LexKISAN TRIMBAK KOTHULA & ORS versus STATE OF MAHARASHTRA
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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 E F G H Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954, pro- vides 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 sub- clause (i) of clause (a) and is with respect to an article of food which is adul- terated 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 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 com- mission. 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 conni- vance 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 res- taurant. 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\ construc- tion 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 pro- A 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 o
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