MUNICIPALITY JAMMU Vs. KRISHEN CHAND

JUDGEMENT

(1.) THIS is an appeal by the complainant, Municipality Jammu, by way of special leave under Section 417 (2) of the Criminal Procedure Code against an order of the Sessions Judge, Jammu dated 10-4-70 acquitting the accused respondent of the charge under Sections 7/16 of the Jammu and Kashmir Prevention of Food Adulteration Act, 1958 (hereinafter referred to as the Act ). The prosecution case was that P. W. Dharam Pal, Food Inspector, visited the shop of the accused, Krishan Chand who runs a grocer's shop at Kanak Mandi, Jammu and bought a sample of Desi Ghee, and paid the price thereof. The complainant Food Inspector then prepared three samples, one of which was given to the accused, the other sent to the Public Analyst and the third was retained by the Food Inspector. The report of the Public Analyst, Mr. Kaul, shows that the Ghee sold to the Food Inspector by the respondent was adulterated. The report of the Public Analyst is Ex. P. E. A complaint was lodged by the Food Inspector on 28-9-68 on the basis of which the present prosecution started against the respondent. The prosecution examined a number of witnesses to prove its case. The defence also examined some witnesses. The learned trial Court of the Municipal Magistrate Jammu after recording the evidence and the statement of the accused and hearing the arguments came to the conclusion that the prosecution case had been proved beyond reasonable doubt and he accordingly convicted the respondent under Sections 7/16 of the Act and sentenced him to a fine of Rs. 500/ -. The learned Magistrate further ordered that the seized tin of Ghee be destroyed after the period of appeal was over. The accused respondent then went up in appeal to the Sessions Judge who reversed the judgment of the learned Magistrate and acquitted the accused mainly on the ground that the accused was not a dealer and there was no legal evidence to show that he had offered the sample of Ghee for sale. Hence this appeal before us.

(2.) MR. Nanda appearing for the appellant raised two points before us. In the first place he submitted that the learned Sessions Judge had gone wrong in holding that there was no sale as contemplated by the provisions of the Act. Secondly it was argued that even if the respondent, Krishan Chand, was not a dealer, that by itself could not exonerate him of the charge when it was proved that he had sold the sample of Ghee to the Food Inspector, because the definition of the word 'sale' occurring in Section 2 Clause (xiii) includes even a sale for the purpose of analysis. The order of the learned Sessions Judge was, however, stoutly supported by Mr. Sethi who has advanced a number of contentions before us in order to uphold the acquittal of the accused. After hearing counsel for the parties, we are clearly of the opinion that the learned Sessions Judge has committed a serious error of law in acquitting the accused by misapplying and misinterpreting the provisions of the Act. It is not disputed that the accused Krishan Chand had sold the sample of Ghee to the Food Inspector, Dharam Pal. This fact is proved by the evidence of Dharam Pal as also by the receipt Ex. P. A. which was given by the accused himself. The report of the Public Analyst clearly shows that the Ghee sold by Krishan Chand. to Dharam Pal was adulterated. The question as to whether or not the accused Krishan Chand was a dealer was not at all germane for the decision of the present case, and the learned Sessions Judge was wrong in making this as one of the main grounds for acquitting the accused. The matter was considered by the Supreme Court at length in the Food Inspector, Calicut v. Gopalan wherein their Lordships observed as follows: A reference to the definition of 'sale' will also show that a sale of any article of food for analysis comes within that definition. It was also observed that once a person effects a sale as defined under the provisions of the Act he comes within the mischief of the Act, and the fact that he is not a regular dealer in the article concerned is totally irrelevant. In this connexion their Lordships observed as follows: Mr. Mehta, learned Counsel for the respondents relied on Sections 12 and 14 to support his argument that the Act contemplates that the person from whom an article of food is purchased must be a dealer of that article as such and if that article is found to be adulterated, a person can be found guilty under the Act. If article A is stored for the purpose of being used in the preparation of other articles of food, the fact that article A purchased by the Food Inspector is found to be adulterated will not make the person selling that article liable under the Act. Section 12 gives a right to any purchaser, other than the Food Inspector to have the article purchased by him analysed by the Public Analyst in accordance with that section. Section 14 makes it mandatory on a manufacturer, distributor or dealer of any article of food to give a warranty when he sells an article about the nature and quality of that article to the vendor. We are not able to find how these two secions support the propositions enunciated by Mr. Mehta. If a third party had purchased sugar from the tea stall of the accused and if the said purchase constitutes a 'sale' under the Act, Section 12 gives such a party (right) to have the article analysed by a Public Analyst. Similarly Section 14 is also of no assistance to the respondents. xx xx We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions. The provisions of the State Act are almost similar to that of the Indian Act which has since been applied to the State. It would be relevant to note here that the definition of the word 'sale' in Section 2 (xiii) is wide enough to include a person who may not be a regular dealer. The definition of the word sale runs thus: Municipality Jammu vs. Krishen Chand (05. 03. 1974 -JKHC) Page 4 of 7 pality Jammu vs. Krishen Chand (05. 03. 1974 -JKHC) Page 4 of 7 'sale' with its grammatical variations and cognate expressions means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article. It is therefore manifest that in order to effect a sale all that is required is that the accused must have sold any article of food, even for the purpose of analysis. In the instant case it is not disputed, in fact it has been proved by abundant evidence that the accused Krishan Chand had sold a sample of Ghee to the Food Inspector, Dharam Pal for the purpose of analysis. After analysis the food was found to be adulterated. Thus all the ingredients of an offence under Sections 7 (i)/16 of the Act have been fulfilled in this case and for this reason therefore the learned Sessions Judge had no justification to hold that the accused was innocent or that the charge was not proved against him. The defence no doubt examined some witnesses to prove that the respondent was not a dealer in the sale of Ghee, but that we have already said is totally irrelevant to the offence with which the accused was charged.

(3.) MR. Sethi appearing for the respondent raised two important contentions before us. In the first place he submitted that it would appear from the complaint as also from the evidence of the Food Inspector, that what the Food Inspector demanded from the accused was not Ghee but Desi Ghee which according to the learned Counsel was quite different from Ghee as understood in the sense of being pure Ghee. It was further argued that even the Public Analyst described the sample sent to him as being that of Ghee. In our opinion there is absolutely no substance in this argument. The word 'desi Ghee' in common parlance is meant to indicate pure Ghee. There can be no doubt that the accused fully understood what the Food Inspector demanded from him, because in Ex. P-A the accused has clearly written that he had sold Ghee to the Food Inspector. In these circumstances there was no ambiguity at all on the question of the nature of the article sought to be sold by the accused to the Food Inspector. Furthermore in his statement under Section 342, Criminal Procedure Code the accused has reiterated that he had sold Ghee to the Food Inspector; he never took the defence at any time or at any stage that what he sold to the Food Inspector was not Ghee but Desi Ghee which was different from Ghee. In these circumstances it seems to us that the argument raised by the learned Counsel is clearly an afterthought and does not merit consideration.