# KISAN TRIMBAK KOTHULA & ORS v. STATE OF MAHARASIITRA

- **Citation:** [1977] 2 S.C.R. 102
- **Court:** Supreme Court of India
- **Decided:** 1976-11-17
- **Case number:** Criminal Appeal No. 388 of 1976
- **Bench:** P. N. Bhagwati, V. R. Krishna Iyer, S. M. FAZAL Au
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kisan-trimbak-kothula-ors-v-state-of-maharasiitra-7002
- **Pages:** 9

## Headnote

Preve/l/io11 of Food Ad11lterafion Act (37 of 1954) Ss. 2(i)(l),
2(ix)
(c> and (k), l6(l)(a)(i) antlits first proviso ands. 17(1) and (2)-Scope of.
c
D
E
F
G
H
Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954, provides inter a/ia that, ,if any person whether by himself or by another person on
his behalf stores or sells any article of food, which is adulterated or misbranded,
he shall, in addition to the penalty he may be liable under s. 6, be punishable
which imprisonment for a term which shall not be less than 6 months, etc.
The first proviso to the sub-section provides that if the offence is under subclause (i) of clause (a) and is with respect to an article of food which is adulterated under s. 2(i)(l) or misbranded under s. 2(ix)(k), the Court may, for
any adequate and special reasons, impose a sentence of imprisonment for a term
less than 6 months. Section 17 ( 1) provides tha~ where an offence under the Act
has been committed by a firm every person who at the time the offence was
committed was incharge of or responsible for the conduct of the business of
the firm shall be deemed to be guilty of the offence. The proviso to the subsection states that nothing contained in the sub-section shall render any such
person liable to any punishment if he proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent its commission.
Under s. 17(2) notwithstanding anything contained in sub-s.
(1)
where an offence under the Act has been committed by a firm and
it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner
shall be deemed to be guilty of the offence.
In the present case accnsed 2 and 3 were partners carrying on .tle.e business
of a small restaurant (accused 1). The Food Inspector visited the restaurant
and noticing some milk kept for sale enquired about its quality. Accused 3 told
him that it was cow's milk. The 2nd accused was then nol present in the restaurant. The Food Inspector then bought some of iho millr. from the 3rd
accused and 'sent it to the Public Analyst after complying with the statutory
formalities. The Public Analyst reported that the milk was buffalo's milk, that
there was deficiency of fat and that the milk contained added water. The three
accused were charged with the offence punishable under s. 7 (i) and (ii) and
s. 16(1A)(ii).
They pleaded guilty and were sentenced to pay a frne.
On
appeal by the State, the High Court, holding tha.t the accused cannot invoke
the proviso to s. 16(l)(a)(i) enhanced the sentence .on the 2nd and 3rd
accused to the minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court,
HELD : ( 1) The Probation of Offenders Act is not applicabla to the accused
in the circumstances of the case.
[109 G]
(2) Addition of water amounts to adulteration within the meaning of s. 2
(i)(b)(c) or (d). [108 El
(3) To earn the eligibility to the benefit of the proviso to s. 16(1 )(a )(i)
the accused must establish not only that his case falls positively
under
the
offences specified in the said provi~o, but negatively, that _his. acts do not attr'!-ct
any of the 11011-proviso offences m s. 16(1). The apphcat10n of the proviso
depends on whether the adulterati<?n or misbran~ing of the .art~c!e is of the
species exclusively covered by s: 2 (1)(1) ?r ~· 2 ( 1x )(k): In. 1ud1c1a\ construction the consumers' understanding of legislative express10ns 1s relevant and so
vie~ed 'Cow's milk' is different from 'buffalo's milk'. The misbranding therefore
falls u~der s. 2(ix) (c) which provides .that an article shall be d~emed to be
mlsbnnded if it is sold by a name which belongs to another article of food,
KISAN TRIMBAK v. MAHARASHTRA (Krishna Iyer, !.)
103
and doeii not fall under s. 2(ix)(k). Therefore, the exclusion of the first proA
viso and the conviction of all the accused under s. 16(1) (a) are justified. [106 C;
107C; 109D]
M

## Text

102
A
KISAN TRIMBAK KOTHULA & ORS:
v.
STATE OF MAHARASIITRA
November 17, 1976
B
[P. N. BHAGWATI, V. R. KRISHNA IYER AND S. M. FAZAL Au, JJ.]
Preve/l/io11 of Food Ad11lterafion Act (37 of 1954) Ss. 2(i)(l),
2(ix)
(c> and (k), l6(l)(a)(i) antlits first proviso ands. 17(1) and (2)-Scope of.
c
D
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Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954, provides inter a/ia that, ,if any person whether by himself or by another person on
his behalf stores or sells any article of food, which is adulterated or misbranded,
he shall, in addition to the penalty he may be liable under s. 6, be punishable
which imprisonment for a term which shall not be less than 6 months, etc.
The first proviso to the sub-section provides that if the offence is under subclause (i) of clause (a) and is with respect to an article of food which is adulterated under s. 2(i)(l) or misbranded under s. 2(ix)(k), the Court may, for
any adequate and special reasons, impose a sentence of imprisonment for a term
less than 6 months. Section 17 ( 1) provides tha~ where an offence under the Act
has been committed by a firm every person who at the time the offence was
committed was incharge of or responsible for the conduct of the business of
the firm shall be deemed to be guilty of the offence. The proviso to the subsection states that nothing contained in the sub-section shall render any such
person liable to any punishment if he proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent its commission.
Under s. 17(2) notwithstanding anything contained in sub-s.
(1)
where an offence under the Act has been committed by a firm and
it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner
shall be deemed to be guilty of the offence.
In the present case accnsed 2 and 3 were partners carrying on .tle.e business
of a small restaurant (accused 1). The Food Inspector visited the restaurant
and noticing some milk kept for sale enquired about its quality. Accused 3 told
him that it was cow's milk. The 2nd accused was then nol present in the restaurant. The Food Inspector then bought some of iho millr. from the 3rd
accused and 'sent it to the Public Analyst after complying with the statutory
formalities. The Public Analyst reported that the milk was buffalo's milk, that
there was deficiency of fat and that the milk contained added water. The three
accused were charged with the offence punishable under s. 7 (i) and (ii) and
s. 16(1A)(ii).
They pleaded guilty and were sentenced to pay a frne.
On
appeal by the State, the High Court, holding tha.t the accused cannot invoke
the proviso to s. 16(l)(a)(i) enhanced the sentence .on the 2nd and 3rd
accused to the minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court,
HELD : ( 1) The Probation of Offenders Act is not applicabla to the accused
in the circumstances of the case.
[109 G]
(2) Addition of water amounts to adulteration within the meaning of s. 2
(i)(b)(c) or (d). [108 El
(3) To earn the eligibility to the benefit of the proviso to s. 16(1 )(a )(i)
the accused must establish not only that his case falls positively
under
the
offences specified in the said provi~o, but negatively, that _his. acts do not attr'!-ct
any of the 11011-proviso offences m s. 16(1). The apphcat10n of the proviso
depends on whether the adulterati<?n or misbran~ing of the .art~c!e is of the
species exclusively covered by s: 2 (1)(1) ?r ~· 2 ( 1x )(k): In. 1ud1c1a\ construction the consumers' understanding of legislative express10ns 1s relevant and so
vie~ed 'Cow's milk' is different from 'buffalo's milk'. The misbranding therefore
falls u~der s. 2(ix) (c) which provides .that an article shall be d~emed to be
mlsbnnded if it is sold by a name which belongs to another article of food,
KISAN TRIMBAK v. MAHARASHTRA (Krishna Iyer, !.)
103
and doeii not fall under s. 2(ix)(k). Therefore, the exclusion of the first proA
viso and the conviction of all the accused under s. 16(1) (a) are justified. [106 C;
107C; 109D]
Murlidhar v. State of Maharashtra [1976] 3 SCC 684 and Prem Ballabh v.
State (Delhi Admn.) 0-iminal Appeal No. 287 of 1971 decided on 15-9-76,
,followed.
( 4) The. 2nd accused however is not guilty of selling the misbranded article.
The liability of a partner depends on the application of s. 17 (1) or (2). Section
17 (2) is not applicable to the absent 2nd accused as there is no evidence to
prove the required mens rea se~ out in the sub-section. Though s. 17(1) applies,
the second accused would not be guilty of this charge because of the proviso
to that sub-section.
The evidence shows tbat the second accused was absent
at the time of the sale, that the milk was bought from the bazar by the servant
in the restaurant and that it was· not as if the two accused were palming
off
buffalo's milk and Cow's milk, but the particular representation by the
3rd
accused was an adventitious one, made by him on hfa own on the spot.
[109
E-F; 110' BJ
[The Public Analysts report should not be prefunctory giving a few mechanical data. It should help the Court with something more of the process by
which his conclusion bas been arrived at].
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 388
of 1976.
B
c
Appeal by Special Leave from the Judgment and Order dated the
D
26th & 27th July, 1976 of the Bombay High Court in Criminal Appeal
No. 930/74.
Gobind Das, A. K. Mathur and A. K. Sharma for the Appellant.
M. N. Shroff for Respondent.
M. C. Bhandare, (Mrs.) Sunanda Bhandare, M. S. Narasimlw11,
K. C. Sharma and H. R. Khann.a for both thei parties.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-This criminal appeal, by special leave, raises
a few questions of law under the Prevention of Food Adulteration
Act, 1954 (Act XXXVII of 1954) (for short, the Act), ingeniously
urged by the appellants, a firm and its two partners, altl}ough the plea
of 'guilty' entered by the appellants before the trial court-possibly
as part of a 'plea bargaining' which misfired at the appellate levelmakes short shrift of the exculpatory and extenuatory arguments urged
by his counsel before us.
At the end of the weary forensic exercise
we gathered what should have been told us first viz., that when the
three accused were examined and charges read out they pleaded guilty,
which would have abbreviated the hearing here had we known it earlier.
We proceed on the footing that the facts set out in the charge
are true, that being the net price of a plea of guilt.
At this stage, the particulars and the setting of the prosecution facts
need to be narrated.
On October 2, 1973 the Food Inspector
of
Nasik visited the small restaurant of the first accused finn at about
8.30 a.m., found a few litres of milk kept for sale and enquired about .
the quality of the milk. He was told by accused No. 3 (a partner of
the business, the other partner being his brother, accused No. 2) that
it was cow's milk. Thereupon, he bought 660 mis of such milk from
accused No. 3. The statutory formalities under the Act were complied
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104
SUPREME COURT RE.POil IS
l 1977] 2 S..C.R.
A
with and one of the three sealed bottles was sent to the public Analyst
from whom the report was received that (a) the milk was not cow's
but buffalo's milk; (b) the fat deficiency was 16.3% and the milk
contained 17.8% of added water.
A prosecution ensued, the Food
Inspector was examined and cross-examined and a charge was framed
after the accused were questioned and their written statements filed
into Court.
The charge read :
B
"That you (accused nos. 1, 2 & 3) on or about the 2nd
day of October 1973 at 8.30 a.m., at Nasik stored for sale
adulterated buffalo milk with 16.3 % of fat deficiency and
17 .8 % added water and also misbranded it as cow milk,
and thereby committed an offence punishable under section
7 (i)(ii) and 16(i) (A) (ii) Prevention of Food AdulteraC
tion Act within my cognisance,"
D
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This charge elicited a plea of 'guilty' from all the three accused. Of
course, each added that he did not sell 'raw milk' and that the two
brothers jointly ran the shop as a firm, that the said business was a
small one where tea, milk and other articles were supplied, that the
whole family, fifteen strong, lived on the paltry profits from the petty
restaurant and so a lenient view be taken on sentence. They further
pleaded, in extenuation, that their servant purchased the milk from the
bazar, reported that it was cow's milk and that it was on that basis
that the accused told the Food Inspector that what was being sold
was cow's milk. The trial Court, acting on the plea of guHt, convicted
all the accused but viewed the offence as a somewhat venial deviation
where the adulteration, being only of water, 'was not injurious
to
human health'!
After adverting to a prior conviction of A-3 for a
food offence, the Magistrate mercifully declined to apply the Probation of Offenders Act! The Magistrate observed in conclusion : 'It is
necessary to give accused nos. 2 and 3 one more chance to improve
themselves and do honest business'.
The firm, accused no. 1, was
punished with fine, accused nos. 2 and 3, the partners, also were
punished under s. 7(1)(ii) read with s. 16(1) (e)(l) of the Act,
each being sentenced to a fine of Rs. 500/-.
Even here, we may
permit ourselves the stern remark that there is pathos and bathos in
this manner of magisterial indulgence when society
is
the
victim
and the stakes are human health and. perhaps, many lives ! It mu.st
be remembered that the mandate of humanist jurisprudence is sometime~ harsh.
The State appealed for .enhancement of the sentence and the High
Court acceded and quashed the trial Court's sentence in allowance of
the appeal and enhanced the punishment to six months' imprisonment
plus fine of Rs. 500/- each, the firm itself ( A-1) being awarded a
fine only.
The basic factor which led to enhancement of the sentence by the
High Court was that, in the High Court's view, the benfit of proviso
(1) to s. 16(1) stood repelled, and so the minimum sentence set by
the statute was obligatory.
The learned Magistrate's
'kindly'
eye
over,\ooked this compulsive provision.
KISAN TRIMBAK v. MAHARASHTRA (Krishna Iyer, J.)
105
Wide-ranging defences were valiantly urged by
the
appeHants
before us but without merit.
For, once a person pleads guilty and
the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large
family, both brothers, the only bread-winners, being jailed,
bazaar
coming milk brought by the servant unwittingly turning out to be
buffaloes' milk and what not.
How can a factual contention of innocence survive a suicidal plea of guilt or teU-tale contrition wash
away the provision for minimum sentence? Therefore, what is permissible is the sole legal submission that the offence falls under the
proviso (i) to s. 16(1) which, if good, relieves this Court from imposing the compulsory mlnimum sentence of six months' imprisonment
if sound grounds therefor exist. The desperate appellants, undaunted
by one of them having been strained by a prior conviction for a food
offence, half-heartedly flirted with. the misericordious submission that
the Probation of Offenders Act be applied to the economic offenders.
The futile plea has to be frowned off, being more a gamble in foolhardy courage than one showing fidelity to precedents or fairness to
forensic proprieties.
We state it to reject it so that like delinquents
may not repeat it later in similar circumstances.
True, petty milk
vendors and poor victuallers, young apprentices in adulteration offences, trivial criminals technically guilty and others of their milk, especially when rehabilitation is feasible or repetition is impossible and the
social circumstances promise favourable correctional results,_ may call
the compassionate attention of the Court to the provisions of the probation law unless Parliament pre-empts its application by express
exclusion (The law in this regard has
since been tightened up).
Equally true, that a few guileless souls in the dock, scared by the
sometimes exaggerated legal fina1ity given to public analysts' certificates and the inevitable incarceration awaiting them, may enter into
that dubious love affair with the prosecution called 'plea bargaining'
and get convicted out of their own mouth, with a light sentence to
begin with, running the risk of severe enhancement if the High Court's
revisional vigilance falls on this 'trading out' adventure. This
Court
has animadverted on this vice of 'plea bargaining' in Murlidhar v.
State of Maharashtra( 1 ).
Maybe, something like
that
happened
here, as was urged before us by Shri Gobind Das for the appellants,
relying, as he did, on the circumstances that the accused had crossexamined the prosecution witness as if he were innocent, added a rider
to his plea of guilt and sown the seeds of a valid defence even as he
was asking for mercy in punishment. We do not explore the deeper
import of the quasi-compounding element or something akin to
it,
except to condemn such shady deals which cast suspicion on the integrity of food inspectors and the administration of justice.
This preliminary screening leaves for consideration only one legal
plea for paring down the sentence plus
adventitious detection of
another, built on the shortfalls in a slipshod certificate issued by th~
public analyst.
A
B
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D
E
F
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The sentencing scheme of the Act is this.
The offences
under
H
s. 16(1) are classified in a rough and ready way and while all of them
(1) [1976] 3 s. c. c. 684
A
B
c
D
E
106
SUPREME COURT REPORTS
(1977] 2 S.C.R.
are expected to be viewed sternly carrying a standard prison sentence,
a few of them are regarded as less serious in certain situations so that
the Court, for socially adequate, individually ameliorative
reasons,
may reduce the punishment to below the statutory minimum. The
proviso (i) to s.16(1) takes care of this comparatively les>er class
which may, for easy. reference, be called
'proviso offencei;'.
This
dichotomy of food crimes throws the burden on the Court of identifying the category to which the offence of the accused belongs. This
Court has earlier held-and to this we will later revert-that even if
the offence charged falls under both the categories i.e, proviso offences and others, there being admittedly, some overlap in the definition
the delinquent earns the severer penalty. In this view, to earn the
eligibility to fall under the proviso to s. 16 (1), the appellant must
establish not only that his case falls positively under the off~nces specified in the said proviso but negatively that his facts do not attract any
of the non-proviso offences in s. 16( 1).
Adulteration of food is so dangerous and widespread and has so
often led to large human tragedies, sudden or slow, insidious or open.
that social defence compels casting of absolute liability on the criminal,
even if the particular offence is committed with an unsuspecting mens.
To take risks in the name of very gullible dealers or very ignorant
distributors, when the consequences may spell disaster on innocent
victims, few or many, is legislative lackadaisical conduct, giving the
wildest hostage to fortune.
So it is that mens rea is excluded and
proof of actus rewn is often enough.
The story of small restauranteurs unwittingly vending milk, as is
alleged here,
is irrelevant to
culpability. To quantum of sentence, personal circumstances may be
relvant, subject to the minimum set. But the pertinent query is, does
the exception to the minimum set out in the proviso apply here ?
Section 16(1) and proviso (i) may now be set out for facility of
discussion :
"16(1) If any personF
(a) whether by himself or by any other person on his
G
H
be'balf .... or stores, sells or distributes any article of food-
(i) which is adulterated or misbranded or the sale of
which is prohibited by the Food (Health) authority
in the interest of public health;
*
*
*
*
he shall, in addition to the penalty he may be liable
under the provisions of section 6, be punishable with
imprisonment for a term which shall not be less than
six months but which may extend to six years, and
with fine which shall not be less than one thousand
rupees :
Provided that--
(i) if the offence is under sub-clause (i) of clause (a)
and is with respect to an article of food which
is
1
KISAN TRIMBAK 1'. MAHARASHTRA (Krishna Iyer, J.)
107
adulterated under sub-cl. (1) of clause (i) of secA
tion 2 or misbranded under sub-clause (k) of claus~
(ix) of that section
*
*
*
*
the Court may for any adequate and special reasons
to be _mentioned in the judgment, impose a sentence
of imprisonment for a term of less than six months
or of fine of less than one thousand rupees or of
both imprisonment for a term of less than six months
and fine of less than one thousand rupees."
The key legal issue, as earlier indicated, is as to whether proviso (i)
to s. 16(1) takes in the offence in question. Eligibility to the commiserative consideration sBt out in the said proviso depends on whether the adulteration of the article of food is of the species exclusively
covered by sub-cl. ( 1) of s. 2 (i) or it is 'mis-branded' under subcl. (k) of cl. (ix) of that section. We say 'exclusively', for reasons
which have been set out in Murlidhar(1:). One of us, in that ruling, has
argued:
"5. It is trite that the social mission of food laws should
inform the interpretative process so that the legal blow may
fall on every adulterator. Any narrow and pedantic, literal
and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law
&hould be discouraged. For the new criminal jurisprudenc~
must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes cakulated to protect the
public health and the nation's wealth. This humanist approach
and cute construction persuades us to reject Shri Bhandare's
analysis of Section 2(1). Sub-clause (a) of Section 2(i) has
a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit. There cannot be any doubt that if
the article asked for is 100% khurasani oil and the article
sold is 70% khurasani oil and 30% groundnut oil, the supply
'is not of the nature, substance or quality which it purports or
is represented to be'. The suggestion that there is no formal
evidence of representations or prejudice as stated in the section does not merit consideration being a quibble over a
trifle."
x
x
x
x
.
"9. Judici~l compassion can pl!'IY upon the situation only
1£ the offence 1s under sub-clause ( 1) of clause (a) of Section
16(1) and the adulteration is one which falls under subclause (1) of clause (i) of Section 2. Secondly, the proviso
also applies if the offence is under sub-clause (ii) of clause
(i), that is to say, the. offence is not one of adulteration but
is made up of a contravention of any of the other provisions
of the Act or o~. any rule made thereunder.
In the present
(I) [1976] 3 s.c.c. 684.
B
c
D
E
F
G
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A
B
c
D
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\
108
SUPREME COURT REPORTS
[1977] 2.s.c.R.
case we have already found that the accused is guilty of an
offence of adulteration of food under Section 2(i) (a). Therefore, proviso (ii) is out. Proviso (i) will be attracted, according to Shri Bhandare, if Section 2 ( i) (1 ) applies to the species
of adulteration committed. In our view, the only sensible
understanding of proviso ( i) is that the judicial jurisdiction
to soften the sentence arises if the offence of adulteration falls
only under sub-clause ( 1) of clause (i) of Section 2 and we
have held that it does not. We cannot but deplore the clumsy
draftsmanship displayed in a statute which affects the common man in his daily bread. It is unfortunate that easy comprehensibility and simplicity for the ·laity are discarded sometimes through oversophisticated scholarship in the
art of
drawing up legislative bills. It cannot be overstressed that a
new orientation for drafting methodology adopting directness
of language and avoiding involved reference and obscrurity is
overdue. Be that as it may, in the present case Section 2 (i)
(a) applies and Section 16(1) (a) has been breached. Therefore the proviso cannot be applied in extenuation and the conviction of the High Court has to be upheld."
A similar reasoning has found favour with this Court (two of us.
were party thereto)
in Prem Ballab v. State (Delhi Admn.) (1).
If the advantage of proviso (i) to s. 16(1) is liable to be forfeited by
the offence falling under any other definition iu s. 2 than 2(i) (1) or
2(ix) (k), the judicial focus turns on whether, in the present case, any
other sub-clause of s. 2(i) ors. 2(ix) is attracted. The High Court has
taken the view that other sub-clauses of s. 2 (i) than s. 2 (i) ( 1) apply
and therefore the appellant is out of Court in invoking the proviso to
s. 16(1).
There was much argument that addition of water to milk did not
am•Junt to 'adulteration' within the meaning of s. 2(i), (b) or (c) or
( d). Plausible submissions were made in that behalf by Shri Govind
Das but obviously we do not agree. However, the details of the debate
at the bar can be skirted because the appellants, inescapably, fall under
s. 2(ix) ( c) which reads :
"2(ix) (c) : 'misbranded'-an article of food shaH be
deemed to be misbranded if it is sold by a name which belongs to another article of food."
Indisputably, what was sold was 'buffalo's milk'.
Indeed, the Public
Analyst's Report indicates that what was seized and analysed was
'buffalo's milk', misbranded as cow's milk-an offence under s. 2(ix)
(C) of the Act and accused no. 2, Kisan Trimbak, has admitted, with
a laconic 'no', in answer to the question as to whether he had anything
to say about the Report of the Public Analyst. The third accused has
followed suit. The charge framed specificaUy mentions the offence
under s. 7(2) bearing on misbranding and the plea is one of 'guilt'.
Moreover, the evidence of P.W. 1, Food Inspector, also goes to show
that the food sold was stated to be cow's milk. Misbranding, in the
(1) Criminal Apeal No. 287of1971 decided on 15-9-76.
KlSAN TRIMBAK v. MAHARASHTRA (Krishna Iyer, J.)
109
present case, cannot be and is not contended to be one under s. 2(ix)
A
{k) which deals with labelling in accordance with the requirements of
the Act or the Rules. That is not the offending sale in the present case
which is one of fobbing off buffalo's milk as cow's milk.
The narrow point that survives is whether 'cow's milk' is an arti.cle
of food different from 'buffalo's milk', so that the sale of one by usmg
the name which belongs to the other can be said to attract s. 2 (ix) ( c) .
While 'milk' is a generic term, the identity of the article of food is
dependent on the source.
'Cow's milk', 'buffalo's milk', 'goat's milk',
'camel's milk', 'horse's milk', 'donkey's milk' are all different from each
other and are consumed by different sections of people, sometimes for
mlment, sometimes for improving health and, in the case of 'horse's
milk' for exhHaration and nourishment. Shortly put, they are different
articles of food and the name of one cannot be appropriated for the
other by a seller without being tracked down by s. 2 (ix) c) . The housewife is a competent interpreter of statutes dealing with household articles; the consumers' understanding of the expressions used in legislation
relating to them is an input in judicial construction. Law, in no branch,
is an absolute abstraction or sheer mystique; it regulates the business
of life and so its meaning must bear life's impress. Thus viewed 'cow's
milk' is different from 'buffalow's milk' and misbranding is complete.
And worse, the species of misbranding is that under s. 2(ix) (c).
Thus the conviction under s. 16(1) (a) and the exolusion of the
proviso (i) are justified, subject to what we have to say about the
Public Analyst's Report and the criticism levelled thereon which bears
on the guilt of accused no. 2.
A material circumstance which has been pressed before us-not as
a comrnisserative but as an absolvatory circumstance, is that only one
of the accused (accused no. 3) , according to the prosecution, was present when the misbranded article was sold to the Food Inspector and
that accused no. 2 could not be found guilty of sale of a misbranded
article of food by reading into the situation s. 1 7 ( 1). The short argument is that the liability of a partner of the firm, when another partner
has committed the offence, depends on the application of s. 17 (1) or
(2) of the Act. Section 17(2) makes the absent accused vicariously
guHty if 'it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of
the other partner'. In the present case, there is no evidence led by the
prosecution in proof of this requirement of mens rea against accused
no. 2. Which means that s. 17 (2) is inapplicable to create liability
against accused no. 2. Even so, s. 17 (1) may apply, if the absent
accused is in charge of or responsible for the conduct of the business
of the firm, the temporary absence of a partner at the time of the offending act being immaterial. In the present case. both the brothers
have been in charge of the business and so the substantive part of s.
17 ( 1) will apply unless the proviso salvages the second accused. This
proviso reads :
B
c
D
E
F
G
"Provided that nothing contained in this sub-section shall
H
render any such person liable to any punishment provided in
this Act if he proves that the offence was committed without
B
c
D
E
F
110
SUPREME COURT REPORTS
[1977] 2 S.C.R.
his knowledge or that he exercised all due diligence to prevent
the commission of such offence."
If the accused concerned is absent at the time of the commission of the
offence and circumstances are eloquently such as to lead to the clear
inference that there was no proof of scienter regarding the commission
of the particular offence, knowledge being absent, immunity from conviction for that offence follows.
In the instant case, the 2nd accused
was absent at the time the milk was sold. Furthermore, the quantity
of milk in the shop was bought from the bazar by the servant in the
shop. The crucial fact which ropes in the accused for the offence of
'mis-branding' under s. 2(ix) (c) is that the article, when sold, was
represented to be 'cow's milk'. This was an adventitious representation
made on the spot by the third accused on his own, so far as the evidence
discloses. It is not as if the business of the brothers was to palm off
buffalo's milk as cow's mHk on unwary buyers. Had there been a wellgrounded suggestion that this sharp practice had been resorted to more
than once we would unhesitatingly have inferred knowledge of the misbranding even on the part of the absent partner. Such is not the case
and so the 2nd accused is entitled to acquittal on this charge.
Counsel for the appellants correctly criticised the inadequacy of the
Public Analyst's certificate. Had there been a plea of 'not guilty' we
might have been forced to scrutinize how far the perfunctoriness of the
Public Analyst has affected the substance of his conclusions. It is not
enough to give a few mechanical data. It is more pertinent to help the
court with something more of the process by which the conclusion has
been arrived at. We need not probe the matter further, notwithstanding, the decisions reported in two English cases (cited before us) (1')
because the plea of 'guilty' silences the accused.
We accordingly dismiss the appeal, although we leave it to the State
Government, having regard to the fact that the trade is petty, that the
adulteration has not been shown to be by any noxious substance and
that the harm done has not been of any magnitude, to consider whether
it should exercise the power of clemency to remit the sentence by three
months so that it may be in tune with the provisions of the Act as
recently amended.
These observations notwithstanding, as aforesaid,
the appeal stands dismissed.
V.P.S.
Appeal dismissed.
(I) [IK69] 1 Q.B.D. 202 &. [1894] 1 Q.B.D. 478, 482.