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Issues Involved:
1. Cognizance and trial by the Special Judge. 2. Necessity of prosecuting the firm to convict partners. 3. Classification of Lactogen (infant formula) as baby food. 4. Responsibility and liability of partners under Section 10 of the Essential Commodities Act. 5. Consideration of mens rea and sentencing. Issue-wise Detailed Analysis: 1. Cognizance and Trial by the Special Judge: The preliminary point raised was whether the cognizance and trial by the Special Judge based on a prosecution report by P.W. 1, which is not a police report, is valid under Section 12AA(e) of the Essential Commodities Act. The provision states that a Special Court may take cognizance of an offence upon a perusal of the police report. However, the Division Bench in (1990) 3 OCR 480 clarified that a Special Court could take cognizance on a report by a public servant, overruling earlier single-judge decisions. Thus, the preliminary submission was not entertained. 2. Necessity of Prosecuting the Firm to Convict Partners: The trial court acquitted the accused partners on the ground that the firm was not made an accused. This decision was based on earlier judgments, including ILR (1975) Cut 86 and (1979) 48 CLT 1, which held that the firm must be prosecuted to convict partners. However, the Supreme Court clarified that it is not necessary for the company or firm to be made an accused to sustain the conviction of its officers, directors, or partners. Section 10 of the Act allows for the prosecution of individuals responsible for the company's conduct without necessarily prosecuting the company itself. Hence, the trial court's ground for acquittal was deemed unsustainable. 3. Classification of Lactogen (Infant Formula) as Baby Food: The defense argued that Lactogen (infant formula) is not listed in Schedule-I of the Orissa Baby Food Licensing Order and thus is not baby food. The prosecution countered that Lactogen (infant formula) falls under the category of 'Lactogen' as listed in the schedule. The court found that Lactogen, including its variants like Lactogen (Full Protein follow-up formula with iron) and Lactogen (Infant formula) with iron, is covered under the term 'Lactogen' in the schedule. Therefore, the trial court correctly held that Lactogen (infant formula) is baby food under the order. 4. Responsibility and Liability of Partners under Section 10: Section 10(1) of the Act states that every person responsible for the company's conduct at the time of contravention is guilty. Section 10(2) extends liability to any director, manager, secretary, or officer if the offence was committed with their consent or due to their neglect. The court found that accused Dindayal was present at the business premises during the inspection, making him responsible. Accused Khusiram admitted to selling Lactogen (infant formula), implicating his responsibility. However, accused Asharam, aged 62, claimed no knowledge of the partnership business, indicating he was not responsible for the contravention. Thus, only Dindayal and Khusiram were held guilty, while Asharam was acquitted. 5. Consideration of Mens Rea and Sentencing: Mens rea is not required to constitute an offence under Section 7 of the Act, but it can influence sentencing. Given the seven-year delay in the case and the lack of ill-motive, the court decided against custodial sentences. Instead, Dindayal and Khusiram were sentenced to pay a fine of Rs. 5,000 each, with a default sentence of three months' rigorous imprisonment if the fine is not paid within two months. The acquittal of Asharam was confirmed. Conclusion: The appeal was allowed in part, overturning the acquittal of Dindayal and Khusiram, who were fined, while confirming the acquittal of Asharam.
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