested its finding on surmises and conjectures and presumed that the curd was for sale and that it was to be used by the petitioner in other food article and, therefore, ultimately, curd would have been sold. It was submitted that there was no basis for the appellate Court to have come to the said conclusion and, therefore, there is serious legal infirmity causing miscarriage of justice to the petitioner. It was submitted that there was no basis for the appellate Court to have come to the said conclusion and, therefore, there is serious legal infirmity causing miscarriage of justice to the petitioner. In support of her argument, reliance was placed on following cases:- 1. Municipal Corporation of Delhi Vs. Laxmi Narain Tandon etc. reported in 1975 Prevention of Food Adulteration Cases 444. 2. State of Gujarat Vs. Ashok Mulji Lakhani and others reported in 2007(4) Crimes 514 (Guj.) 3. The State of Maharashtra vs. Udayram Rupram Oza reported in 1977 Cri.L.J. 1807. (4) State of Maharashtra vs. Shankar of Shankar Vilas, Hindu Hotel reported in 1979(I) Prevention of Food Adulteration Cases 189. 5. It was next contended that samples were not taken in accordance with mandatory Rule 14 of the Gujarat Prevention of Food Adulteration Rules, 1955 ( for short the Rules ) inasmuch as the bottle in which the samples were taken was not cleaned in presence of the petitioner but admittedly it was claimed to have been cleaned at some other place. It was submitted that, therefore, since mandatory rule was not followed, miscarriage of justice has been caused. In support of above contention, following decisions were relied upon:- (1) Sudhirchandra B.Joshi, Food Inspector, Baroda Vs. Arvindkumar Naranbhai Patel and others reported in 1995(2) G.L.H. (U.J.) 24. (2) Arjan Dass Vs. The State of Punjab reported in 1983(I) Prevention of Food Adulteration Cases 163. 6. It was also submitted that, in order to make the sample homogeneous and representative, the curd was required to be first vertically cut and then churned and, thereafter, it was required to be divided into three parts. It was submitted that admittedly the curd was not vertically cut and it was not even churned. It was submitted that churning is a process different then stirring and the witness before the Court merely said that he stirred it. In support of her submission, following cases are relied:- 1. Santosh Kumar Sarma Vs. State of Assam reported in 2005(1) Food Adulteration Cases 231. (2) State of Maharashtra Vs. Rewatiprasad Menduram Agarwal and others reported in 1980(I) Prevention of Food Adulteration Cases 131. 7. Learned counsel appearing for the respondents would submit that there are concurrent findings of fact recorded by Courts below and, therefore, this Court, having limited jurisdiction may be slow in interfering with the factual findings. (2) State of Maharashtra Vs. Rewatiprasad Menduram Agarwal and others reported in 1980(I) Prevention of Food Adulteration Cases 131. 7. Learned counsel appearing for the respondents would submit that there are concurrent findings of fact recorded by Courts below and, therefore, this Court, having limited jurisdiction may be slow in interfering with the factual findings. It was also submitted that the petitioner, on being asked to sell the sample to second respondent, had, without any resistance and without mentioning that it was not for sale, sold it to the second respondent and, therefore, it amounted to sale within the meaning of Section 2 (xiii) of the PFA Act. Learned APP, while inviting attention of this Court to Section 10 of the Act, submitted that the Food Inspector has wide powers to purchase the sample and that is what exactly he did and, therefore, the transaction in question should be regarded as sale made by the petitioner. It was sought to be contended by the respondents that mere storage of a food article, if found to be adulterated, would also constitute an offence under said provision. While distinguishing the case of Laxmi Narain (supra) it was contended that the Court raised two questions and answered the first question in affirmative that, even if a person is not given rebate for not consuming meal, a food article if it is included in a package, amounted to sale, and therefore, it was submitted that said decision comes to the rescue of the respondents rather than the petitioner. It was also submitted that the trial Court and the appellate Court properly appreciated the facts and found that the sample was properly taken and have recorded concurrent finding, and therefore, this Court may not interfere. 8. Having considered the arguments advanced by the parties, following questions fall for consideration of this Court:- i. Whether, mere collection of sample of curd in exercise of powers under Section 10 of the PFA Act and acceptance of the cost under sub-sec.3 thereof, ipso facto results into the sale of curd in ordinary course of business? ii. Whether mere storage of adulterated food article constitute an offence under the PFA Act? iii. ii. Whether mere storage of adulterated food article constitute an offence under the PFA Act? iii. Whether for conviction under Section 16 read with Section 7 of the PFA Act, the prosecution is required to establish; (a) that the sample of curd was adulterated and (b) that it was for sale in ordinary course of business within the meaning of Section 2(xiii) of the PFA Act? iv. Whether Rule 14 of Prevention of Food Adulteration Rules, 1955 was complied with in the matter of cleaning the bottles for collection of sample? 9. In order to appreciate the arguments advanced before this Court, it is necessary to have a glance at the relevant scheme of the PFA Act. As per Section 2 (ia), an article of food shall be deemed to be adulterated, inter alia, if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health [Section 2(ia)(l)], as also if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health [Section 2 (ia)(m)]. As per Clause(v) of Section 2 of the PFA Act, food means any article used as food or drink for human consumption other than drugs and water and includes any article which ordinarily enters into, or is used in the composition or preparation of human food, any flavouring matter or condiments, and any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purpose of the PFA Act. Sale has been defined in Section 2 (xiii) so as to mean, with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article. The term seller has not been defined but from the language used in Sub-section (xiii) of Section 2, it is amply clear that the person who sells for cash or on credit or by way of exchange whether by wholesale or retail, for human consumption or use, or for analysis, and or who executes an agreement for sale or makes an offer for sale, or exposes for sale or has in possession any article for sale or makes attempt to sell, is a seller. Section 2 (xiv) defines sample so as to mean any article of food taken under the provisions of the PFA Act or of any rules made thereunder. 10. Section 10 of the PFA Act empowers the Food Inspector to take samples of any article of food from:- (1) any person selling such article; (2) any person who is in course of conveying, delivering or preparing to deliver to such article to a purchaser or consignee; (3) a consignee after delivery of any such article to him. Sub-section (2) of Section 10 of the PFA Act empowers the Food Inspector to enter and inspect any place where any article of food is manufactured, or stored for sale or stored for manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis. Sub-section (3) of Section 10, which is important for the purpose of decision in this case makes it clear that where any sample is taken under clause (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken. As per sub-section (5), the power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where article of food may be kept for sale. To exercise the power of entry into the premises he is required to follow the procedure under the Code of Criminal Procedure, as far as may be. Sub-section (7) requires the Food Inspector to obtain signature of one or more persons if he intends to exercise the power under Clause (a) of sub-section (1), sub-section (2). To exercise the power of entry into the premises he is required to follow the procedure under the Code of Criminal Procedure, as far as may be. Sub-section (7) requires the Food Inspector to obtain signature of one or more persons if he intends to exercise the power under Clause (a) of sub-section (1), sub-section (2). This Section also penalizes an act which prevents Food Inspector from taking sample or exercising any power authorized by the PFA Act. 11. Section 7 of the PFA Act prohibits manufacture for sale or store, or selling or distributing, inter alia, any adulterated food and Section 16 penalizes importing into India or manufacturing in India food article for sale or storing food article or selling or distributing of food article which is adulterated, inter alia, within the meaning of sub-clause (m) of clause (ia) of sub-section (2). 12. Keeping in view above legal position, a reference may now be made to the cases cited at the bar. In Municipal Corporation of Delhi v. Laxmi Narain Tandon etc. (supra), food articles stored in the hotel were found to be adulterated and it was alleged that the articles of food of which the samples have been taken had been stored in the said hotel for sale. In defence, it was inter alia contended that no articles of food were sold in the hotel to the non-resident visitors or the public generally; that the hotelier provided residential accommodation, services and other amenities, including meals, only to the resident customers against the composite charge and that no rebate is allowed for food if a resident customer chooses not to eat it. The accused person was acquitted by learned Magistrate after holding inter alia that adulterated food articles were not stored for sale. Such an acquittal was upheld in appeal. The Hon’ble Apex Court framed two questions as under: (1) Whether for purposes of the Prevention of Food Adulteration Act, 1954 (for short, the PFA Act), there is no sale of food which is provided by a hotelier to a guest when a consolidated charge is made for room and the other amenities, including food, and when no rebate is allowed for any meal which may not be taken by the guest? (2) Whether the expression store , as used in section 7 and section 16 of the PFA Act, means storage simpliciter or storing for sale? 13. (2) Whether the expression store , as used in section 7 and section 16 of the PFA Act, means storage simpliciter or storing for sale? 13. This Court is concerned with only question no.2, above. In that context, the Hon ble Supreme Court, after discussing relevant scheme of the PFA Act, held in paragraph 12 as under: 12. From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms store and distribute take their colour from the context and the collection of words in which they occur in ss.7 and 16. Storage or distribution of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section. That this is the right construction of the terms store and distribute in s.16 (1) will be further clear from a reference to s.10. Under that section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take sample of an article of food from a person who is not covered by any of the sub-clauses of sub-s.1 (a) of sub-s.2. The three sub-clauses of sub-section 1(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is manufactured , stored or exposed for sale. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is manufactured , stored or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfill the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale, such as is referred in sub-SS.1(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon. In short, the expression store in s.7 means storing for sale and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under s.16(1)(a). (emphasis supplied) 14. Thus, it is amply clear from above observations and scheme of the provisions of PFA Act referred to in para 9, 10, 11 that storage or distribution of an adulterated article of food for a purpose other than for sale does not fall within the mischief of Sections 7 and 16 of the PFA Act and that the Food Inspector is authorized to take samples only from particular persons indulging in a specified course of business activity and the immediate and ultimate end of such activity is sale of an article of food, and if the article of food is not intended for sale and is in possession of a person, who does not fulfill the character of seller, conveyer, deliverer, consignee, manufacturer or storer for sale, the Food Inspector is incompetent to take a sample and launch prosecution on such sample being found adulterated. Thus mere storage of adulterated food article cannot constitute an offence under PFA Act. It is not the prosecution case that, when the Food Inspector entered into the hotel, the petitioner was engaged in sale of curd or that at that point of time there were customers in the hotel consuming or ordering for the curd or that curd was mentioned in menu card as one of the item for sale. It is also not the case of the prosecution that the Food Inspector made any inquiry ensuring that the curd was stored for sale or that the hotelier, who was selling many other items, was also a seller of curd. It is also not the case of the prosecution that the Food Inspector made any inquiry ensuring that the curd was stored for sale or that the hotelier, who was selling many other items, was also a seller of curd. The prosecution presumed that since a sample was given by the petitioner to the Food Inspector, without stating that it was not for sale, it amounted to sale . Thus, entire case proceeded on this wrong presumption. 15. The prosecution also expected the petitioner to disprove the fact that the curd was stored not for sale even as he parted with sample and accepted its cost. Therefore, in the first place, a question as to whether the petitioner could have refused to part with the sample of curd on the ground that it was not stored for sale without exposing himself to the proceedings under Section 10 of the PFA Act would arise. It may be recalled that the Food Inspector had disclosed his identity as such to the petitioner before collecting the sample in question. His intention was to collect the sample of food article presuming the petitioner as its seller. Under the circumstances, refusal of the sample on any ground could have exposed the petitioner to an additional prosecution under Section 10 of PFA Act. Thus, there is no merit in the argument of the learned counsel for respondents on this count. Further, sub-section (3) of Section 10, which obliges the Food Inspector to pay for the collection of sample at such rate as the article is being sold to the public at large, also, by itself, is clear enough to indicate that the sample which is collected must be of such food article which is meant for sale, but contra cannot be true. Just because a person accepts the cost of a food article collected from him, after Food Inspector discloses to him his identity, will not ipso facto amount to sale unless it is shown by the Food Inspector/Prosecution that, in fact, the food article was being sold in ordinary course of business. Just because a person accepts the cost of a food article collected from him, after Food Inspector discloses to him his identity, will not ipso facto amount to sale unless it is shown by the Food Inspector/Prosecution that, in fact, the food article was being sold in ordinary course of business. Further, the Courts were bound to deal with the case of the petitioner specifically pleaded by him in his statement under Section 313 of Cr.P.C. In Rajinder Kumar (supra), no such case was pleaded/proved and therefore the observations made in para 11 thereof relied upon by learned counsel for the respondents cannot be applied to the facts of the present case. Similarly State of Tamil Nadu vs. R.Krishnamurthy (supra) is not an authority on the issue involved in this case. Moreover, the appellate court appears to have misdirected itself by holding that adulterated food article was to be used as an ingredient in preparation of other food article even as it considered that fact which was not even pleaded and proved. Be it noted, that what was relied upon by the respondents was adulteration of curd by the petitioner, for his prosecution, and not any other product that could have been ultimately made by using the curd as one of the ingredient. 16. The Court may now refer to the relevant Rules of Prevention of Food Adulteration Rules, 1955. As per Rule 14, samples for analysis are required to be taken in cleaned dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. 17. In Sudhirchandra B. Joshi, Food Inspector, Baroda v. Arvindkumar Naranbhai Patel and Others [1995(2) GLH (U.J.) 24], this Court has unequivocally observed that the provisions of Rule14 are mandatory. In that case also, it was an admitted position that the bottle in which the samples were collected was not cleaned in presence of the accused and the peon who has stated to have cleaned the bottle was not examined. Similar fact situation is available on record of this case and, therefore, it is required to be held that the samples were collected in breach of said provision. Thus, the trial was vitiated. 18. Similar fact situation is available on record of this case and, therefore, it is required to be held that the samples were collected in breach of said provision. Thus, the trial was vitiated. 18. It is also required to be appreciated that generally the fats and other nutrients of articles like milk or curd would take the surface if stored for some time. Therefore, the Courts have repeatedly held [See: Santoshkumar Sarma (supra) and Revatiprasad Menduram Agarwal (supra)] that, while collecting the sample of curd, it has to be cut vertically then churned if the curd has not settled. It is, however, not clear in this case as to whether the curd had settled or not. The sample was stated to have been stirred by the Food Inspector. There is a marked difference between stirring and churning. While article can be said to have been stirred if it is rotated by means of spoon and churning would mean that it is vigorously blended so that every single part of its constituent is so mixed that it becomes homogeneous. Admittedly, the food article was not vertically cut and churned and, thus, there are all the reasons to believe that sample was not homogeneous. 19. As noticed above, there was no evidence with the trial Court showing that the food article was for sale as contemplated under Sections 7 and 16 of the PFA Act. Not only that, the Court did not appreciate the statement made by the accused under Section 313 of Cr.P.C., and the lower appellate court misdirected itself and considered the fact which was not even pleaded and proved. Thus, both the Courts below were in serious error of law. Even the mandatory provisions of the Rules, as aforesaid, were not followed and none of the Courts below appreciated that aspect. Thus the case for invocation of revisional jurisdiction by this Court is made out. 20. In view of above discussion, this Court is inclined to allow this petition. The petition is, therefore, allowed and impugned judgment and order dated 16.11.2005 passed by Fast Track Court, Surat, in Criminal Appeal No.67 of 2001 confirming judgment and order dated 15.10.2001 passed by learned Judicial Magistrate, First Class, (Municipal Court), Surat, in PFA Case No.80 of 1995, sentencing the petitioner for offences punishable under Sections 7 (1) and 16 of the PFA Act is quashed and set aside. The accused is ordered to be acquitted of the charges levelled against him under Sections 7 (1) and 16 of the PFA Act. Surety and bail bond, if any, stands discharged. Rule is made absolute accordingly.