Kisan Trimbak Kothula & Ors Vs.
State of Maharashtra  INSC 289 (17 November 1976)
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 435 1977 SCR (2) 102 1977
SCC (1) 300
Prevention of Food Adulteration Act (37 .of
1954) Ss. 2(i)(1), 2(ix) (c) and (k), 16(1)(a)(i) and its first proviso and s.
17(1) and (2)--Scope of.
Section 16(1)(a)(i) of the Prevention of Food
Adulteration Act, 1954, provides inter alia 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 sub-clause (i) of clause (a) and is with respect
to an article of food which is adulterated under s. 2(i)(1) 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
that where an offence under the Act has been committed by a firm every person
who at the time the offence was committed was in-charge of or responsible for
the conduct of the business of the firm shall be deemed to be guilty of the
The proviso to the sub-section 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
In the present case accused 2 and 3 were
partners carrying on the 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 not present in the restaurant. The Food Inspector then bought some of
the milk 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 fine. On appeal by the State, the High Court, holding that
the accused cannot invoke the proviso to s. 16(1)(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 applicable 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 E] (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 ease fails
positively under the offences specified in the said proviso, but negatively,
that his acts do not attract any of the non-proviso offences in s. 16(1). The
application of the proviso depends on whether the adulteration or misbranding
of the article is of the species exclusively covered by s. 2(i)(1) or s.
2(ix)(k). In judicial construction, the consumers' understanding of legislative
expressions is relevant and so viewed, 'Cow's milk' is different from
'buffalo's milk'. The misbranding therefore falls under s. 2(ix)(c) which
provides that an article shall be deemed to be misbranded if it is sold by a
name which belongs to another article of food, 103 and does not fall under s.
2(ix)(k). Therefore, the exclusion of the first proviso and the conviction of
all the accused under s. 16(1)(a) are justified. [106 C; 107C; 109D] Murlidhar
v. State of Maharashtra  3 SCC 684 and Prem Ballabh v. State (Delhi
Admn.) Criminal 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 set out in
Though s. 17(1) applies, the second accused
would not be guilty of this charge because of the proviso to that subsection.
The evidence shows that 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 his own on the spot. [109E-F; 110 B] [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 has been
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 388 of 1976.
Appeal by Special Leave from the Judgment and
Order dated the 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
M.N. Shroff for Respondent.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S.
Narasimhan, K.C. Sharma and H.R. Khanna for both the 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 XXXV.
II of 1954) (for short, the Act), ingeniously urged by the appellants, a firm
and its two partners, although the plea of 'guilty' entered by the appellants
before the trial court--possibly as part of a 'plea bargaining' which misfired
at the appellate level-makes 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 firm
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 mls of such milk from accused No. 3. The statutory formalities under
the Act were complied 104 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:
"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 Adulteration Act
within my cognisance." 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 guilt, 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)
(1) 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 must be remembered that the mandate of humanist jurisprudence is sometimes
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-) being awarded a
The basic factor which led to enhancement of
the sentence by the High Court was that, in the High Court's view, the benefit
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
overlooked this compulsive provision.
105 Wide-ranging defences were valiantly
urged by the appellants 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
tell-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 minimum sentence of six months' imprisonment if sound grounds
therefore 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
victuallets, 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 finality 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 cross examined
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
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 the public analyst.
The sentencing scheme of the Act is this. The
offences under s. 16(1) are classified in a rough and ready way and while all
of them (1)  3 S.C.C. 684 106 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 lesser class which
may, for easy reference, be called 'proviso offences'. 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 offences specified
in the said proviso but negatively that his facts do not attract any of the nonproviso
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 reum 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 relevant, 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 person-(a) whether by
himself or by any other person on this behalf .... 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
* * * * * * 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
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
107 adulterated under sub-cl. (1) of clause (i) of section 2 or misbranded
under sub-clause (k) of clause (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
Eligibility to the commiserative
consideration set 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 should be discouraged. For the new criminal
jurisprudence must depart from the old canons, which make indulgent
presumptions and favoured constructions benefiting accused persons and
defeating criminal statutes calculated 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.
Judicial compassion can play upon the situation only if the offence is under
sub-clause (i) of clause (a) of Section 16(1) and the adulteration is one which
falls under sub clause (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 c ontravention of any of the other
provisions of the Act or of any rule made there under. In the present (1)
 3 S.C.C. 684.
108 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 over sophisticated scholarship in the art
of drawing up legislative bills. It cannot be over stressed 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 in 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) or s. 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.
There was much argument that addition of
water to milk did not amount 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 shall 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 specifically 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 Appeal No. 287 of 1971 decided on
15-9-76, 109 present case, cannot be and is not contended to be one under s.
2(ix) (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 lobbing off buffalo's milk as cow, s milk.
The narrow point that survives is whether
'cow's milk' is an article of food different from 'buffalo's milk', so that the
sale of one by using 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
ailment, sometimes for improving health and, in the case of 'horse's milk' for
exhilaration 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 'buffalo'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 exclusion 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 commisserative 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. 17 (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 guilty 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:
"Provided that nothing contained in this
sub-section shall render any such person liable to any punishment provided in
this Act if he proves that the offence was committed without 110 iris 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 milk on unwary buyers. Had there been a well grounded 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
V.P.S. Appeal dismissed.
(1)  1 Q.B.D. 202 &  1 Q.B.D.