# MANGALDAS RAGHA vn RUPAREL & ANR v. THE STATE OF MAHARASHTRA & ANR

- **Citation:** [1965] 2 S.C.R. 894
- **Court:** Supreme Court of India
- **Decided:** 1965-02-08
- **Case number:** Criminal Appeal No. 113 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mangaldas-ragha-vn-ruparel-anr-v-the-state-of-maharashtra-anr-3367
- **Pages:** 14

## Headnote

MANGALDAS RAGHA vn RUPAREL & ANR.
A
v.
THE STATE OF MAHARASHTRA & ANR.
February 8, 1965
[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,
J. R. MUDHOLKAR AND S. M. SIKRI, JI.]
Prevention of Food Adulteration Act (37 of 19S4) a. 2(zUl), 7(11),
10, 11, 13(S), 16(1) (a) and 19(1)-Public Analyst-Report of-If Su/Ii·
clent for conviction when analyst not ezamined-Mens rea-If prosecution should establish-Compulsory sale of sample to Food Inspector-If
"sale" under Act.
The three appellants were a wholesale dealer in spices, a dealer In
groceries, and his servant respectively.
The second appellant purchuecl
a bag of turmeric powder from the first and the third. appellant took delivery of it on behalf of the second appellant, his master. Immediately after it
was taken delivery of, the food inspector purchased from the third appellant
some turmeric powder contained in that bag for the purpose of analysis, and
after issuing notice to the third appellant as required by s. 11 of the Preven·
tion of Food Adulteration Act, 1954, sent a portion of the p0wder purchased
to the public analyst, who gave a report that it was adulterated food. Tbo
three appellants were then prosecuted under ss. 6(1)(a) read withs. 7(v)
of the Act and convicted by the Magistrate. The conviction was confirmed
by the High Court. In the appeal to this Court it was contended
that, (i) the report of the public analyst, by itself was not sufllcient ID
sustain the conviction, and the public analyst should have been called as
a witness, (ii) the report of the public analyst could not be uaed as evidence
against a person who was not given notice under s. 11 of the Act, (iii) the
first appellant could not be convicted without establishing that he had the
mens rea, and (iv) the taking of the sample under s. 10 by a food inspector,
was not a "sale" within the meaning of s. 2(xiii) and therefore s. 7(v)
of the Act was not infringed.
HELD: (i) Section 13(5) of the Act, makes the report of the public
analyst admissible in evidence and a Court of fact is free to act on it or
not, as it thinks fit. The Court could therefore legally act solely on the
l>a&is of the report and the prosecution c0uld not fail on the ground that
the public analyst was not called as a witness. If the appellant wanted the
analyst to be examined, it was for the appellant to take appropriate atepe.
[900 F; 902 C-D]
B
c
D
E
F
(ii) The law requires notice under s. 11 to be given only ID the person from whom the sample was taken and none else. If that formality
had been complied with and the report of the analyst is placed on record
at the trial, it would be admissible against all the accused persons. [902 H;
G
903 CJ
(iii) The word "vendor" in s. 19(1) means the person who had lold
the article of food which was alleged to be adulterated. At one stage, the
first appellant was the vendor of the turmeric powder. Since the section
deprives the vendor of adulterated food of the defence of merely illleging
that he was ignorant of the nature, substance or quality of the article of
food sold by him, the burden of showing that he had no
me111 rea ID
H
commit the offence would be upon the first appellant. {904 B-D]
State of Maharashtra v. Mayer Hans George, [1965] 1 S.C.R., 123 fol·
lowed.
M, RAGHAVJI v. STATE (Mudholkar, J.)
895
A
(iv) The definition of "sale" in s. 2(xiii) of the Act, apecifically
includes within its ambit a sale for analysis. The transaction in the instant
case would amount to sale inspite of the fact that where a person is iequired by the food inspector to sell him a sample of a commodity, there
is an element of compulsion under s. 10 of the Act. [906 HJ
Sarjo Prasad v. State of U.P., [1961] 3 S.C.R. 324, M. Y. Joshi v.
M. U. Shimpi, [1961] 3 S.C.R. 986 and State of Uttar Pradesh v. Kartar
B
Singh, A.I.R. 1964 S.C. 1135, referred to.
Food Inspector v. Parameswaran, [1962] 1 Cr. L.J. 652, overmled.

## Text

MANGALDAS RAGHA vn RUPAREL & ANR.
A
v.
THE STATE OF MAHARASHTRA & ANR.
February 8, 1965
[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,
J. R. MUDHOLKAR AND S. M. SIKRI, JI.]
Prevention of Food Adulteration Act (37 of 19S4) a. 2(zUl), 7(11),
10, 11, 13(S), 16(1) (a) and 19(1)-Public Analyst-Report of-If Su/Ii·
clent for conviction when analyst not ezamined-Mens rea-If prosecution should establish-Compulsory sale of sample to Food Inspector-If
"sale" under Act.
The three appellants were a wholesale dealer in spices, a dealer In
groceries, and his servant respectively.
The second appellant purchuecl
a bag of turmeric powder from the first and the third. appellant took delivery of it on behalf of the second appellant, his master. Immediately after it
was taken delivery of, the food inspector purchased from the third appellant
some turmeric powder contained in that bag for the purpose of analysis, and
after issuing notice to the third appellant as required by s. 11 of the Preven·
tion of Food Adulteration Act, 1954, sent a portion of the p0wder purchased
to the public analyst, who gave a report that it was adulterated food. Tbo
three appellants were then prosecuted under ss. 6(1)(a) read withs. 7(v)
of the Act and convicted by the Magistrate. The conviction was confirmed
by the High Court. In the appeal to this Court it was contended
that, (i) the report of the public analyst, by itself was not sufllcient ID
sustain the conviction, and the public analyst should have been called as
a witness, (ii) the report of the public analyst could not be uaed as evidence
against a person who was not given notice under s. 11 of the Act, (iii) the
first appellant could not be convicted without establishing that he had the
mens rea, and (iv) the taking of the sample under s. 10 by a food inspector,
was not a "sale" within the meaning of s. 2(xiii) and therefore s. 7(v)
of the Act was not infringed.
HELD: (i) Section 13(5) of the Act, makes the report of the public
analyst admissible in evidence and a Court of fact is free to act on it or
not, as it thinks fit. The Court could therefore legally act solely on the
l>a&is of the report and the prosecution c0uld not fail on the ground that
the public analyst was not called as a witness. If the appellant wanted the
analyst to be examined, it was for the appellant to take appropriate atepe.
[900 F; 902 C-D]
B
c
D
E
F
(ii) The law requires notice under s. 11 to be given only ID the person from whom the sample was taken and none else. If that formality
had been complied with and the report of the analyst is placed on record
at the trial, it would be admissible against all the accused persons. [902 H;
G
903 CJ
(iii) The word "vendor" in s. 19(1) means the person who had lold
the article of food which was alleged to be adulterated. At one stage, the
first appellant was the vendor of the turmeric powder. Since the section
deprives the vendor of adulterated food of the defence of merely illleging
that he was ignorant of the nature, substance or quality of the article of
food sold by him, the burden of showing that he had no
me111 rea ID
H
commit the offence would be upon the first appellant. {904 B-D]
State of Maharashtra v. Mayer Hans George, [1965] 1 S.C.R., 123 fol·
lowed.
M, RAGHAVJI v. STATE (Mudholkar, J.)
895
A
(iv) The definition of "sale" in s. 2(xiii) of the Act, apecifically
includes within its ambit a sale for analysis. The transaction in the instant
case would amount to sale inspite of the fact that where a person is iequired by the food inspector to sell him a sample of a commodity, there
is an element of compulsion under s. 10 of the Act. [906 HJ
Sarjo Prasad v. State of U.P., [1961] 3 S.C.R. 324, M. Y. Joshi v.
M. U. Shimpi, [1961] 3 S.C.R. 986 and State of Uttar Pradesh v. Kartar
B
Singh, A.I.R. 1964 S.C. 1135, referred to.
Food Inspector v. Parameswaran, [1962] 1 Cr. L.J. 652, overmled.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
113 of 1963.
Appeals by special leave from the judgment and order dated
C April 19, 1963, of the Bombay High Court in Criminal Appeal
No. 988 of 1962.
V. B. Ganatra and /. N. Shroff, for the appellant (Cr. A. No.
57 of 1963).
D
Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the
appellant (in Cr. A. No. 113 of 1963 ).
E
S. G. Patwardhan and B. R. G. K. Achar, for the respondent
-State (in both the appeals).
The Judgment of the Court was delivered by :
Mndholkar, J. This appeal and Criminal appeal No. 113/63
arise out of a joint trial of the appellant Mangaldas and the two
appellants Daryanomal and Kodumal in Cr!. A. 113 of 1963 for
the contravention of s. 7 ( v) of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) in which
F they were convicted and sentenced under s. 16(1 )(a) of the Act.
The appellants Mangaldas and Daryanomal were each sentenced
under s. 16(l)(a)(ii) of the Act to undergo rigorous in1prisonment for six months and to pay a fine of Rs. 500 while the other
appellant was sentenced under sub-cl ( i) to undergo imprisonment
until the rising of the Court and to pay a fine of Rs. 200. On anneal
G they were all acquitted by the Additional Sessions Judge, Nasik.
H
The State preferred an appeal before the High Court of Bombay
which allowed it and restored the sentences passed on 't.fangaldas
and Daryanomal by the Judicial Magistrate but imposed only a fine
of Rs. 200 on Kodumal. They have come up to this Court by
special leave.
The admitted facts are these. Mangaldas is a wholesale dealer,
Commission agent, exporter, supplier and manufacturer of various
kinds of spices doing business at Bombay. Dayanomal is engaged
896
SUPllBMB COURT REPORTS
[1965) 2 S.C.R.
in grocery business at Nasik while Kodumal is his servant. On A
November 7, 1960 Daryanomal purchased from Mangaldas a bag
of haldi (turmeric powder) weighing 7 5 kg. which was despatched
by the latter through a public carrier. It was received on behalf
of Daryanomal at 11.45 A.M. on November 18, 1960 by Kodumal
at the octroi post of Nasik Municipality. After he paid the octroi
duty to the Nasik Municipality and took delivery of the bag the
B
Food Inspector Burud purchased from him 12 oz. of turmeric
powder contained in that bag for the purpose of analysis. The
procedure in this regard which is laid down in s. 11 of the Act was
followed by Burud. A portion of the turmeric powder was sent to
the Public Analyst at Poona, whose report Ex. 16, shows that the
turmeric powder was adulterated food within the meaning of C
s. 2 ( i) of the Act. Thereupon Burud, after obtaining the sanction
of the Officer of Health of the Municipality, filed •a complaint
against the appellants in the court of the Judicial Magistrate for
offences under s. 16(1) (a) read withs. 7(v) of the Act. At the
trial Kodumal admitted that he had taken delivery of the bag at
0
the octroi post and sold 12 oz. of turmeric powder to the Food
Inspector and that he had also received a notice from him under
s. 11 of the Act. It was contended at the trial on behalf of Daryanomal that actually no delivery had been taken but that point was
not pressed before the High Court.
While Mangaldas admitted
that he had sold and despatched the bag containing turmeric E
powder he contended that what was sent was not turmeric powder
used for human consumption but was "Bhandara" which is used for
religious purposes or for applying to the forehead. This contention was rejected by the Judicial Magistrate as well as by the High
Court but was not considered by the Additional Sessions Judge. It
was sought to be challenged before us by Mr. Ganatra on his
F
·behalf but as the finding of the High Court on the point is upon a
question of fact we did not permit him to challenge it.
We will take Mangaldas's case first. Mr. Ganatra had made an
application on his behalf for raising a number of new pointi,
including some alleged to raise constitutional questions.
At the
hearing, however, he did not seek to urge any question involving
G
the interpretation of the Constitution. The new points which he
sought to urge were :
( 1) that the appellant was not questioned regarding the
report of the Public Analyst;
(2) the joint trial of Mangaldas with the otlter two appelH
!ants was illegal; and
( 3) that the sanction was not valid.
M. RAGHAVJI v. STATE (Mudholkar, J.)
897
A As regards the first of these points his contention is that he had
raised it before the High Court also though it has not referred to
in its judgment. The High Court has stated clearly that all the
points raised in argument before it were considered by. it. In the
face of this statement we cannot allow the point to be urged before
us.
B
As regards the second point it is sufficient to say that it was not
raised before the Magistrate.
Section 537 (b) of the Code of
Criminal Procedure provides that no judgment, conviction or
sentence can be held to be vitiated by reason of misjoinder of
parties unless prejudice has resulted to the accused thereby. For
c determining whether failure of justice has resulted the Court is
required by the Explanation to s. 537 to have regard to the fact
that the objection had not been raised at the trial. Unless it is so
raised it would be legitimate to presume that the accused apprehended no prejudice. The point thus fails.
As regards the alleged invalidity of sanction it is sufficient to
D
point out that the contention was not raised in the High Court or
earlier. We, therefore, decline to consider it.
Mr. Gar.atra urged that the trial court had no jurisdiction to
try the appellant as the appellant had not committed any offence
within its jurisdiction. With regard to this point the High Court
E
has held that Mangaldas had distributed the commodity within
the jurisdiction of the Magistrate and, therefore, the Magistrate
had jurisdiction to try him. Apart from that we may point out
that under s. 182 of the Code of Criminal Procedure where it is
unoertain in which of the local areas an offence was committed or
where the offence is committed partly in one local area and partly
F in another or where an offence is a continuing one and continues
to be committed in more local areas than one or where it consists
of several acts done in different local areas, it may be inquired into
or tried by a Court having jurisdiction over any of such local areas.
Since Mangaldas actually sent the bag from Bombay to Nasik he
oould be said to have committed the offence partly-in Bombay
G from where it was despatched and partly in Nasik to which place
it had been consigned. Apart from that, the mere fact that proceeding<; were taken in a wrong place would not vitiate the trial
unless it appears that this has occasioned a failure of justice (see
s. 531, Cr. P. C.). Mr. Ganatra, however, says that there was
H
failure of justice in this case because had Mangaldas been prosecuted at Bombay, one of the samples taken from the bag of turmeric powder would have been sent to the Public Analyst at
Bombay and not to the Public Analyst at Poona. We are wholly
898
SUPREME COURT REPORTS
(1965] 2 S.C.R.
unable to appreciate how this could make any difference whatA
soever. Apart from that since the samples were actually taken at
Naslk the one meant for analysis had, according to an administrative order o[ the Government, to be sent to the Public Analyst at
Poona. Therefore, even if Mangaldas had been tried at Bombay
the report oi the Public Analyst at Poona could be put in evidence.
There is nothing .in the Act which prevents that from being done.
B
In view of the fact t~at the f.nding of the Judicial Magistrate
and the High Court th"t the turmeric powder had been adulterated
was based soiely on the report of the Public Analyst, Mr. Ganatra
r;1ised three contentions before us. One is that such evidence is
not by itself sufficient for the conviction of an accused person; the C
second is that the Pubiic Analyst was not called as a witness in the
case and the third is that unless notice is given to an accused
person under s. 11 of the Act after a sample had been taken of the
allegedly adulterated commodity the report of the Public Analyst
concerning that commodity is not admissible against him.
In support of the contention that the conviction could not be
based solely npon the report of the Public Analyst that the turmeric powder was adulterated.
Mr. Ga.TJatra relied upon the
decisions in State v. Bhausa lianmatsa Pawar(') and City Corporation Trivandrum v. Antony('). The first of these is a case under
D
the Bombay Prohibition Act, 1949 (Bombay XXV of 1949). In E
that case a large quantity of angurasava, partly contained in two
barrels and partly in three boxes containing 109
bottles was
recovered from the house of the accused person .. Samples taken
from tbe ban-els and boxe3 were sent for analysis to the Chemical
Analyser and to the Principal, Podar Medical College, Bombay.
The report of the former showed that three out of the four samples F
cont~ined alcohol in varying degrees. Thereupon the accused was
prosecuted for offences under ss. 65, 66(b) and 83(1) of the
Bombay Prohib'tion Act. His defence was that he manufactured a
medicinal preparation called angurasav,: which contained Ayurvedic ingredients which generated alcohol. According to him, therefore, whe.t was seized from him was outside the orbit of the Bombay
G
Prohibition Act. Partly relying upon the certificate issued bv the
Principal of Podar Medical College, the trying Magistrate acquitted
the accused holding that the prosecution failed to discharge the
onus of proof that angurasava was prohibited liquor. On appeal
. by the State of Maharashtra before the High Court reliance was
placed upon the certificates issued by the Chemical Analyser as
H
well as by the Principal, Podar Medical College. The certificate of
(I) [1962] Born. L.R. 303.
(2) l.L.R. [1962] I Kerala 430.
.
M. RAGHAV.JI V. STATE (Mudholkar, J.)
899
A thC former showed that three out of the four samples contained
"2.2 and 6 per cent v /v of ethyl alcohol respectively and they
contain yeast No alkoloidal ingredient or metallic poison was
detected in them. The certificate of the Principal of the Podar
Medical College is as follows :
B
c
"Formula supplied is found to be similar to that
given in the Ayurvedic Books. There are no easy
methods to find out the herbal drugs dissolved in a liquid.
It is not possible for us, to find out the herbal drugs use:!
in the above liquids. The colour and smell of the samples
supplied is not identical with the colour and smell of
fermented Ayurvcdic preparation like, Assav and
Arishta. Hence it is very difficult to give any definite
opinion in the matter."
On behalf of the accused it was urged that by virtue of sub-s. (ii)
of s. 24(a) of the Prohibition Act, the provisions of ss. 12 and
D 13 thereof do not apply to any medicinal preparation containing
alcohol which is unfit for use as intoxicating liquor. Section 12
of the Act prohibits the manufacture and possession of liquor and
s. 16 prohibits the possession of materials for the manufacture of
liquor. It was, however, contended on behalf of the State that
once it is established that what was seized from the possession of
E the accused contains alcohol the burden of proving that what was
seized falls under s. 24 (a) was on the accused person. The High
Court, however, held that the burden of establishing that a par"
ticular article does not fall under s. 24(a) rests on the prosecution. In so far as the certificate of the Chemical Analysu WBll
F
G
concerned the High Court observed as follows :
"It is beyond controversy that, normally, in order
that a certificate could be received in evidence,
the
person who has issued the certificate must be called and
examined as a witness before the Court. A certificate
is nothing more than a mere opinion of the person who
purports to have issued the certificate, and opinion is
not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination."
It will thm be clear that the High Court did not hold that the
certificate was by itself insufficient in Jaw l:o sustain the convicH tion and indeed it could not well have said so in view of the provisions of s. 510, Cr.P.C. What the High Court seems to have
felt was that in circumstances like those present in the case
900
SUPlll!MB COURT REPORTS
[J 965] 2 S.C.R.
before it, a court may be justified in not acting upon a certificate of A
the Chemical Analyser unless that person was examined as a witness in the case. Sub-section ( l ) of s. 510 permits the use of the
certificate of a Chemical Examiner as evidence in any enquiry or
trial or other proceeding under the Code and sub-s. (2) thereof
empowers the court to summon and examine the
Chemical
Examiner if it thinks fit and requires it to examine him as a witB
ness upon an application either by the prosecution or the accused
in this regard. It would, therefore, not be correct to say that
where the provisions of sub-s. (2) of s. 510 have not been availed
of, the report of a Chemical Examiner is rendered inadmissible
or is even to be treated as having no weight. Whatever that may
C
be, we are concerned in this case not with the report of a Chemical
Examiner but With that of a Public Analyst. In so far as the
report of the Public Analyst is concerned we have the provisions
of s. 13 of the Act. Sub-section ( 5) of that Section provides as
follows:
"Any document purporting to be a report signed by
a public analyst, unless it has been superswed under
sub-section ( 3), or any document purporting to be a
certificate signed by the Director of the Central Food
Laboratory, may be used as evidence of the facts stated
therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code :
Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts
stated therein."
This provision clearly makes tho report admissible in evidence.
What value is to be attached to such report must necessarily be for
the Court of fact which has to consider it. Sub-section ( 2) of
s. 13 gives an opportunity to the accused vendor or the complainD
E
ant on payment of the prescribed fee to make an application to the
court for sending a sample of the allegedly adulterated commodity
G
taken under s. 11 of the Act to the Director of Central Food
Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst.
This certificate is not only made admissible in evidence under subs. ( 5) but is given finality of the facts contained therein by the
proviso to that sub-section. It is true that the certificate of the
H
Public Analyst is not made conclusive but this only means that tho
court of fact is free to act on the certificate or not, as it thinks fit.
A
B
M. RAGHAVJI v. STATE (Mudholkar, I.)
901
Sub-section ( 5) of s. 13 of the Act came for consideration in
Antorry's case(') upon which the State relied. There the question
was whether a sample of buffalo's milk taken by the Food Inspector
was adulterated or not. The Public Analyst to whom it was sent
submitted the following report :
"I further certify that I have analysed the aforemen·
tioned sample and declare the result of my analysis to be
as follows:
Solids-not-fat
9.00 per cent..
Fat
5.4 per cent..
c
Pressing point
D
(Hortvet's method)
o.49°c
and am of the opinion that the said sample contains not
less than seven per cent (7%) of added water as calculated from the freezing point (Hortvet's method) and
is therefore adulterated."
The Magistrate who tried the accused persons acquitted them on:
the ground that it was not established that the milk was adulterated. Before the High Court it was contended that the certificate
was sufficient to prove that water had been added to the milk and
reliance was placed upon the provisions of s. 13 ( 5) of the Act.
E
The learned Judge who heard the appeal observed that
this
provision only says that the certificate may be used as evidence
but does not say anything as to the weight to be attached to the
report. The learned Judge then proceeded to point out what
according to him should be the contents of such report and said:
F
"In this case the court is not told what the Hortvet's
test is, what is the freezing point of pure milk and how
the calculation has been made to find out whether
water has been added. I cannot, therefore, say that the
Magistrate was bound to be satisfied on a certificate of
this kind, which contains only a reference to some test
G
and a finding that water has been added. . The prosecution could have examined the Analyst as a witness on
their side. The learned Magistrate also could very well
have summoned and examined the Public Analyst, but
whatever that might be, I am not prepared to say 'hat
the finding of the Magistrate that the case has not been .
H
satisfactorily proved is one which could not
reasonably have been reached by the learned Magistrate and
(1) I.L.R. (1962] 1 Kcrala 430.
902
SUPREME COURT .REPORTS
[1965) 2 S.C.R.
that the acquittal is wrong and calls for interference."
A
(p. 436)
All that we wuuid like to say is that it should not have been
diflicult for the learned Judge to satisfy himself by reference to
standard books as to what Hortvet's method is and what the
freezing point of milk is. We fail to see the necessity of stating
B
in the report as to how the calculations have been made by the
Public Analyst. Apart from that it is clear that this decision does
not support the contention of learned counsel that a court of fact
could not legally act soleiy on the basis of the re.port oi the
Public Analyst.
As regards the failure to examine the Public Analyst as a
'vitness in the . case no blame can be laid on the prosecution. The
report of the Public Analyst was there rnd if either the court or
the appellant wanted him to be examined as a witness appropriate
steps would have been taken. The prosecution cannot fail solely
c
on the ground that the Public Analyst had not been called in the 0
.case. Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and
quite apart from the fact that it was not ch~lenged by any of
the appellants as inadequate when it was put into evidence, we
are satisfied that it contains the necessary data in support of the
conclmion that the sample of turmeric powder examined by him
E
·showed adulteration. The report sets out the result of the
analysis and of the tests performed in the public he.alth laboratory.
Two out of the three tests Rnd the microscopic examination
revealed adulteration of the turmeric powder.
The microscopic
examination showed the pre-~ence of ;iollen ~talks. This could
well be regarded as adequate to s.atisfy the mind of a Judge or F
Magistrate dealing with the facts.
Mr. Ganatra then s.1id that
the report shows that the analysis was not made by the Public
Analyst himself but by someone else. What the report says is "I
further certify that I have caused to be analysed the aforementioned sample and declare the result of the analvsis to be 3i
follows." This would show that what was done ~as done under G
the supervision of the Public Analvst and that should be reP.arded
as quiie sufficient.
-
•
Now as to the necessity of notice under s. 11
~f the A ct.
Mr. Ganatra said that the report is admissible only against a
person to whom notice is given under s. 11 (I)( a) by the Fo'.)d
Jnsaector, that the obiect of taking the samf)le was to have. it H
anilysed. The law requir~ notice to be given only to the person
from whom the sample is taken and to none else. The ol> ect of
M, .RAGHAVJI v. STATE (Mudholkar, ]. )
903
A this provision is clearly to apprise the peraon from whom the
sample is taken of the intention of the Food Inspector so that he
may know that he will have the right to obtain from the Food
Inspector a part of the commodity taken by way of sample by the
Food Inspector. This is with a view to prevent a plea from being
raised that the sample sent to the analyst was of a commodity
B difierent from the one from which the Food Inspector has taken
a sample. What bearing this provision has on the admissibility
of the evidence of the Public Analyst is difficult to appreciate.
Once the report of the Analyst is placed on record at the trial it
is adulissible against all the accused persons. What it shows
in the present case is that the commodity of which Kodumal had
C taken possession contained turmeric powder which was adulterated. Therefore, since it is admitted and also established that the
bag of turmeric powder from which sample was taken had been
despatched by the appellant Mangaldas, the report of the Public
Analyst could be properly used against him in regard to the
D
quality or composition of the commodity.
Mr. Ganatra then said that it was necessary to establish that
the appellant had the mens rea to commit the offence. In support of his contention Mr. Ganatra pointed out that s. 19 ( 1) of
the Act deprives only the vendor of the right to contend that he
was ignorant of the nature, substance or quality of the food sold
E
by him and not a person in Mangaldas's position. According to
him, the word vendor here means the person from whom
the
sample was actually taken by the Food Inspector. We cannot
accept the contention. The word "Vendor", though not defined
in the Act, would obviously mean the person who had sold the
article of food which is alleged to be adulterated. Mangaldas
F having sold the bag to Daryanomal, was the original vendor and,
therefore, though the sample was taken from Kodumal he will
equally be barred from saying that he was not aware of the
nature, substance or quality of the turmeric powder in question.
Moreover, it is curious that a person who sought to get out by
saying that what he had actually sent was not an article of food
G but something else should now want to say that he did not know
that though it was an article of food it was adulterated.
We may now refer to two decisions upon which learned counsel
relied in support of his contention. The first is Municipal Board,
Bareilly v. Ram Gopal (1). There the question was whether a
H
shopkeeper who allowed the owner of adulterated ghee to sell on
his premises was entitled to say in defence that he was ignorant of
(1) 42 Crr. LJ. 243.
USup./6S-12
!104
SUPl!.BMB COURT REPORTS
(1965} 2 S.C.R.
the quality of ghee which its owner was offering for sale. It was A
held by the Allahabad High Court that he was so entitled. We
fail to appreciate how this case is of any assistance in the matter
before us. For, here, the tunneric powder admittedly once belonged to Mangaldas and was in fact sold by him to Daryanomal. At
one stage, therefore, Mangaldas was the vendor of the tunneric
powder and, therefore, falls squarely within the provisions of s. 13 B
(1) of the Act. The second case is Ravula Hariprasada Rao v.
The State('). What was held in that case is that unless a statute
either clearly or by necessary implication rules out mens rea as a
constituent part of the crime, a person should not be found guilty of
an offence against the criminal law unless he has got a guilty mind.
The proposition there stated is well-established. Here s. 19 ( 1) of C
the Act clearly deprives the vendor of the defence of merely
alleging that he was ignorant of the nature, substance or quality
of the article of food sold by him and this places upon him the
burden of showing that he had no mens rea to commit an offence
under s. 17 ( 1) of the Act. In a recent case-State of Maharashtra v. Mayer Hans George( 2 )-this Court had to consider the D
necessity of proving mens rea in regard to an offence under s. 23
(1) (a) of the Foreign Exchange Regulation Act (7 of 1947)
read with a notification dated November 8, 1962 of the Reserve
Bank of India. The majority of Judges constituting the Bench held
that on the language of s. 8 ( 1) read with s. 24 ( 1) of the above
E
Act, the burden was upon the accused of proving that he had the
requisite pennission of the Reserve Bank of India to bring gold into
India and that there was no scope for the invocation of the rule
that besides the mere act of voluntarily bringing gold into India
any further mental condition or mens rea is postulated as necessary
to constitute an offence referred to in s. 23(1-A) of the above F
Act. We are, therefore, unable to accept the contention of learned
counsel.
The 'only other point which falls for consideration is the one
raised by Mr. Anthony in the other appeal. Mr. Ganatra did not
address any separate argument on this point but he adopted what
was said by Mr. Anthony. That point is whether the transaction G
in question i.e., taking of a sample by a Food Inspector under
s. 11 amounts to a "sale" and, therefore, whether the person connected with the transaction could be said to have infringed s. 7(v)
of the Act. Mr. Anthony's contention is that for a transaction to
be a sale it must be consensual sale. Where a person is required
by the Food Inspector to sell to him a sample of a commodity H
there is an element of compulsion and, therefore, it cannot be
(I) (19SI] S.C.R. 322.
(2) [196S] I S.C.R. 123.
M. RAGHAVJl v. &TATE (Mudholkar, J.)
905
A regarded as sale. In support of the contention he has placed
reliance upon the decision in Food Inspector v. Parameswaran(1 )
Raman Nayar J., who decided the case has observed therein:
B
D
E
F
H
"As a sale is voluntary .transaction and (sic) a
seizure or compulsory acquisition in exercise of statutory
power is ·not a sale within the ordinary sense of that
word. Nor does the definition of 'sale' in s. 2(xiii) as
including a sale of good for analysis make it one, for,
the first requisite even under the definition is that there
must be a sale. The definition apparently by way of
abundant caution, merely states that the word
'sale'
means all manner of sales 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 all that the definition means in relation to
the question we are considering is that a sale of food is
nonetheless a sale, by reason of the fact that it was not
for consumption or use, but only for analysis.
In my view when a food inspector obtains a sample
under s. 10 of the Act there is no sale. Of course, it is
possible for a Food Inspector just like any other human
being to effect a purchase in the ordinary course, and
the transaction would be a sale notwithstanding that the
purchaser is a Food Inspector and that his purpose is to
have the article analysed with a view to prosecution.
But, if he obtains the article not by a voluntary exchange
for a price but in exercise of his statutory power under
s. 10 of the Act the transaction is not a sale notwithstanding that in obedience to sub-s. (3) of s. 10 its cost
-and I think the sub-section advisedly uses the long
phrase, 'its cost calculated at the rate at which the
article is usually sold to the public' instead of the word
'price' is paid to the person from whom the sample is
taken."
In Sarjoo Prasad v. The State of Uttar Pradesh('); M. V. Joshi
v. M. U. Shimpi(') and The State of Uttar Pradesh v. Kartar
Singh(<) this Court has treated a transaction of the kind we have
here as a sale. No doubt, no argument was addressed in any of
these cases before this Court similar to the one advanced by Mr.
Anthony in this case and as advanced in Parameswaran's case(1 ).
(1) [1962] 1 Crl. L.J. 1S2.
(2) [1961] 3 S.C.R. 324.
n1 f196113 s.c.~. 986.
1• A.T.1!. 19&4 s c. ms.
906
SUPlll!MB COURT lll!PORTS
[1965] 2 S.C.R.
A view contrary to the one taken in Parameswaran's case(')
A
was taken in State v. Amritlal Bhogilal(2 ) and Public Prosecutor
v. Dada Raji Ebrahim H elari ( 8). In both these cases the sale was
to a sanitary inspector who had purchased the commodity from the
vendor for the purpose of analysis. It was contendCl;d in these
cases that the transaction was not of a voluntary nature and,
therefore, did not amount to a sale. This contention was rejected.
B
In Amritlal Bhogilal's case(2 ) the learned Judges held:
"There is also no reason why in such a case the
article should not be held to have been sold to the inspector within the meaning of s. 4 ( 1 )(a). He has paid
for the article purchased by him like any other customer.
c
Moreover, s. 11 itself uses the words "purchase' and
'sell' in regard to the inspector's obtaining an article
for the purpose of analysis and paying the price for it.
It is, therefore, clear that the Legislature wanted such a
transaction to be regarded as a sale for the purposes of
the Act." (p. 463)
D
The learned Judges in taking this view relied upon several
reported decisions of that Court. In Dada Hajj Ebrahim Helari's
case(8 ) which was under the Madras Prevention of Adulteration
Act, (3 of 1918) Ramaswarni J., dissented from the view taken by
Horwill J., in In re Ballamkonda Kankayya(') and following the E
decisions in Public Prosecutor v. Narayan Singh(') and Public
Prosecutor
v.
Ramachandrayya(8 )
held
the
transaction
by which a sample of an article of food was obtained by
a sanitary inspector from the vendor amounts to a sale even
though that man was bound to give the sample on tender of the
price thereof. But Mr. Anthony contends that a contract must be F
consensual and that this implies that both the parties to it must
act voluntarily. No doubt a contract comes into existence by the
acceptance of a proposal made by one person to another by that
other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other
person had no choice but to accept the proposal the transaction G
would never amount to a contract; Apart from this we need not,
however, consider this argument because throughout the case
was argued on, the footing that the transaction was a 'sale'. That
was evidently liCcause here we have a special definition of "sale" in
s. 2 (xiii) of the Act which specifically includes within its ambit a
c1> [1962) 1 Cr!. L. J. ua
(3) A.J.R. 1953 Mad. 241.
(S) 19-44 M. W.N. Crl. 131.
(2) LLR. 1954 Bom. 4!9.
(4) A.1.R. 1942 Mad 609.
(6) 1948 M.W.N' Crl. 31
H
M. RAGHAVJI v. STATE (Mudholkar, /.)
907
A sale for analysis. It is, therefore, difficult to appreciate the reasons
which led Raman Nayar J ., to hold that a transaction like the
present does not amount to a sale. We arc, therefore, unable to
accept that view. In the result we uphold the conviction and
ilentence passed on each of the appellants and dismiss these appeals.
B
Appeals dismissed.