P.N.Bakshi, J. - (1.) LAXMI Narain and Ramesh Chandra are partners of a firm M/s. Ramesh Traders. According to the prosecution case they were responsible for the conduct of the business of the firm which deals in grams. On 2nd January, 1976, the Food Inspector found the accused exposing Kesari Dal for sale at the premises of the firm. He purchased a sample of Kesari Dal for analysis in accordance with the procedure prescribed by law. One of the sample phials sent to the Public Analyst disclosed that the sample was Kesari Dal, the sale of which was prohibited by Rule 44-A framed under the P. F. Act. On these allegations the firm as well as its partners were prosecuted under Sections 7/16 of the P. F. Act. The Addl. Chief Metropolitan Magistrate, Kanpur convicted all the accused for the offence in question. The Firm Ramesh Traders was sentenced to a fine of Rs. 2000/- only. Lakshmi Narain and Ramesh Chandra, Partners of the firm, were sentenced to one year's R. I. and a fine of Rs. 2000/- each. In default of payment of fine each one of them was to undergo R. I. for a further period of six months. Aggrieved thereby an appeal was filed before the Sessions Judge, Kanpur. Before the Sessions Judge, Kanpur the only point argued was the question of sentence. The Sessions Judge having considered the medical prescriptions and the ailment of LAXMI Narain remitted his sentence of imprisonment but maintained the sentence of fine of Rs. 2000/- in default six months R. I. The sentence of one years' R. I. and a fine of Rs. 2000/- imposed upon Ramesh Chandra was reduced to six months R. [. The fine of Rs. 2000/- was however, maintained. In default he was to undergo six months R. I. As for the firm the Sessions Judge found no scope for leniency, since it was dealing in such a dangerous commodity which was hazardous to the life of the citizens. He, therefore, maintained the sentence of fine of Rs. 2000/- imposed upon the firm. Hence this revision by Ramesh Chandra and the firm M/s. Ramesh Traders.
(2.) LEARNED counsel for the applicants argued this revision on the merits and tried to assail the judgment of the Sessions Judge. In the instant case it is evident from the impugned order of the Sessions Judge that in the appeal filed before him the only question argued was the point of sentence. They did not press the appeal before him on the merits. By appealing to the mercy of the Court they managed to obtain a reduction of sentence of imprisonment in the case of Ramesh Chandra from one year to six months R. I. They also obtained a remission of the sentence of imprisonment for Laxmi Narain, who is not an applicant before this Court. The sentence of fine imposed upon the firm was not, however, interfered by the Sessions Judge. Having failed to argue the appeal on merits before the Sessions Judge, it does not lie in the mouth of the applicants to argue the same on merits in the revision filed before this Court; after having obtained partial relief from the Sessions Judge, Kanpur on the ground of sentence only. The applicants cannot be allowed to play fast and loose with the court by pressing their appeal only on the question of sentence before the Sessions Judge and having obtained partial relief therefrom come to this Court to argue the revision on merits. However, even on merits the applicants have no case. The main question that has been argued is that Kesari Dal which was purchased by the Food Inspector was not meant for human consumption. Two witnesses have also been produced in support of their defence. In the first place, such a defence is not open to the accused. It has been held by a Full Bench of this Court in a decision reported in 1977 A. Cr. R. 200-State of U. P. v. Babu Lal, that:- "......the ban on the sale of the Kesari Dal and its storage and possession for purpose of the sale in Rule 44-A of the P. F. A. Rules is total and there is no scope for any exception or exemption and it is no defence to the prosecution under the Prevention of Food Adulteration Act to say (a) that the accused did not intend to use Kesari Dal as Food or (b) that he never intended to sell it as food." Thus possession of Kesari Dal for purposes of sale under any description whatsoever, whether for human consumption or otherwise, is totally prohibited under Rule 44-A framed under the F.F.A. Act. Secondly having read the statements of the defence witnesses and also the statement of the Food Inspector it is quite evident that this defence is false and cannot be accepted. The Food Inspector has denied that the accused informed him at the time of sale that the Kesari Dal in question was not meant for human consumption. There was no marking on the bag to indicate that it was to be used for cattle fodder. In these circumstances, factually such a defence must be rejected.
(3.) LEARNED counsel for the applicants has then argued that there is nothing on the record to indicate that the partners of the firm were incharge of and responsible to the company for the conduct of the business of the Company. This argument also has no legs to stand. From the statement of the Food Inspector it is very clear that the applicants were incharge of and responsible to the Company for the conduct of the firm. Even in the statement of the accused Ramesh Chandra, he has admitted that he used to manage the business and was a partner in the firm. Laxmi Narain, the other partner of the firm, has also made a similar admission in his statement under Section 313 Cr. P.O. As such there is no merit even in this contention raised on behalf of the applicants. Sale of Kesari Dal is injurious to health. It causes paralysis and has, therefore, been totally prohibited for sale or exposing for sale, by Rule 44-A mentioned above. The Sessions Judge has,already reduced the sentence imposed upon Ramesh Chandra on the ground that he was a junior partner in the firm aged about 22 years. There are no other circumstances for a further reduction in the sentence.;