RAJDOOT HOTEL Vs. STATE

JUDGEMENT

(1.) This revision petition is directed against the judgment and order dated Dec. 14, 1967 passed by Shri Banwari Lal Nagpal, Additional Sessions Judge, Delhi, whereby he maintained the conviction and sentence of the petitioner in respect of an offence under Sec. 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to be the Act'). The petitioner alongwith one Shri Jit Pal Singh was tried for having sold adulterated curd weighing 600 grams to P.W. I Food Inspector Shanti Nath. The Food Inspector purchased the curd for the purpose of analysis. On analysis the sample was found to be adulterated to the extent of 3.79 deficiency in fat percent equivalent to 631 percentage deficiency in fat according to the standard laid down for the curd prepared from the buffalo milk. The trial court found the petitioner and Jit Pal Singh guilty of having committed the offence under section 7/16 of the Act and sentenced Jit Pal Singh till the rising of the court and a fine of Rs. 3000.00, in default to undergo rigorous imprisonment for one year. The petitioner hotel was sentenced to pay a fine of Rs. 7000.00. The petitioner as also Jit Pal Singh feeling aggrieved by the aforesaid sentence and conviction filed appeal before the Sessions Judge which, as already noted, was heard by Shri Banwari Lal Nagpal, Additional Sessions Judge who by his impugned judgment acquitted Jit Pal Singh but maintained the conviction and sentence of the petitioner. The petitioner has challenged its conviction and sentence in the present revision petition. Shri D.C. Mathur, appearing for the petitioner, urged that the sample of curd was not a representative sample and there being an infringement with regard to the lifting of sample the conviction and sentence was vitiated. The learned counsel who read out the statement of P.W. 1 Food Inspector Shanti Nath and another witness was not able to substantiate his contention. As a matter of fact he was not able to point out from the cross-examination any question put to Shanti Nath P.W. 1 challenging that the sample lifted was not a representative sample.

(2.) The next contention urged was that the petitioner had not sold the curd. This contention stands falsified from the statement of the petitioner recorded under section 342 Cr. P.C. I will advert to it subsequently. It was next urged that Jit Pal Singh having been acquitted and the appeal filed by the State against his acquittal having been dismissed, the conviction and sentence of the petitioner cannot be maintained.

(3.) The precise argument was that the appellate court (Shri B.L. Nagpal, Additional Sessions Judge) having acquitted Jit Pal Singh holding that there was nothing on the record to show that Jit Pal Singh appellant as the manager of Hotel Rajdoot, New Delhi was in any way concerned with the preparation of curd or with the supply of milk for the preparation of that material and further holding that there was "also nothing on the record to show that Jit Pal Singh appellant was salesman or that he sold for analysis a sample to the Food Inspector", the conviction against the petitioner could not be sustained, in that, the petitioner being a juristic person cannot be held liable for having sold adulterated curd unless it was proved on record that some person acting for and on behalf of the petitioner sold the curd to the Food Inspector. The argument is specious but is without force. The fact of Jit Pal Singh having been acquitted by the appellate court would not be determinative of the matter. His acquittal was challenged in appeal (Appeal No. 53/68) which was dismissed by a Bench of this Court on the ground that the appellant (Municipal Corporation of Delhi) was unable to serve Jit Pal Singh. Municipal Corporation of Delhi subsequently filed an application (Cr. M. 177/77) for re-calling the earlier order passed by the Bench dismissing the appeal. The said application was also dismissed on the ground that the fact that Jit Pal Singh was served subsequent to the date of the order dismissing the appeal was of no consequence and, therefore, the earlier order passed by the Bench could not be re-called. The main consideration which prevailed with the appellate court in acquitting Jit Pal Singh was that the prosecution had failed to show that the offence was committed with the consent or connivance of Jit Pal Singh or was attributable to any neglect on his part. It is no doubt true that the appellate court also noted in the judgment that there was nothing on the record to show that Jit Pal Singh was the salesman or that he sold for analysis the curd in question to the Food Inspector. This observation of the trial court, in my opinion, is of no consequence to the petitioner. In the statement of the petitioner recorded under sect ion 342 Cr. P.C. to a question that on 25-10-1966 Jit Pal Singh was acting as its manager, the reply of the petitioner was that it was correct. To another question that it was borne out from the evidence on record against the petitioner that on 25-10-1966 on behalf of the petitioner at about 12.30 p.m. curd in question was stored by it for sale. Instead giving a forthright answer confirming or denying the factual position put to the petitioner, the petitioner contended itself by denying simplicitor, because of its absence. It was further asked from the petitioner that on its behalf on 25-10-1966 at about 12.30 p.m. Food Inspector Shanti Nath purchased the sample of curd in question from its manager, Jit Pal Singh for analysis. The petitioner again instead of making a forthright statement affirming or denying the factual position put to it, evaded the question by saying that he was not aware of it. The statement made on behalf of the petitioner by itself is enough to negative the above noted contention sought to be urged on its behalf. Besides, this contention is falsified by the documentary evidence Ex. PB and Ex. PC on the record witnessing taking of the sample from the petitioner. In Ex. PC it is stated that the curd out of which the sample was taken was stored for sale by the petitioner although Jit Pal Singh hastened To add on the document that they do not sell curd in hotel and as such he was not prepared to accept the charges. It is significant to note that Jit Pal Singh did not mention in Ex. PC that the curd was not stored by the petitioner. The only plea taken at that time was that the petitioner do not sell curd as such. It is well established that a sale to the Food Inspector answers the definition of the term "sale" envisaged by section 2(xiii) of the Act. Ex. PE also shows that the sample of curd was taken for analysis. Jit Pal Singh received a copy of that notice which fact he recorded on Ex. PB in his own hand. it is, therefore, futile for the petitioner to contend that no sale of curd was made on its behalf to the Food Inspector. It is significant to note here that Jit Pal Singh in his statement recorded under section 342 Cr. P.C. had admitted that he sold curd weighing 600 grams to Food Inspector Shanti Nath for analysis and that a sum of rupee one was offered to him as price of the curd sold which he refused to accept. In face of this categorical admission by Jit Pal Singh that curd was sold to the Food Inspector Shanti Nath it is futile to contend that the petitioner had not sold the curd in question to the Food Inspector.