PUBLIC PROSECUTOR Vs. P B HASSAN

JUDGEMENT

(1.) THIS is an appeal by the State against the acquittal of the respondent the sole accused, who was charged under section 16 (1) read with section 7 of the Prevention of Food Adulteration Act for selling some biscuits containing metanil yellow, a coal-tar dye, the use of which in food is prohibited. The Magistrate by coming to the conclusion that the prosecution failed to establish that the respondent was either the employer or the employee or even an agent of the owner of the shop in which the biscuits were sold held he cannot be said to be in possession of the biscuits for the purpose of sale, and accordingly acquitted him.

(2.) THE facts of the case are that on 27th January, 1970 at about 11 A. M. the Food Inspector, Division III, Visakhapatnam Municipality (P. W. 1), visited a fancy shop known as ' Haji K.Soophy and Compny' which is also otherwise known as 'Haji Fancy Stores', opposite to the Super Bazar, Main Road, Visakhapatnam, and purchased from the respondent, who was in the shop then, 600 gams of biscuits for Rs. 4-80 out of the biscuits which were exposed for sale in that shop at the rate of Rs. 8.00 per Kg. Suspecting the same to be adulterated, he called one outside mediator (P. W. 3) and in his presence and in the presence of his Sanitary Maistry (P. W. 2), he paid the price to the respondent and, obtained the receipt Exhibit P-1 and served a notice in form VI (Exhibit P-2) He divided the biscuits into three equal parts and sealed them separately in packets. He gave one sealed packet to the respondent. THEreafter, he prepared a mediators' report (Exhibit P-6) which was signed by P. Ws. 1 to 3 and the respondent. THEreafter, he sent one sample to the public analyst who on analysis as per Exhibit P-4 report found the biscuits to have contained metanil yellow, a coal-tar dye and is therefore, adulterated. On the strength of the above evidence, namely, the evidence of P. Ws. 1 to 3 and Exhibit, P-1 to Exhibit P-6 the respondent was prosecuted. THE Magistrate believed the evidence of P.Ws. 1 to 3 and accepted the prosecution case that P. W. 1 purchased the biscuits in question from the respondent while he was in the shop. But as already stated above, the Magistrate acquitted the respondent mainly on the ground that the prosecution failed to establish that the respondent was either the proprietor or employee or agent of the proprietor of the shop and therefore, it cannot be said that he was found in possession of adulterated articles for sale. THE Magistrate also held that there was nothing on record to show that the accused was the person who sold the biscuits to P. W. 1. THE Magistrate did not come to this conclusion by disbelieving the evidence of P.ws. 1 to 3. THE evidence of P. Ws. 1 to 3 and Exhibit P-1, Exhibit P-2, Exhibit P-4 and Exhibit P-6 conclusively establish that P. W. 1 purchased the biscuits in question only from the respondent and it is he who offered the biscuits for sale and received the price. THE respondent, has admitted in his statement under section 342 of the Code of Criminal Procedure that he signed in Exhibit P-1, Exhibit P-2, Exhibit P-3 and Exhibit P-6. In the circumstances, there is no justification in the conclusion arrived at by the Magistrate that there was nothing on record to show that the respondent is the person who sold the biscuits to P. W. 1. THErefore, the next question is, whether the respondent cannot be convicted if it is not established that he was either the proprietor or employee or agent of the proprietor. As provided under section 7 of the Prevention of Food Adulteration Act, 'No person shall himself or by any person on, his behalf manufacture for sale, or store, sell or distribute any adulterated food." THE expression 'person' has not been defined in the Act. If that is so, it prima facie includes every one who sells adulterated food. If the respondent was found selling the articles in the shop and he himself sold the biscuits in question, it can only be that he must have been so selling either as the owner or an employee of the owner or atleast as an agent of the. owner of the shop. In whichever capacity he sold the biscuits in question to P. W. 1, he comes under the ambit of section 7 of the Prevention of Food Adulteration Act. In Sarjoo Prasad v. State of U. P., the Supreme Court held "THE expression 'person has not been denned in the Act and in the context in which that expression occurs, it prima facie includes every one who sells adulterated food. By the collocation of the expression "no person shall himself or by any person on his behalf" the employer alone is not prohibited. THE intention of the Legislature is plain. Every person, be he an employer or an agent is prohibited from selling adulterated food." THE same view was reiterated by the Supreme Court in Ibrahim Haji moideen and another v. Food Inspector, wherein it was held that once it is proved that it is the accused who sold the adulterated article, he is liable to be convicted under section 16 (1) read with section 7 of the Prevention, of Food Adulteration Act. By the evidence adduced by the prosecution the guilt of the respondent has been fully established and he is liable to be punished for selling the biscuits in question which were found to be adulterated. Accordingly the appeal is allowed and the acquittal of the respondent is set aside and he is convicted of the offence punishable under section 16 (1) read with section 7 of the Prevention of Food Adulteration Act and sentenced to pay a fine of Rs. 100 (Rupees one hundred only) and in default to undergo rigorous imprisonment for a period of one month. Appeal allowed.