GOVIND SHRIPAD MHASKAR Vs. SURESH DINDAYAL AGARWAL

JUDGEMENT

(1.) THIS criminal application has been filed by the original complainant (G.S. Mhaskar, Food Inspector, Poona Municipal Corporation, Poona) under Article 227 of the Constitution of India, challenging the order dated 16th August, 1974 passed by the Additional Sessions Judge, Poona, in Criminal Appeal No. 14 of 1974, setting aside the order of conviction under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the Act", and sentence of rigorous imprisonment for six months and fine of Rs. 1,000/-, in default, rigorous imprisonment for two months passed upon respondent No. 1 (original accused) by the Special Judge Magistrate, First Class, Poona Municipal Corporation, Poona in Regular Trial Case No. 3042 of 1973 on 11th January, 1974 and remanding the case to the trial Magistrate for a fresh trial. The case for the prosecution was that Mhaskar , the Food Inspector visited the grocery shop of the accused at Shivaji Nagar, Poona on 5th April, 1973. The accused had stored edible oil for sale. The Food Inspector disclosed his identity to the accused and asked him to sell 600 grams of groundnut oil. The accused sold the groundnut oil to the Food Inspector and received the price. The quantity purchased was divided into three equal parts and sealed in three bottles. One of the samples was sent to the Public Analyst who certified that the sample contained not groundnut oil but cotton seed oil. In due course, the accused was prosecuted on the ground that he had sold misbranded article of food within the meaning of section (2)(ix)(c) of the Act, which was an offence punishable under section 16(1)(a)(i) of the Act. The complainant was examined on 3rd January, 1974. The trial Magistrate framed a charge against the accused on the same day. The accused pleaded not guilty to the charge. He also made a statement that the wanted the prosecution witnesses, who had been examined till then, for cross-examination after the charge. The case was posted for further cross-examination of the complainant after the charge on 10th January, 1974. At that stage, another Advocate Shri Darode appeared for the accused. He declined to cross-examine the complainant. In his examination under section 342 of the Code of Criminal Procedure, 1898, the accused admitted that the complainant had asked for groundnut oil but stated that he did not know whether the oil which he sold to the complainant was groundnut oil or cotton seed oil, as he had not received the bill till then. He did not dispute the correctness of the evidence of the complainant, but stated he had committed a mistake because of the delay in receiving the bill. On considering the material before him, the learned trial Magistrate found that the accused had committed the offence with which he was charged and convicted and sentenced him as aforesaid. Feeling aggrieved by the order of conviction and sentence, the accused filed an appeal before the Sessions Court, Poona. On behalf of the accused, an application was filed in the Sessions Court that on 3rd January, 1974, the accused had made a statement that he did not plead guilty. At that time, he was represented by Shri N.M. Vaste, Advocate, who had advised the accused to contest the case. Thereafter, the accused had another Advocate, Shri Darode, who assured the accused that he would get for the accused the benefit of the provisions of the Probation of Offenders Act or a small, fine and that he should plead guilty. For this reason, no further cross-examination of the prosecution witnesses was made and the accused gave certain admissions in this examination under section 342 of the Code of Criminal Procedure, 1898. It was, therefore, contended-before the learned Additional Sessions Judge, who heard the appeal, that it was on account of the wrong advice of Shri Darode that the accused was persuaded to plead guilty. Actually, the accused wanted to contest the charge from the beginning. His defence was that he was not aware whether the oil which he sold to the complainant was groundnut oil or cotton-seed oil, as he has not received the bill. He had merely committed a mistake in describing the oil as groundnut oil, though, in fact, it was cottonseed oil, because of the delay in receiving the bill. The learned Additional Sessions Judge accepted the contention advanced on behalf of the accused that the defence of the accused about his having committed the mistake in selling cotton-seed oil as groundnut oil had not been properly appreciated by the trial Magistrate and the accused had been prejudiced in his defence because of the advice given by his Advocate that he should plead guilty. The learned Additional Sessions Judge accordingly set aside the order of conviction and sentence and sent back the case to the trial Magistrate for a fresh trial. It is against this order that the complainant has filed this application. The main submission of Mr. Agarwal for the petitioner is that even if the defence of the accused, to establish which the case was sought to be remanded, were to be accepted, that would not furnish a valid defence in law and, therefore, there was no point in remanding the case to the trial Magistrate for a fresh trial. It will be seen from the judgment of the learned Additional Sessions Judge that the only grievance which was made on behalf of the accused was that his defence about the mistake had not been properly appreciated. That defence was that the accused was not aware whether the oil which he sold to the complainant was groundnut oil or cottonseed oil and this was for the reason that he had not received the bill in respect of the goods. The accused had thus committed a mere mistake in describing the oil as groundnut oil, though, in fact, it was cottonseed oil. The learned Additional Sessions Judge seems to have taken the view that if accused were successful in proving that there was a bona fide mistake on his part in selling cottonseed oil as groundnut oil, that would furnish a valid defence, to the accused to the charge levelled against him. Section 19 of the Act, however, provides that it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vender was ignorant of the nature substances or quality of the food sold by him, etc. In the instant case, the defence of the accused was that he did not know whether what he sold was cotton-seed oil or groundnut oil. But even if this defence were to be accepted, that could not be a valid defence in law in view of the provisions in section 19 mentioned above. Even if the accused was ignorant of what substance he was selling, that could not be a valid defence in law to the charge of selling a misbranded article of food. In order to bring home the charge levelled against the accused, all that was required to be shown was that he had sold some article of food and the article of food sold by him was misbranded. There was no dispute that an article of food was sold by the accused. He had cotton-seed oil, it as was article of food, it was misbranded, because it was sold as groundnut oil and not as cotton-seed oil. Section 2(ix)(c) states that an article of food shall be deemed to be misbranded if it is sold by a which belong to another article of food, the name in which the article of food was sold was groundnut oil, but the article of food sold was in fact cotton-seed oil. THIS aspect of the matter does not seem to be present in the mind of the learned Additional Sessions Judge when he decided to remand the case for a re-trial with a view to enable the accused to establish his defence. As we have stated, even if the defence of the accused to were to be accepted into that would not be a valid defence in law to the charge of sale of misbranded article of food in view of the provisions in section 19 of the Act. The order of remand made by the learned Additional Sessions Judge could not thus be sustained and will have to be set aside. The appeal has not been disposed of by the learned Additional Sessions Judge on merits. We will have, therefore, to direct that he should dispose of the appeal on merits. In the result, the application is allowed. The order passed by the learned Additional Sessions Judge, setting aside the order of conviction and sentence passed against the accused and remanding the case to the learned trial Magistrate for a fresh trial, is set aside. The learned Additional Sessions Judge will now hear and dispose of the appeal on merits. The rule is made absolute.