STATE OF PUNJAB Vs. SATPAL

JUDGEMENT

(1.) ON October 27, 1978, Dr. Ramesh Chand Gupta accompanied by Dr.D.R.Gupta visited the premises of M/s.Singla Sweets, Lahori Gate,Patiala. Ram Gopal was present at the shop. He was having in his possession about 6 kgs. of Barfi for sale. Dr. Ramesh Chand Gupta disclosed his identity as Food Inspector and purchased 1.5 kgs. of barfi vide Receipt Exhibit PB. The barfi so purchased was mixed thoroughly and made homogeneous. It was put into three dry and clean polythene bags in equal parts and the packets were duly sealed after formaline was added. One packet was sent to the Public Analyst while the other two were deposited with the Local health Authority. The Public Analyst vide his report Exhibit PD opined that the contents of the sample contained a non-permitted red basic coal tar dye. On receipt of this report a complaint was filed against Ram Gopal in the Court of Shri K. K. Garg, Judicial Magistrate Ist Class, Patiala for his trial for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. Ram Gopal was summoned and warrants were issued but he could not be traced. He was declared a proclaimed offender. On April 23, 1980 Dr. Ramesh Chand Gupta moved an application that the sample was taken from M/s Singla Sweets, Lahori Gate, Patiala and so M/s Singla Sweets be summoned to stand trial. Notice was issued accordingly and Satpal respondent appeared on behalf of M/s Singla Sweets.

(2.) THE respondent in his statement under Section 313 of the Code of Criminal Procedure stated that no person named Ram Gopal worked as a partner or an employee of the firm M/s Singla Sweets nor any sample of barfi was taken from the shop. He further contended that he did not take any part in the conduct of the business of the firm nor he was responsible for the business carried on under the name of M/s Singla Sweets.

(3.) IT was argued on behalf of the appellant that Satpal respondent was the proprietor of M/s Singla Sweets, Lahori Gate, Patiala and as such he was liable for the offence. The very fact that Satpal appeared on behalf of M/s. Singla Sweets rendered him liable under Section 17 (11) of the Prevention of Food Adulteration Act. Where no person has been nominated to be incharge of and responsible to the company for the conduct of its business, then every person who at the time of commission of offence was the incharge and responsible for the conduct of the business of the company could be prosecuted for the commission of offence under the Act, Satpal respondent could not escape liability on the ground that he was not incharge of the affairs of the company. The argument of the learned counsel is not tenable as there is absolutely no evidence on record to show that Satpal was incharge or was responsible for the conduct of the business of the firm. Sections 16 and 17 of the Act lay the onus on the prosecution to prove that the proprietors of the company were incharge and responsible for the conduct of the business of the company. Unless this initial onus is discharged there is no onus upon the respondent to prove that the offence was committed without his knowledge. In the instant case, when the premises were checked Satpal was not present and the sample was alleged to have been purchased from one Ram Gopal. Ram Gopal was neither proved to be an employee nor a partner of the firm. In fact, he was not traced when the prosecution was launched. Then Satpal appeared on behalf of M/s Singla Sweets but he too was not shown to be incharge of the affairs of the firm. Dr. Ramesh Chand Gupta who took the sample stated that Ram Gopal told him that he was the partner of the firm and that is why Ram Gopal was named as an accused, without making any enquiry whether he was responsible for the conduct of the business. He admitted that till the day he appeared in the witness box he was not aware as to who was responsible for the conduct of the business. The other witness Dr. D. R. Gupta seems to be not present when the sample was taken. According to him Ram Gopal represented himself as a proprietor of the shop and he did not disclose that the shop was a partnership concern or any other person was running the business alongwith him. In fact, on that day two teams of doctors were checking food articles he was supervising both the teams. The fact that he was unable to tell as to in what manner the sample was purchased and placed in- polythene bags rendered his presence at the premises of the respondent highly doubtful. As per the statement of Dr. Ramesh Chand Gupta, 1.5 kgs. of barfi was purchased which was mixed and made hemoglobin and then was put into the bags while Dr. D. R. Gupta stated that 500 gms of barfi was purchased thrice and every time it was made homogeneous and put in a Polythene bag. In these circumstances, there was hardly any evidence to show that the business of the firm was being done by Satpal respondent and he was responsible for the conduct of the same. The case Bhagwan Dass and others v. State of Haryana, 1980(2), Prevention of Food Adulteration Cases 154, is an authority applicable to the facts of the present case.