Criminal Appeal No 323 of 1980
From the Judgment and Order dated 151979 of the Orissa High Court in Government Appeal No 38 of 1977
Raj Kumar Mehta for the Appellant
SG Sambandhan for the Respondent
The Judgment of the Court was delivered by RAMASWAMY J
The respoudent was found to have sold adulterated cumin Jira on March 13 1976 punishable under s161ai read with s71 of the  for short the Act 
Both the courts found as a fact that the adulterated cumin was 254 exposed for sale and PW 1 the Food Inspector purchased the cumin Jira under the provisions of the Act and on analysis by the Public Analyst it was found that it contained 9 foreign seeds as against permissible 70 inorganic dust stones lumps of earth etc 02 and organic chaff sterm stipules etc at 18
Accordingly it was found to have been adulterated
The Magistrate and the High Court acquit ted the respondent on the sole ground that his father Appa Rao was the owner of the shop
Had that fact been brought to the notice of the sanctioning authority under s20 of the Act it would not have permitted to prosecute the respond ent the son of the owner
Accordingly placing reliance on Jagan Nath Sahu vs Food Inspector Jaipur Municipality 1973 2 Cuttack Weekly Reporter 1556 acquitted the accused and was confirmed by the High Court
The sole question that emerges for consideration is whether it is necessary that the respondent should be the owner of the shop for being prosecuted for the offences under section 161ai read with s71 of the Act
Sub sec tion 1 of s20 of the Act reads thus 1 No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority
Proviso is not necessary
Hence omitted
Section 2 of the Act defines adulterated  that if the articles sold by a vendor is not of the nature substance or quality demanded by the purchaser who is to purchase the article is adulterated
If the quality or variety of the articles fail below the prescribed standard or its constitu ents are present in quantities not within the prescribed limits of variability is also adulterated
It would there fore be clear that the word adulterated  was used widely
If the food or article of food is adulterated if it is not of the nature substance or quality demanded by the purchas er and sold by the seller and is to his prejudice  or contains any foreign substance in excess of its prescribed limit so as to effect injuriously the nature substance or quality thereof
In view of the finding of the courts below that cumin Jira was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act
What s20 envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order by the Central Government or the State Government or a 255 local authority
Therefore grant of sanction to prosecute for an offence under the Act is a condition precedent
The relevant criteria under s201 is the competence of the Officer to grant the sanction for the offence
It does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner son of the owner
Section 7 prohibits manufacture sale of certain articles of food
No person  shall himself or any person on his behalf manufacture for sale or store or sell or dis tribute i any adulterated food etc
The phrase himself or any person on his behalf  obviously included any other person like servant son father or agent irrespective of the relationship legal or jural etc
The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution
It is not in dispute that the officer that granted the sanction in this case is the competent officer as a delegate on behalf of the local authority
Undoubtedly a valid sanction is a condition precedent
If no valid sanction was granted by the authority certainly the accused is entitled to the benefit of statutory infraction though it is techni cal and be acquitted of the offence
In Sarjoo Prasad vs The State of UP 1961 3SCR 324 it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated
This court held that s7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under section 16 without proof of mensrea
This court repelled the argu ment that the legislature could not have intended having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold
The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them
There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate
In the interest of the public health the Act was enacted prohibiting all persons from selling adulterated food
In the absence of any provi sion express or necessarily implied from the context the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food
This view was reiterated in Ibrahim Haji Moideen  Anr
vs Food Inspector   Anr 1976 2 All India Prevention of Food Adulteration Cases 66
This court held that for the purpose of conviction under charge on which A 2 was tried
it was immaterial whether he was an agent or a partner of 256 A 1
Once it is proved that he sold the adulterated arti cles he was liable to be convicted under section 161 read with s7 of the Act
The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention
The Act is a welfare legislation to prevent health hazards by consuming adulterated food
The mensrea is not an essential ingredient
It is a social evil and the Act pro hibits commission of the offences under the Act
The essen tial ingredient is sale to the purchaser by the vendor
It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop
It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser including the Food Inspector and that Food Inspector purchased the same in strict compliance with the provisions of the Act
As stated earlier the sanctioning authority has to consider the material place before it whether the offence of adulteration of food was committed and punishable under the Act
Once that satisfaction is reached and the authority is competent to grant the sanc tion the sanction is valid
It is not necessary for the sanctioning authority to consider that the person sold is the owner servant agent or partner or relative of the owner or was duly authorised in this behalf
We have therefore no hesitation to hold that the courts below committed manifest error of law causing miscar riage of justice in holding that the sanctioning authority must be apprised of the status of the person that sold the adulterated food article to the Food Inspector or the pur chaser
Consequently the acquittal is set aside and the respondent is held liable to be conviction and accordingly convicted under s161ai read with s71 of the Act
But what is the sentence to be imposed The offence had occurred on March 131976 before the Amending Act has come into force
Under the unamended Act it was not mandatory to impose the minimum sentence
For reasons to be recorded the Magistrate may impose the sentence fine or both for the first offence and it was mandatory to impose minimum sen tence for second or subsequent offences
As stated 15 years have passed by from the date of the offence and at this distance of time the ends of justice may not serve to send the respondent to imprisonment
Suffice that he has undergone all these years the agony of the prosecution
But however the sentence of fine of a sum of Rs 500 is imposed upon the respondent and he shall pay the same
In default he shall undergo the imprisonment for a period of one month
The appeal is accordingly allowed
VPR Appeal allowed


Summary:
The appellant company was incorporated in the United Kingdom with its registered office in London and its business in the United Kingdom consisted of stores and groceries including tea which represented only about 10 of its business there
Its operations in India were carried on by a branch with its head office in Calcutta and the business there consisted mainly in the sale of  packeted  tea throughout India
The Delhi office of its Indian branch controlled the salesmen and other employees employed in the Punjab Delhi State Rajasthan and Uttar Pradesh but had no connexion with the export side of the business
The Indian Branch had no subscribed capital nor any reserves and the capital used in India was money advanced from the company s fund in England
The dispute between the respondents who were the employees of the Delhi office and the company related inter alia to 1 fixation of grades and scales of pay 2 whether retrospective effect should be given to the new scales of pay and 3 bonus for the year 1951
The respondents contended that the total global profits of the appellant company should form the basis for determining the claim to bonus on the ground that it was an integrated industry which had trading activities in various countries
The Tribunal found that the Indian workmen did not in any way contribute to the profits which the appellant company derived from its ex India business that the Indian branch maintained separate accounts which had been audited and accepted by the Income tax authorities as showing the profit and loss of the Indian branch of the business and that though at the relevant time the appellant company was one legal entity and the capital of the Indian branch came from London the Indian branch was treated as a separate entity for all practical purposes
The Tribunal also found that for 195 I there was no available surplus for distribution as bonus to the employees in India
In the matter of fixation of grades and scales of pay the Tribunal found that the existing scale of wages of the Delhi employees was far below the standard of a living wage and for fixing the wage level it took into consideration the company s global capacity to pay and came to the conclusion that having regard to its global 151 resources the company was financially able to bear a slightly higher wage structure
Accordingly the Tribunal revised the grades by giving an increase of 20 to all workers
As to the date from which the revised grades were to take effect the Tribunal directed that they should have retrospective effect from January 1 1954 instead of January 1 1953 as claimed by the Union
The appellant contended that the Tribunal erred in taking into consideration the global financial resources of the company in support of an increase in wages while holding that the Indian branch was a separate entity for the payment of bonus that the financial resources of the Indian branch did not show any capacity to pay higher wages and that in any case there was no reliable evidence to show that the existing wage structure required revision if it was compared to the wage structure in similar industries in the Delhi region
A question was also raised as to whether the Industrial Tribunal Delhi had jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi
Held 1 that on the finding that the Delhi office controlled all its employees in the matter of appointment leave transfer supervision etc whether employed in Delhi State or outside it the Industrial Tribunal Delhi had jurisdiction to adjudicate on the dispute between the appellant company and its workmen of the Delhi office as the Delhi State Government was the appropriate Government within the meaning of section 2 of the  and under section 18 of the Act the award made by the Tribunal was binding on all persons employed in the Delhi office 2 that in the circumstances in which the appellant com pany operated in India at the relevant time and on the finding that no part of the profits made in India was diverted to England and that the Indian business depended on its own trading results the global profits of the company could not be made the basis for awarding bonus to Indian workmen and that the latter can claim bonus only if there was an available surplus of profits of the Indian business Muir Mills Co Ltd vs Suti Mills Mazdoor Union Kanpur   Ganesh Flour Mills Co Ltd vs Employees of Ganesh Flour Mills AIR 1958 SC 382 Burn and Co Calcutta vs Their Employees  and Baroda Borough Municipality vs Its workmen   referred to
3 that in determining the question of a revision of the wage scale the relevant considerations were  1 whether the existing wage structure required revision by reason of its being below the standard of living wage and 2 whether the industry could bear the additional burden of an increase in the wage scale on the basis of industry cum region by reason of its financial resources in India  that judged by the considerations stated 152 above it could not be said that the Tribunal erred in revising the wage structure on the basis of the evidence adduced before it  and that the increase in the wages was not beyond the financial resources of the company as disclosed by its trading results in India
There is a distinction between bonus and wage
Bonus comes out of profits and is paid if after meeting prior charges there is an available surplus
Wages primarily rest on contract and are determined on a long term basis and are not necessarily dependent on profits made in a particular year
Crown Aluminium Works vs Their Workmen  and Express Newspapers Private Ltd vs The Union of India  relied on
4 that the new scales of pay should be brought into effect from November 1 1955 instead of January 1 1954 as directed by the Tribunal