GANGADHARAN NAIR Vs. FOOD INSPECTOR MUNICIPAL COUNCIL CHANGANACHERRY

JUDGEMENT

(1.) THE petitioner who is the secretary of Kottayam district Co-operative Milk Supplies Union was prosecuted along with the second accused, the sales manager at Changanacherry for having sold to P. W. 1, the food Inspector adulterated milk, an offence punishable under S. 16 (1) of the prevention of Food Adulteration Act 37 of 1954 (shortly stated the Act ). THE fact that the milk that was sold was adulterated is well proved and is, is fact, not disputed by the accused. THE second accused was the actual vendor of the milk, but both the accused were convicted by the Additional First Class magistrate, Changanacherry and the conviction was confirmed, in appeal, by the sessions Judge, Kottayam. THE first accused, the secretary alone has filed the revision petition.

(2.) THE only question that arises for decision is whether for the sale of the adulterated milk by the second accused the sales manager at changanacherry, the first accused who is the secretary of the union stationed at Kottayam could be held guilty of the offence. S. 17 (1) of the Act says that 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. THEre is a proviso to this sub-section to the effect that the secretary or other person can prove that the offence was committed without his knowledge and in spite of his exercising all due diligence to prevent the commission of such offence. Sub-section (2) of S. 17 says that if the prosecution establishes that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company such person shall be deemed to be guilty. It is not known why the company as such was not prosecuted. THE prosecution of the secretary was obviously under sub-section (1), in that the secretary was in charge of and responsible to the company for the conduct of the business of the company. No materials have been produced to warrant the inference that the offence was committed with the consent or connivance or neglect of the secretary. THErefore the onus is on the prosecution to prove that the secretary was responsible to the society for the conduct of the business of the society, namely the vending of milk and milk products. Unless this initial onus is discharged, there is no onus cast on the accused to prove that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence.