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TMI Blog1976 (11) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ined and charges read out they pleaded guilty, which would have abbreviated the hearing here had we known it earlier. We proceed on the footing that the facts set out in the charge are true, that being the net price of a plea of guilt. At this stage, the particulars and the setting of the prosecution facts need to be narrated. On October 2, 1973 the Food Inspector of Nasik visited the small restaurant of the 'first accused firm at about 8.30 a.m., found a few litres of milk kept for sale and enquired about the quality of the milk. He was told by accused NO. 3 (a partner Of the business, the other partner being his brother, accused No. 2) that it was cow's milk. Thereupon, he bought 660 mls of such milk from accused No. 3. The statutory formalities under the Act were complied with and one of the three sealed bottles was sent to the public Analyst from whom the report was received that (a) the milk was not cow's but buffalo's milk; (b) the fat deficiency was 16.3% and the milk contained 17.8% of added water. A prosecution ensued, the Food Inspector was examined and cross-examined and a charge was framed after the accused were questioned and their written statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basic factor which led to enhancement of the sentence by the High Court was that, in the High Court's view, the benefit of proviso (1) to s. 16(1) stood repelled, and so the minimum sentence set by the statute was obligatory. The learned Magistrate's 'kindly' eye overlooked this compulsive provision. Wide-ranging defences were valiantly urged by the appellants before us but without merit. For, once a person pleads guilty and the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large family, both brothers, the only bread-winners, being jailed, bazaar coming milk brought by the servant unwittingly turning out to be buffaloes' milk and what not. How can a factual contention of innocence survive a suicidal plea of guilt or tell-tale contrition wash away the provision for minimum sentence ? Therefore, what is permissible is the sole legal submission that the offence falls under the proviso (i) to s. 16(1) which, if good, relieves this Court from imposing the compulsory minimum sentence of six months' imprisonment if sound grounds therefore exist. The desperate appellants, undaunted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act is this. The offences under s. 16(1) are classified in a rough and ready way and while all of them (1) [1976] 3 S.C.C. 684 are expected to be viewed sternly carrying a standard prison sentence, a few of them are regarded as less serious in certain situations so that the Court, for socially adequate, individually ameliorative reasons,may reduce the punishment to below the statutory minimum. The proviso (i) to s.16(1) takes care of this comparatively lesser class which may, for easy reference, be called 'proviso offences'. This dichotomy of food crimes throws the burden on the Court of identifying the category to which the offence of the accused belongs. This Court has earlier held--and to this we will later revert--that even if the offence charged falls under both the categories i.e, proviso offences and others, there being admittedly, some overlap in the definition the delinquent earns the severer penalty. In this view, to earn the eligibility to fall under the proviso to s. 16(1), the appellant must establish not only that his case falls positively under the offences specified in the said proviso but negatively that his facts do not attract any of the nonproviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e species exclusively covered by sub-cl. (1) of s. 2(i) or it is 'mis-branded' under subcl. (k) of cl. (ix) of that section. We say 'exclusively', for reasons which have been set out in Murlidhar(1). One of us, in that ruling, has argued: 5. It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes calculated to protect the public health and the nation's wealth. This humanist approach and cute construction persuades us to reject Shri Bhandare's analysis of Section 2(1). Subclause (a) of Section 2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit. There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 2(i) or s. 2(ix) is attracted. The High Court has .taken the view that other sub-clauses of s. 2(i) than s. 2(i) (1) apply and therefore the appellant is Out of Court in invoking the proviso to s. 16(1). There was much argument that addition of water to milk did not amount to 'adulteration' within the meaning of s. 2(i), (b) or (c) or (d). Plausible submissions were made in that behalf by Shri Govind Das but obviously we do not agree. However, the details of the debate at the bar can be skirted because the appellants, inescapably, fall under s. 2(ix) (c) which reads: 2(ix) (c): 'misbranded'--an article of food shall be deemed to be misbranded if it is sold by a name which belongs to another article of food. Indisputably, what was sold was 'buffalo's milk'. Indeed, the Public Analyst's Report indicates that what was seized and analysed was 'buffalo's milk', misbranded as cow's milk--an offence under s. 2(ix) (C) of the Act and accused no. 2, Kisan Trimbak, has admitted, with a laconic 'no', in answer to the question as to whether he had anything to say about the Report of the Public Analyst. The third accused has fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y circumstance, is that only one of the accused (accused no. 3), according to the prosecution, was present when the misbranded article was sold to the Food Inspector and that accused no. 2 could not be found guilty of sale of a misbranded article of food by reading into the situation s. 17 (1). The short argument is that the liability of a partner of the firm, when another partner has committed the offence, depends on the application of s. 17 (1 ) or (2) of the Act. Section 17(2) makes the absent accused vicariously guilty if 'it iS proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the other partner'. In the present case, there is no evidence led by the prosecution in proof of this requirement of mens rea against accused no. 2. Which means that s. 17(2) is inapplicable to create liability against accused no. 2. Even so, s. 17(1) may apply, if the absent accused is in charge of or responsible for the conduct of the business of the firm, the temporary absence of a partner at the time of the offending act being immaterial. In the present case. both the brothers have been in charge of the business and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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