# Bata Shoe Co. (P) Ltd v. Ganguly

- **Citation:** [1961] 3 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 1959-07-21
- **Case number:** Criminal Appeal No. 147 of 1959
- **Bench:** J. L. Kapur, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bata-shoe-co-p-ltd-v-ganguly-1996
- **Pages:** 6

## Headnote

Food Adulteration-Sale of adulterated oil by servant-Servant,
whether liable-Mens rea, if necessary-Second offence-Sentence,
lesser than minimum prescribed when can be given-Prevention of
Food Adulteration Act, I954 (37 of I954) ss. 7, r6.
The appellant was an employee of one T, a vendor of edible
oils. He was found to have sold adulterated mustard oil and
he and T were prosecuted for an offence under s. 7 read with
s. r6 of the Prevention of Food Adulteration Act, 1954. Both
were found guilty; Twas sentenced to pay a fine of Rs. zoo, but
in view of a previous conviction the appellant was sentenced to
one year's rigorous imprisonment and Rs. 2,000 fine, the minimum prescribed bys. r6(ii). The appellant contended: (i) that
a servant who sold food on behalf of his employer was not liable
unless it was known that he had done so with the knowledge
that the food was adulterated, and (ii) that there were special
and adequate reasons justifying the imposition of a penalty less
than the minimum prescribed for a second offence.
Held, that s. 7 of the Act enjoins everyone, whether an
employer or a servant, not to sell adulterated food, and anyone
who contravenes this provision is punishable under s. 16 ¥.•ithout proof of mens rea.
3 S.C.R. SUPREME COURT REPORTS
325
Re: S. Moses, I. L. R. (1959) Mad. 418, disapproved.
Held, further, that the facts that the appellant was a mere
employee of T, that it had not been sho\Vn that he had made
any profit for himself, and that T had been sentenced to a fine
of Rs. 200 only, were special and adequate reasons within the
meaning of the proviso to s. r6(ii) to justify the imposition of a
penalty less than the minimum prescribed by s. t6(ii).

## Text

Bata Shoe
Co. (P) Ltd,
v.
Ganguly
Wanchoo J.
1960
December I6,
324
SUPREME COURT REPORTS
[1961]
are concerned, namely, Jagdish Lal (respondent 31),
L. Choudhary (respondent 60), Mohd. Mansoor (respondent 6), Ram Kuber Das (respondent 9), Rama.sis (respondent 15), Mohd. Zafir (respondent 19), Mohd. Islam
(respondent 20), Mohd. Zafir (respondent 22), Rajeshwar Prasad (respondent 26 ), Chirkut (respondent 27),
Lal Das (respondent 43),.Inderdip (respondent 47) and
Mohd. Nazir (respondent 58) and confirm the order of
the tribunal with respect to them. In the circumstances the parties will bear their own costs of this
Court.
Appeal partly allowed.
SARJOO PR.ASAD
v.
THE STATE OF UTTAR PRADESH
(J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH JJ.)
Food Adulteration-Sale of adulterated oil by servant-Servant,
whether liable-Mens rea, if necessary-Second offence-Sentence,
lesser than minimum prescribed when can be given-Prevention of
Food Adulteration Act, I954 (37 of I954) ss. 7, r6.
The appellant was an employee of one T, a vendor of edible
oils. He was found to have sold adulterated mustard oil and
he and T were prosecuted for an offence under s. 7 read with
s. r6 of the Prevention of Food Adulteration Act, 1954. Both
were found guilty; Twas sentenced to pay a fine of Rs. zoo, but
in view of a previous conviction the appellant was sentenced to
one year's rigorous imprisonment and Rs. 2,000 fine, the minimum prescribed bys. r6(ii). The appellant contended: (i) that
a servant who sold food on behalf of his employer was not liable
unless it was known that he had done so with the knowledge
that the food was adulterated, and (ii) that there were special
and adequate reasons justifying the imposition of a penalty less
than the minimum prescribed for a second offence.
Held, that s. 7 of the Act enjoins everyone, whether an
employer or a servant, not to sell adulterated food, and anyone
who contravenes this provision is punishable under s. 16 ¥.•ithout proof of mens rea.
3 S.C.R. SUPREME COURT REPORTS
325
Re: S. Moses, I. L. R. (1959) Mad. 418, disapproved.
Held, further, that the facts that the appellant was a mere
employee of T, that it had not been sho\Vn that he had made
any profit for himself, and that T had been sentenced to a fine
of Rs. 200 only, were special and adequate reasons within the
meaning of the proviso to s. r6(ii) to justify the imposition of a
penalty less than the minimum prescribed by s. t6(ii).
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 147 of 1959.
Appeal by special leave from the judgment and
order dated July 21, 1959 of the Allahabad High
Court in Criminal Revision No. 503 of 1958 arising
out of the judgment and order dated March 27, 1958,
of the Sessions ,J ndge, Allahabad, in Criminal Appeal
No. 745 of 1957.
C. B. Agarwala and K . .P. Gupta, for the appellant.
G. C. Mathur and C . .P. Lal, for the respondent.
1960. December 16. The Judgment of the Court
was delivered by
SHAH, J.-The appellant, SarjooPrasad was convicted by P. M. Aga, Magistrate First Class, Allahabad
of an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration. Act, 1954 (37 of 1954 )-
hereinafter referred to as the Act-and in view of a
previous conviction for a similar offence was sentenced
to suffer rigorous imprisonment for one year and to
pay a fine of Rs. 2,000. The conviction and sentence
were confirmed in appeal by the Court of Session at
Allahabad and by the High Court of Judicature at
Allahabad in .revision. The appellant has appealed
to this court with special leave under Art. 136 of the
Cons ti tu ti on.
·
The appellant was an employee of.one Thakur Din
who carries on business at 92-C, Mirganj, Allahabad
as a vendor of edible oils and provisions. On September 22, 1956, a Foc·:l Inspector of the Allahabad Munir:ipality purcha&ed from the appellant a sample of
mustard oil exposed for sale in the shop which on
a11alysis was found to be adulterated with linseed oil.
Thakur Din and the appellant were prosecuted in the
court of the First Class Magistrate, Allahab:i.d for
Sarjoo Prasad.
v.
The Stale of
Uttar Pradesh
Shah ].
Sarjoo Prasad
v.
1'he Stale of
l/tlar Prad~slt
Shah ].
326
SUPREME COURT REPORTS
[1961]
selling adulterated food.·
The Magistrate convicted
Thakur Din and the appellant and sentenced Thakur
Din to pay a fine of Rs. 200 and the appellant to
suffer rigorous imprisonment for one year and to pay
a fine of Rs. 2,000.
The expression "sale" is defined by s. 2(xiii) in the
Act as meaning 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. The definition
includes not only actual sale but agreement for sale,
offer for sale, exposure for sale and even possession of
articles for sale and attempt to sell. The appellant
was in charge of the shop at the time when mustard
oil was sold to the Food Inspector. Mustard oil was
exposed for sale and it was in the possession of the
appellant and he actually sold it. But counsel for the
appellant contends that by s. 7 of the Act, the owner of
a shop alone is prohibited from selling adulterated food,
and a servant employed in the shop who sells food on
behalf of the employer is not a "person" against
whom the prohibition operates. Counsel says that an
employee in a shop who with knowledge that an article of food· is adulterated, sells it is guilty of aiding
and abetting his employer, but without such knowledge he is not liable to be punished for contravening
the provisions of the Act.
Section 7 of the Act in so far as it is material provides:
"No person shall himself or by any person on his
behalf ............... sell ........ .
(i) any adulterated food;
"
...............................................................
•
The material part of s. 16( 1) provides:
'-
"If any person,
(a) whether by himelf or by any person on his
behalf ............ sells ............ any article of food in
contravention of the provisions of this Act ..... .
or
3 S.C.R. SUPREME COURT REPORTS
327
..................................................................
he shall, ............... , be punishable .......... "
That the mustard oil sold by the appellant was
adulterated has not been challenged in this appeal.
The appellant's plea that the mustard oil delivered to
the Food Inspector was not meant for sale was disbelieved by the Trial Magistrate and that view has
been confirmed by the Court of Session and the High
Court. The expression "person" has not been defined
in the Act and in the context in which that expression
occurs, it prima facie includes every one who sell
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 and infringement of the prohibition. is by s. 16 penalised. By s. 19 in a prosecution for an offence pertaining to the sale of any
adulterated article of food, it is no defence merely
to allege that the vendor was ignorant of t.he nature
of the substance or quality of the food sold by him.
Such a defence can only succeed if the person charged
with selling adulterated food proves that the article of
food was purchased as of the same in nature, substance and quality as that demanded by the purchaser
with a written warranty in the prescribed form, that
he had no reasons to believe at the time when he sold
it that the food was not of such nature, substance,
and quality and that he sold it in the same state as he
purchased it, and he submits to the food inspector or
the local authority a copy of the warranty with a
written notice that he intends to rely upon it and specifies the name and address of the person from whom
he received it. Prohibition of sale of adulterated
food is evidently imposed in the larger interest of
maintenance of public health. The prohibiti<Jn applies to all persons who sell adulterated food, and for
contravention of the prohibition all such persons are
penalised.
Because the Legislature has sought to
penalise a person who sells adulterated food by his
agent, it cannot be assumed that it was intended to
Sarjoo Prasad
v.
The State of
Uttar Pt'adesh
Shah j.
Sarjoo Prasad
v.
The State of
Ullar Pradesh
Shah].
328
SUPREME COURT REPORTS
(1961)
penalise only those who may act through their agents.
If the owner of a shop in which adulterated food is
sold is without proof of mens rea liable to be punished
for sale of adulterated food, we fail to appreciate why
an agent or a servant of the owner is not liable to be
punished for contravention of the same provision
unless he is shown to have guilty knowledge.
The argument that the Legislature could not have
intended having regard to the fact that a large majority of servants in shops which deal in food are illiterate to penalise servants who are not aware of the true
nature of the article sold has in our judgment no force.
The intention of the Legislature must be gathered
from the words used in the statute and not by any
assumptions about the capacity of the offenders to
appreciate the gravity of the acts done by them.
There is also no warrant for the assumption that the
servants employed in shops dealing in food stuff are
generally illiterate.
The Legislature has, in the interest of the public
health, enacted the Act and has provided that all
persons are prohibited from selling adulterated food.
In the absence of any provision, express or necessarily
implied from the context, the courts will not be justified in holding that the prohibition was only to apply
to the owner of the shop and not to the agent of the
owner who sells adulterated food. The view Gaken to
the contrary by the Madr.as High Court in Re
S. Moses (1) is, in our judgment, erroneous.
There is no substance in the contention that the
conviction of the appellant was not for a second
offence committed by him under the Prevention of
Food Adulteration Act.
The prosecutor produced
before the court an extract dated April 7, 1956 of a
judgment in crir.:iinal case No. 208 of 1956 which
showed that one "Sarjoo Prasad" had been convicteu
by P. N. Jaulrnri, Magistrate F-Class, Allahabad of the
offence of adulteration of mustard oil and sentenced to
pay a fine of Rs. 80. In the view of the Magistrate,
the extract related to the appellant. The name of
the person convicted and his father's name and residence were identical with the name of the appellant,
(1) I.LR. (1959) Mad. 418.
.
i~-
,
· 3 S.C.R. SUPREME COURT REPORTS
329
his father's name and his residence. All the details
given in the extract tallied with the description of the
appellant. In the memorandum of appeal filed to
the Court of Session challenging the conviction recorded by the Magistrate First Class, it was not contended that the person convicted in the earlier case was
some person other than the appellant. ·
But the appellant was merely an employee of
Thakur Din. It is not shown that he made himself
any profit out of the transaction. Thakur Din has
been sentenced to pay a fine of Rs. 200 only. The
offence committed by the appellant is a repetition of
a similar offence committed QY him a few months
earlier, but we think that having regard to all the
circumstances, this is a case in which there are special
and adequate reasons which would justify imposition
of a penalty less than the minimum prescribed by
s. 16(ii) of the Act. We reduce the sentence to imprisonment to three months and we remit the fine. Subject to this modification, the appeal is dismissed.
Appeal dismissed.
ORIENTAL METAL PRESSING WORKS (P.)
LTD.
v.
BHASKAR KASHINATH THAKOOR &
ANOTHER
...,.
(JAFER IMAM, A. K. SARKAR and
RAGHUBAR DAYAL, JJ.)
Company-Managing director appointing his successor by will
-Validity -
'Assignment', Meaning of-Companies Act, z956
(I of z956), ss. 3z2, 255.
By s. 3r2 of the Companies Act, 1956, "Any assignment of
his office made after the commencement of this Act by any director of a company shall be void."
••
Sarjoo P1asad
v.
The Stale of
Uttar Pradesh
Shah J.
x960
Dei:ember z6.