ALIYARUKUNJU HAMSAKUTTY Vs. FOOD INSPECTOR MANNANCHERRY PANCHAYAT

JUDGEMENT

(1.) The petitioners (accused 1, 2 and 5) were tried by the District Magistrate, Alleppey for an offence under the Prevention of Food Adulteration Act (shortly stated the Act). The first accused was found guilty and convicted under S.16(1)(a)(i) read with S.7 of the Act and was sentenced to pay a fine of Rs. 300. Accused 2 and 5 were convicted under S.16(1)(a)(ii) treating this as a second offence, the second accused was sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 2,000/-, and the fifth accused the firm was sentenced to pay a fine of Rs. 2,000/-, the minimum fine prescribed for a second offence.

(2.) P. W. 1 the Food Inspector of Mannancherry Panchayat visited the shop of the accused, on 24-3-64 and purchased 750 grams of dhall from the first accused, out of a stock of 11 3/4 kgs. exposed for sale in a gunny bag and paid the price and obtained the receipt Ext. P. 2. The dhall that was purchased was duly sampled and sent to the public analyst and his report Ext. P. 6 showed that the sample was Kesari dhall, the sale of which was prohibited as being injurious to public health. A complaint was, therefore, filed against the fifth accused, being the partnership firm Kunju Mohammed & Co., and against accused 1 to 4 as the partners of the firm.

(3.) That they were partners is admitted. Ext. P. 9 is the udampady forming the partnership and appointing the 2nd accused as the managing partner responsible for the conduct of the business and fixing the monthly remuneration at Rs 50/- but the second accused would contend that he had ceased to be the managing partner with effect from 15-3-64, on which date he had resigned and sent a notice and after that date the first accused was in actual management. Accused 3 and 4 stated that though they were partners they were not taking part in the management and did not know about the particular transaction and hence was not guilty of the offence charged. The first accused contended that it was not a voluntary sale and that the dhall from which P W. I had earlier taken a sample had been kept separate in the antic and was intended for sale and that P. W. I insisted on his selling a portion to him and it was therefore only a case of seizure and acquisition by the Food Inspector in exercise of the powers vested in him. Learned District Magistrate acquitted accused 3 and 4 on the ground that they were not proved to be in charge of and responsible to the company for the conduct of the business of the company. First accused was convicted as he was the person who actually sold the dhall. The second accused was convicted, because he was in charge of the business and the 5th accused being the company. S.17 provides that where an offence is committed by a company every person who at the time the offence was committed was in charge of and responsible for conduct of the business would be prosecuted along with the company. The courts below have discussed and considered, in detail, the question whether the case that the second accused had resigned is true or not and whether the case of the first accused that it was not a voluntary sale, but only one of seizure is true and had come to the conclusion that the evidence of P. Ws. 1 to 3 could safely be accepted and that it was a case of voluntary sale. Learned District Magistrate also found that the case set up by the second accused that he had resigned and was not in management is not true.