Report No. 47
15.41. Canned Foods.-
A doubt has been raised1, as to the applicability of the Food Adulteration Act to canned or processed food. But we regard the definition of "food" and the sub-standard provisions as wide enough, to include canned and processed foods. It may be noted that it has been held, that if ghee of S.G. Mark Brand is sold from sealed tins, and the ghee is found to be adulterated, the vendor is guilty of an offence under section 7. That the vendor was ignorant about the quality of ghee is no defence2 under section 19.
1. Article on Food Adulteration in Times Weekly, November 28m 1971, by Bhisma Desai.
2. See (1954) M.P. Law Journal (Notes) 81, cited in the Digest for 1951 to 1965, under section 7(1), Prevention of Food Adulteration Act.
15.42. Supreme Court case.-
In one case1, the Supreme Court held that the accused persons had stored for sale condensed milk which was adulterated and, therefore they were guilty under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The defence of the appellants was based upon section 19(2) of the Act, namely that they had purchased the tins of condensed milk from another firm (whose appearance could not be obtained as they could not be traced), and that the goods were in the same condition as when they purchased them. On analysis of the contents of the condensed milk tins, it was found that it was sub-standard, as the fat content was below the minimum prescribed.
Therefore, the Court held that the condensed milk stored by the appellants for sale was adulterated, and there was a breach of the provisions of section 16(1)(a)(i). The Supreme Court held2:-
"In view of the provisions of section 19(1), it was not open to the appellants to contend that they were ignorant of the nature, substance and quality of the condensed milk sold by them. Sub-section (2) of section 19, however, furnishes a defence to a vendor ignorant of the nature, substance and quality of food sold by him provided he satisfies the requirements of that provision."
1. Barborally Sardar v. Corporation of Calcutta, AIR 1966 SC 1569 (1570), followed in Silchar Municipal Board v. Mukul Chandra, AIR 1968 A&N 24 (26) (DB).
2. Barborally Sardar v. Corporation cf Calcutta, AIR 1966 SC 1569 (1570).
15.43 Madhya Pradesh case.-
In this case, it was found that there was no warranty in the prescribed form, and neither the label on the tins nor the cash-memo contained any warranty that the food was the same in nature, substance and quality as demanded by the vendor, and hence the accused has failed to establish the defence under section 19(2) of the Act. The Supreme Court pointed out that the fact that the vendors sold tins of condensed milk "in the same state as they purchased them" was by itself not sufficient to absolve them. Therefore, the conviction of the appellants under section 16(1)(a) of the Act by the Calcutta High Court was upheld.
In another case1', the facts were as follows:-
"The accused sold ghee of S.G. Mark Brand which, on analysis was found to be adulterated. The plea of the accused was that he gave to the Food Inspector ghee of the very nature, substance and quality demanded by him, and that the tin from which he supplied the ghee was a sealed tin and he had no reason to think that the ghee contained in the sealed tin was not of the S.G. Mark. The trial Magistrate found that the ghee was adulterated, but he took the view that the ghee was not of the nature substance or quality which it purported to be or was represented to be.
On appeal, the Madhya Pradesh High Court held that under section 2(i)(1) of the Act, an article of food was deemed to be adulterated "if the quality of purity of the article falls below the prescribed standard or the constituents are present in quantities which are in excess of the prescribed limits of variability". Further, it was held that "the Act aimed at prohibition of sale of adulterated food in larger interests of maintenance of public health and with that aim prohibited totally, under section 7, the manufacture, sale, distribution or storage of any adulterated food... Section 19 of the Act laid down that it would be no defence to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser was not prejudiced by the sale".
1. Municipal Council, Durg v. Gujarmal, 1964 MPLJ, Notes 81 (DB), cited in the Yearly Digest.
15.44 Tinned foods when misbranded.-
In addition to tinned foods being deemed 'adulterated' under section 2(i)(1), they can also be treated as misbranded under section 2(ix)(k).1-2
1. Varma v. Corporation of Madras, (1970) 1 MLJ 407 (408).
2. Jagneswar v. Gopal Chandra, AIR 1961 Tripura 18 (21).
15.45. Maximum punishment under the Prevention of Food Adulteration Act.-
The maximum punishment under the Prevention of Food Adulteration Act does not require any radical change. There may, however, be scope for rationalisation of the punishment under the Act; but such an inquiry would involve numerous matters of detail outside the scope of this Report.
15.45A. Burden of proof of mens rea.-
We have recommended1 in general the insertion of a section relating to burden of proof. So far as the Prevention of Food Adulteration Act is concerned, section 19 achieves the object, and no further provision is needed.
1. Para. 7.12, supra.
15.46. Essential Commodities Act.-
So far as the Essential Commodities Act is concerned, the following provisions found in several other enactments dealing with social and economic offences are absent:-
(i) Minimum imprisonment on first conviction.
(ii) Public censure.
Both these raise questions of mens rea, and as the following paragraphs1 will show, the Act is very stringent in that respect at present.
1. Para. 15.47, et seq.
15.47. Mens rea under section 7 considered.-
We now deal with the question of mens rea. After the amendment of 1947, the penal provision in the Essential Commodities Act has acquired a different character, by the elimination of mens rea. The relevant portion of section 7(1), of that Act, now reads -
"7. (1) If any person contravenes, whether knowingly, intentionally or otherwise, any order made under section 3-
(a) he shall be punishable
(i) in the case of an order made with reference to clause (h) or clause
(i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which may extend to five years and shall also be liable to fine:
Provided that in the case of a first offence, if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from imposing a sentence of imprisonment and in the case of a second or subsequent offence, the Court shall impose a sentence of imprisonment and such imprisonment shall not be less than one month;"
[Clause (b) relates to forfeiture, and is not material for the point under discussion.]
15.48. Mens rea under the Essential Commodities Act.-
Even the existing provisions for mandatory imprisonment contained in the Act1, may prove to be harsh where the particular contravention charged was not committed "intentionally or knowingly", but was committed "otherwise2". One alternative to remedy this hardship would be to re-cast the penal provision in section 7(1)(a) so as to make a distinction between contraventions committed knowingly or intentionally (on the one hand) and other contraventions, (on the other hand). In the former case, a mandatory imprisonment (as at present) with a minimum term (to be added) would be appropriate, with a relaxing power in the court to take care of exceptional cases. In the latter case, neither mandatory nor minimum term of imprisonment would be called for.
1. Section 7, Essential Commodities Act.
2. Para. 15.47, supra.
15.49. However, we do not think it necessary to go to that length at the present stage. Experience of the working of the new section can be awaited for a year or so.
15.50. But we should, at this stage, refer to our general recommendation for shifting the burden of proof1, and point out that section 7 of the Essential Commodities Act goes beyond merely throwing the burden of proof on the accused, and practically eliminates mens rea. Government may consider whether the section should not be brought into line with our general recommendation.
1. Para. 7.12, supra.