Sarjoo Prasad Vs State of UP PDF

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Page 1 Sunday, February 02, 2020

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(1961) 3 SCR 324 : AIR 1961 SC 631 : (1961) 1 Cri LJ 747
In the Supreme Court of India

(BEFORE J.L. KAPUR, M. HIDAYATULLAH AND J.C. SHAH, JJ.)
SARJOO PRASAD … Appellant;

Versus
STATE OF UTTAR PRADESH … Respondent.
Criminal Appeal No. 147 of 1959* , decided on December 16, 1960
Advocates who appeared in this case :
C.B. Agarwala, Senior Advocate (K.P. Gupta, Advocate, with him), for the Appellant;
G.C. Mathur and C.P. Lal, Advocates, for the Respondent.
The Judgment of the Court was delivered by
J.C. SHAH, J.— The appellant, Sarjoo Prasad was convicted by P.M. Aga, Magistrate
First Class, Allahabad, of an offence under Section 7 read with Section 16 of the
Prevention of Food Adulteration Act, 37 of 1954 hereinafter referred to as “the Act” —
and in view of a previous conviction for a similar offence was sentenced to suffer
rigorous imprisonment for one year and to pay a fine of Rs 2000. The conviction and
sentence were confirmed in appeal by the Court of Session at Allahabad and by the
High Court of Judicature at Allahabad in revision. The appellant has appealed to this
court with special leave under Article 136 of the Constitution.
2. The appellant was an employee of one Thakur Din who carries on business at 92-
C, Mirganj, Allahabad, as a vendor of edible oils and provisions. On September 22,
1956, a Food Inspector of the Allahabad Municipality purchased from the appellant a
sample of mustard oil exposed for sale in the shop which on analysis was found to be
adulterated with linseed oil. Thakur Din and the appellant were prosecuted in the
Court of the First Class Magistrate, Allahabad for, selling adulterated food. The
Magistrate convicted Thakur Din and the appellant and sentenced Thakur Din to pay a
fine of Rs 200 and the appellant to suffer rigorous imprisonment for one year and to
pay a fine of Rs 2000.
3. The expression “sale” is defined by Section 2(xiii) in the Act as meaning sale of
any article of food, whether for cash or on credit or by way of exchange and whether
by wholesale or retail, for human consumption or use, or for analysis, and includes an
agreement for sale, an offer for sale, the exposing for sale or having in possession for
sale of any such article, and includes also an attempt to sell any such article. The
definition includes not only actual sale but agreement for sale, offer for sale, exposure
for sale and even possession of articles for sale and attempt to sell. The appellant was
in charge of the shop at the time when mustard oil was sold to the Food Inspector.
Mustard oil was exposed for sale and it was in the possession of the appellant and he
actually sold it. But counsel for the appellant contends that by Section 7 of the Act,
the owner of a shop alone is prohibited from selling adulterated food, and a servant
employed in the shop who sells food on behalf of the employer is not a “person”
against whom the prohibition operates. Counsel says that an employee in a shop who
with knowledge that an article of food is adulterated, sells it is guilty of aiding and
abetting his employer, but without such knowledge he is not liable to be punished for
contravening the provisions of the Act.
Section 7 of the Act insofar as it is material provides:
“No person shall himself or by any person on his behalf … sell….
(i) any adulterated food;
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* * *
The material part of Section 16(1) provides:
“If any person,
(a) whether by himself or by any person on his behalf … sells … any article
of food in contravention of the provisions of this Act … or
he shall, … be punishable….”
4. That the mustard oil sold by the appellant was adulterated has not been
challenged in this appeal. The appellant's plea that the mustard oil delivered to the
Food Inspector was not meant for sale was disbelieved by the Trial Magistrate and that
view has been confirmed by the Court of Session and the High Court. The expression
“person” has not been defined in the Act and in the context in which that expression
occurs, it prima facie includes every one who sell adulterated food. By the collocation
of the expression, “no person shall himself or by any person on his behalf”, the
employer alone is not prohibited. The intention of the Legislature is plain. Every
person, be he an employer or an agent is prohibited from selling adulterated food and
infringement of the prohibition is by Section 16 penalised. By Section 19 in a
prosecution for an offence pertaining to the sale of any adulterated article of food, it is
no defence merely to allege that the vendor was ignorant of the nature of the
substance or quality of the food sold by him. Such a defence can only succeed if the
person charged with selling adulterated food proves that the article of food was
purchased as of the same in nature, substance and quality as that demanded by the
purchaser with a written warranty in the prescribed form, that he had no reasons to
believe at the time when he sold it that the food was not of such nature, substance,
and quality and that he sold it in the same state as he purchased it, and he submits to
the Food Inspector or the local authority a copy of the warranty with a written notice
that he intends to rely upon it and specifies the name and address of the person from
whom he received it. Prohibition of sale of adulterated food is evidently imposed in the
larger interest of maintenance of public health. The prohibition applies to all persons
who sell adulterated food, and for contravention of the prohibition all such persons are
penalised. Because the Legislature has sought to penalise a person who sells
adulterated food by his agent, it cannot be assumed that it was intended to penalise
only those who may act through their agents. If the owner of a shop in which
adulterated food is sold is without proof of mens rea liable to be punished for sale of
adulterated food, we fail to appreciate why an agent or a servant of the owner is not
liable to be punished for contravention of the same provision unless he is shown to
have guilty knowledge.
5. The argument that the Legislature could not have intended having regard to the
fact that a large majority of servants in shops which deal in food are illiterate to
penalise servants who are not aware of the true nature of the article sold has in our
judgment no force. The intention of the Legislature must be gathered from the words
used in the statute and not by any assumptions about the capacity of the offenders to
appreciate the gravity of the acts done by them. There is also no warrant for the
assumption that the servants employed in shops dealing in food stuff are generally
illiterate.
6. The Legislature has, in the interest of the public health, enacted the Act and has
provided that all persons are prohibited from selling adulterated food. In the absence
of any provision, express or necessarily implied from the context, the courts will not be
justified in holding that the prohibition was only to apply to the owner of the shop and
not to the agent of the owner who sells adulterated food. The view taken to the
contrary by the Madras High Court in Re S. Moses1 is, in our judgment, erroneous.
7. There is no substance in the contention that the conviction of the appellant was
not for a second offence committed by him under the Prevention of Food Adulteration
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Act. The prosecutor produced before the court an extract dated April 7, 1956 of a
judgment in Criminal Case No. 208 of 1956 which showed that one “Sarjoo Prasad”
had been convicted by P.N. Jauhari, Magistrate F-Class, Allahabad, of the offence of
adulteration of mustard oil and sentenced to pay a fine of Rs 80. In the view of the
Magistrate, the extract related to the appellant. The name of the person convicted and
his father's name and residence were identical with the name of the appellant, his
father's name and his residence. All the details given in the extract tallied with the
description of the appellant. In the memorandum of appeal filed to the Court of
Session challenging the conviction recorded by the Magistrate First Class, it was not
contended that the person convicted in the earlier case was some person other than
the appellant.
8. But the appellant was merely an employee of Thakur Din. It is not shown that he
made himself any profit out of the transaction. Thakur Din has been sentenced to pay
a fine of Rs 200 only. The offence committed by the appellant is a repetition of a
similar offence committed by him a few months earlier, but we think that having
regard to all the circumstances, this is a case in which there are special and adequate
reasons which would justify imposition of a penalty less than the minimum prescribed
by Section 16(ii) of the Act. We reduce the sentence to imprisonment to three months
and we remit the fine. Subject to this modification, the appeal is dismissed.
———
* Appeal by Special Leave from the Judgment and Order dated 21st July, 1959, of the Allahabad High Court in
Criminal Revision No. 503 of 1958 arising out of the Judgment and Order dated 27th March, 1958, of the Sessions
Judge, Allahabad, in Criminal Appeal No. 745 of 1957.
1 ILR (1959) Mad 418
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SCC Online Web Edition, Copyright © 2020

Page 1 Sunday, February 02, 2020

(1961) 3 SCR 324 : AIR 1961 SC 631 : (1961) 1 Cri LJ 747

In the Supreme Court of India

SARJOO PRASAD … Appellant;

1950-2020, © EBC Publishing Pvt. Ltd., Lucknow.

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