R CHANDRA Vs. BHAGABATI SHAW

JUDGEMENT

(1.) UPON a complaint by the petitioner, Food Inspector, with the written consent of the Health Officer, corporation of Calcutta, the two opposite parties, the proprietors of a shop located at 38, Bentink Street and another their Salesman in the shop, were summoned under section 16 (1) (a) (i) read with section 7 of the Prevention of Food Adulteration Act, 1954, to be hereinafter called 'the Act' for storing and or selling adulterated food. All the three accused, so summoned, appeared before the trying Magistrate. They filed a joint petition to slate that they would plead guilty to the charge which may be framed on the evidence of the Food Inspector alone. The complainant examined the Food inspector who proved several documents exts. 1 to 7. The three accused cross-examined the Food Inspector. The learned Magistrate thereafter considered the evidence so given and was satisfied on it that a charge under section 16 read with section 7 of the Act should be framed. He framed charge only against the salesman accused. He explained the charge, so framed, to him and the said accused pleaded guilty. Accepting his plea the learned Magistrate had convicted and sentenced him. By the same order the learned Magistrate had, however, discharged the two accused. opposite parties under section 253 (2) of the Code of Criminal Procedure holding the charge to be groundless as against them. His order discharging the two opposite parties under section 253 (2) of the Code is challenged in this Rule.

(2.) A person who himself or by any person on his behalf stores or sells any adulterated food, is liable to be punished under section 16 read with section 7 of the Act. The learned Magistrate in discharging the two opposite parties held as follows :

(3.) A 'company' as stated in the Explanation to section 17 of the Act means a body corporate and includes a firm or other "association of individuals". The expression "association of individuals" is not a term of art. A group of persons doing an act may or may not form an association. An association of individuals can be formed only when two or more individuals voluntarily "combine" together for a certain purpose. Volition on the part of the members of the association is the essential ingredient. The mere fact that two or more persons own one or more shops jointly and take the profit or bear the loss of the business run in the shop does not by itself indicate that they act as an association of individuals. What transpired from the evidence given before the learned magistrate is that the two opposite parties are two owners of the shop. That does not by itself go to show that they act as an association of individuals. The learned Magistrate fell into error when he concluded that a business run by more than two persons is an association of those persons and is a 'company' within the meaning of the term in the Explanation to section 17 of the act. These two opposite parties as individuals are running the shop. They are therefore, liable to be tried and punished for an offence, if any, under section 16 read with section 7 of the act. In this view of the matter, the learned Magistrate's order discharging the two opposite parties has been wrong.