Decided on November 24,1966

STATE Respondents


A.S.SARELA - (1.) Appellant No. 1 Ramanlal Chimanlal Shah is the owner of an Aerated Water Factory known as Shahco situated at Saraspur Ahmedabad. That factory manufactures aerated waters one of which is known as Orange King. Appellant No. 2 is an employee in that factory. On 12-2-1964 at about 9-15 A. M. witness Ambalal Bhailal Patel who is the Food Inspector appointed under the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) visited the said factory for the purpose of taking a sample of the drink Orange King. At the time of his visit appellant No. 2 according to the prosecution was present.
(2.) The prosecution story is that the Food Inspector called two persons as Panchas and in their presence obtained from appellant No. 2 a sample of the drink Orange King. The sample so purchased from appellant No. 2 consisted of six bottles of the drink Orange King for being analysed in accordance with the provisions of the Act. He paid the price of those six bottles. The usual formalities of giving intimation receipt dividing the sample into three parts sealing the bottles etc. were gone through and a panchanama was duly made. One of the bottles so sealed was sent to the Public Analyst as required by sec. 11(1) of the Act. The report of the Public Analyst (Ex. 7) showed that the drink contained 0.016% of saccharin. Now on the declaratory labels appearing on the bottles there was no mention that the drink contained saccharin. According to the prosecution this was required to be mentioned and the non-mention amounted to an offence of misbranding. Now sec. 7(ii) of the Act provides that no person shall himself or by any person on his behalf manufacture for sale or store sell or distribute any misbranded food. Breach of that provision is punishable under sec 16(1)(i) of the Act. The two appellants were accordingly prosecuted for the offence and they have been convicted by the City Magistrate 8 Court Ahmedabad by his judgment and order dated 3rd April 1965. Each of them has been sentenced to pay a fine of Rs. 1 0 in default to suffer rigorous imprisonment for six months. Against that conviction and sentence the appellants-accused have come in appeal. ... ... ... ... ... ... ...
(3.) Before discussing the evidence some of the relevant provisions of the Act may be referred to. Clause (v) of sec. 2 defines the expression food as meaning any article used as food or drink for human consumption other than drugs and water and then follows inclusive part in the definition with which we are not concerned. Clause (ix) of that section defines the expression misbranded. Out of the several sub-clauses of that clause we are here concerned with sub-clause (k). Under it an article of food shall be deemed to be misbranded if it is not lebelled in accordance with the requirements of the Act or rules made thereunder. Rule 32 of the Rules made under the Act (hereinafter referred to as the Rules) specifies the contents of a label. It lays down that unless otherwise provided in the rules there shall be specified on every label the details set out in the various clauses of the rule. Rule 47 which is relevant reads as under: 47 Addition of saccharin to be mentioned on the label: Saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label which shall be in the form given below: This......(name of food) contains an admixture of saccharin. Therefore under this rule whenever any food contained saccharin the container of such food shall have a declaratory label as stated in the rule so as to indicate that the food in the container contains saccharin. In the present case the contents of the six bottles which were taken by the Food Inspector for the purpose of a sample when analysed by the Public Analyst disclosed presence of saccharin. There is no dispute on that point. Mr. Thakore has no doubt contended that the manner in which the six bottles were mixed and divided into three parts was not consistent with the provisions of the Act and the Rules thereby possibly suggesting that the report of the Public Analyst may not be taken into consideration. But the question whether the Food Inspector had committed any error in this behalf or had acted contrary to the Act or Rules will be considered later. If the report of the Public Analyst has been properly obtained then there is no dispute about the fact that the food article in this case namely the drink Orange King contained saccharin. There is also no dispute about the fact that the containers which contained this drink did not bear declaratory labels as required by Rule 47. That being so having regard to the definitions earlier referred to the drink in this case which is an article of food must be deemed to be misbranded. Now sec. 7 of the Act prohibits manufacture for sale or storage or sale or distribution by any person himself or by any person on his behalf any misbranded food and the breach of that provision is punishable under sec. 16(1)(a)(i) of the Act which provision so far as material provides that if any person whether by himself or by another person on his behalf manufactures for sale or stores sells or distributes any article of food which is misbranded he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with a fine which shall not be less than one thousand rupees. There is a proviso under which lesser than the minimum punishment can be inflicted by a Court for any adequate and special reasons to be mentioned in the judgment. The facts alleged in the complaint (Exh. 1) bring the case under the count of manufacture and also the count of selling the drink without requisite declaratory label on the container. The case sought to be made out in evidence is one of sale. Evidence has been led on that footing and that was the case the appellants were called upon to meet and therefore that case only needs to be examined. ... ... ... ... ... ... ... [ His Lordship after discussing the evidence did not accept the submission of the appellant No 2 that the prosecution has not established his presence at the time of taking the sample and the argument that the formalities required by sub-sec. (7) of sec. 10 were not observed was not accepted. His Lordship further stated:;

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