MANGALDAS RAGHAVJI RUPAREL DARYANOMAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal and Criminal Appeal No. 113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cri. A. 113 of 1963 for the contravention of S. 7 (v) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) in which they were convicted and sentenced under S. 16 (1) (a) of the Act. The appellants Mangaldas and Daryanomal were each sentenced under Section 16 (1) (a) (ii) of the Act to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500 while the other appellant was sentenced under sub-cl. (i) to undergo imprisonment until the rising of the Court and to pay a fine of Rs. 200. On appeal they were all acquitted by the Additional Sessions Judge, Nasik. The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on Mangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs.200 on Kodumal. They have come up to this Court by special leave.

(2.) The admitted facts are these. Mangaldas is a wholesale dealer, commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay. Daryanomal is engaged in grocery business at Nasik while Kodumal is his servant. On November 7, 1960 Daryanomal purchased from Mangaldas a bag of haldi (turmeric powder) weighin 75 kg. which was despatched by the latter through a public carrier. It was received on behalf of Daryanomal at 11-45 a.m. on November 18, 1960 by Kodumal at the octroi post of Nasik Municipality. After he paid the octroi duty to the Nasik Municipality and took delivery of the bag the Food Inspector Burud purchased from him 12 oz. of turmeric powder contained in that bag for the purpose of analysis. The procedure in this regard which is laid down in S. 11 of the Act was followed by Burud. A portion of the turmeric powder was sent to the public Analyst at Poona whose report Ex. 16, shows that the turmeric powder was adulterated food within the meaning of S. 2 (1) of the Act. Thereupon Burud, after obtaining the sanction of the Officer of Health of the Municipality, filed a complaint against the appellants in the Court of the Judicial Magistrate for offences under S. 16 (1) (a) read with S. 7 (v) of the Act. At the trial Kodumal' admitted that he had taken delivery of the bag at the octroi post and sold 12 oz. of turmeric powder to the Food Inspector and that he had also received a notice from him under S. 11 of the Act. It was contended at the trial on behalf of Daryanomal that actually no delivery had been taken but that point was not pressed before the High Court. While Mangaldas admitted that he had sold and despatched the bag containing turmeric powder he contended that what was sent was not turmeric powder used for human consumption but was "Bhandare" which is used for religious purposes or for applying to he forehead. This contention was rejected by the Judicial Magistrate as well as by the High Court but was not considered by the Additional Sessions Judge. It was sought to be challenged before us by Mr. Ganatra on his behalf but as the finding of the High Court on the point is upon a question of fact we did not permit him to challenge it.

(3.) We will take Mangaldas's case first. Mr. Ganatra had made an application on his behalf for raising a number of new points, including some alleged to raise constitutional questions. At the hearing, however, he did not seek to urge any question involving the interpretation of the Constitution. The new points which he sought to urge were.