Criminal Appeal No 388 of 1976
Appeal by Special Leave from the Judgment and Order dated the 26th  27th July 1976 of the Bombay High Court in Criminal Appeal No 93074
Gobind Das AK Mathur and AK Sharma for the Appellant
MN Shroff for Respondent
MC Bhandare Mrs Sunanda Bhandare MS Narasimhan KC Sharma and HR Khanna for both the parties
The Judgment of the Court was delivered by KRISHNA IYER J
This criminal appeal by special leave raises a few questions of law under the Act XXXV
II of 1954 for short the Act ingeniously urged by the appellants a firm and its two partners although the plea of guilty  entered by the appellants before the trial court possibly as part of a plea bargaining  which misfired at the appellate level makes short shrift of the exculpatory and extenuatory arguments urged by his counsel before us
At the end of the weary forensic exercise we gathered what should have been told us first viz that when the three accused were exam 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 830 am 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 104 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 163 and the milk contained 178 of added water
A prosecution ensued the Food Inspector was exam ined and cross examined and a charge was framed after the accused were questioned and their written statements filed into Court
The charge read That you accused nos
1 2  3 on or about the 2nd day of October 1973 at 830 am at Nasik stored for sale adulterated buffalo milk with 163 of fat deficiency and 178 added water and also misbranded it as cow milk and thereby committed an offence punishable under section 7i ii and 16i A ii within my cognisance
 This charge elicited a plea of guilty  from all the three accused
Of course each added that he did not sell raw milk  and that the two brothers jointly ran the shop as a firm that the said business was a small one where tea milk and other articles were supplied that the whole family fifteen strong lived on the paltry profits from the petty restaurant and so a lenient view be taken on sentence
They further pleaded in extenuation that their servant pur chased the milk from the bazar reported that it was cow s milk and that it was on that basis that the accused told the Food Inspector that what was being sold was cow s milk
The trial Court acting on the plea of guilt convicted all the accused but viewed the offence as a somewhat venial devia tion where the adulteration being only of water was not injurious to human health  After adverting to a prior conviction of A 3 for a food offence the Magistrate merci fully declined to apply the Probation of Offenders Act The Magistrate observed in conclusion It is necessary to give accused nos
2 and 3 one more chance to improve themselves and do honest business 
The firm accused No 1 was punished withfine accused nos
2 and 3 the partners also were  punished under section 71 ii read with section 161 e 1 of the Act each being sentenced to a fine of Rs 500 
Even here we may permit ourselves the stern remark that there is pathos and bathos in this manner of magisterial indulgence when society is the victim and the stakes are human health and perhaps many lives It must be remem bered that the mandate of humanist jurisprudence is some times harsh
The State appealed for enhancement of the sentence and the High Court acceded and quashed the trial Court s sen tence in allowance of the appeal and enhanced the punishment to
six months  imprisonment plus fine of Rs 500 each the firm itself A  being awarded a fine only
The basic factor which led to enhancement of the sen tence by the High Court was that in the High Court s view the benefit of proviso 1 to section 161 stood repelled and so the minimum sentence set by the statute was obligatory
The learned Magistrate s kindly  eye overlooked this compulsive provision
105 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 broth ers 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 section 161 which if good relieves this Court from imposing the com pulsory minimum sentence of six months  imprisonment if sound grounds therefore exist
The desperate appellants undaunted by one of them having been strained by a prior conviction for a food offence half heartedly flirted with the misericordious submission that the Probation of Offend ers Act be applied to the economic offenders
The futile plea has to be frowned off being more a gamble in foolhardy courage than one showing fidelity to precedents or fairness to forensic proprieties
We state it to reject it so that like delinquents may not repeat it later in similar circum stances
True petty milk vendors and poor victuallets young apprentices in adulteration offences trivial crimi nals technically guilty and others of their milk especially when rehabilitation is feasible or repetition is impossible and the social circumstances promise favourable correctional results_ may call the compassionate attention of the Court to the provisions of the probation law unless Parliament pre empts its application by express exclusion The law in this regard has since been tightened up
Equally true that a few guileless souls in the dock scared by the some times exaggerated legal finality given to public analysts  certificates and the inevitable incarceration awaiting them may enter into that dubious love affair with the prosecution called plea bargaining  and get convicted out of their own mouth with a light sentence to begin with running the risk of severe enhancement if the High Court s revisional vigilance falls on this trading out  adventure
This Court has animadverted on this vice of plea bargaining  in Mur lidhar vs State of Maharashtra1
Maybe something like that happened here
as was urged before us by Shri Gobind Das for the appellants relying as he did on the circum stances that the accused had cross examined the prosecution witness as if he were innocent added a rider to his plea of guilt and sown the seeds of a valid defence even as he was asking for mercy in punishment
We do not explore the deeper import of the quasi compounding element or something akin to it except to condemn such shady deals which cast suspicion on the integrity of food inspectors and the admin istration of justice
This preliminary screening leaves for consideration only one legal plea for paring down the sentence plus adventi tious detection of another built on the shortfalls in a slipshod certificate issued by the public analyst
The sentencing scheme of the Act is this
The offences under section 161 are classified in a rough and ready way and while all of them 1 106 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 reasonsmay reduce the punishment to below the statutory minimum
The proviso i to s161 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 ie proviso offences and others there being admittedly some overlap in the definition the delin quent earns the severer penalty
In this view to earn the eligibility to fall under the proviso to section 161 the appellant must establish not only that his case falls posi tively under the offences specified in the said proviso but negatively that his facts do not attract any of the non proviso offences in section 161
Adulteration of food is so dangerous and widespread and has so often led to large human tragedies sudden or slow insidious or open that social defence compels casting of absolute liability on the criminal even if the particular offence is committed with an unsuspecting mens
To take risks in the name of very gullible dealers or very ignorant distributors when the consequences may spell disaster on innocent victims few or many is legislative lackadaisical conduct giving the wildest hostage to fortune
So it is that mens rea is excluded and proof of actus reum is often enough
The story of small restauranteurs unwittingly vending milk as is alleged here is irrelevant to culpability
To quantum of sentence personal circumstances may be relevant subject to the minimum set
But the perti nent query is does the exception to the minimum set out in the proviso apply here  Section 161  and proviso i may now be set out for facility of discussion 161 If any person a whether by himself or by any other person on this behalf  or stores sells or distributes any article of food i which is adulterated or misbranded or the sale of which is prohibited by the Food Health authority in the interest of public health       he shall in addition to the penalty he may be liable under the provisions of section 6 be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees Provided that i if the offence is under sub clause i of clause a and is with respect to an article of food which is 107 adulterated under sub cl
1 of clause i of section 2 or misbranded under sub clause k of clause ix of that section      the Court may for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees
 The key legal issue as earlier indicated is as to whether proviso i to section 161 takes in the offence in question
Eligibility to the commiserative consideration set out in the said proviso depends on whether the adulteration of the article of food is of the species exclusively covered by sub cl
1 of section 2i 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 Murlidhar1
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 21
Sub clause a of Section 2i 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 and 30 groundnut oil the supply is not of the nature substance or quality which it purports or is represented to be 
The suggestion that there is no formal evidence of representations or prejudice as stated in the section does not merit consideration being a quibble over a trifle
 x x x x 9
Judicial compassion can play upon the situation only if the offence is under sub clause i of clause a of Section 161 and the adulteration is one which falls under subclause 1 of clause i of Section 2
Secondly the proviso also applies if the offence is under sub clause ii of clause i that is to say the offence is not one of adulteration but is made up of a c ontravention of any of the other provisions of the Act or of any rule made thereunder
In the present 1 108 case we have already found that the accused is guilty of an offence of adulteration of food under Section 2i a
Therefore proviso ii is out
Proviso i will be attracted according to Shri Bhandare if Section 2 i 1 applies to the species of adulteration committed
In our view the only sensible understanding of proviso i is that the judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under sub clause 1 of clause i of Section 2 and we have held that it does not
We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread
It is unfortunate that easy comprehensibility and simplicity for the laity are discarded sometimes through oversophisticated scholarship in the art of drawing up legislative bills
It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved reference and obscrurity is overdue
Be that as it may in the present case Section 2i a applies and Section 161a has been breached
Therefore the proviso cannot be applied in extenuation and the conviction of the High COurt has to be upheld
 A similar reasoning has found favour with this Court two of us were party thereto in Prem Ballab vs State Delhi Admn1
If the advantage of proviso i to section 161 is liable to be forfeited by the offence falling under any other definition in section 2 than 2i 1 or 2ix k the judicial focus turns on whether in the present case any other sub clause of section 2i or section 2ix is attracted
The High Court has taken the view that other sub clauses of section 2i than section 2i 1 apply and therefore the appellant is Out of Court in invoking the proviso to section 161
There was much argument that addition of water to milk did not amount to adulteration  within the meaning of section 2i 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 section 2ix c which reads 2ix 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 section 2ix 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 followed suit
The charge framed specifically mentions the offence under section 72 bearing on misbranding and the plea is one of guilt 
Moreover the evidence of PW 1 Food Inspector also goes to show that the food sold was stated to be cow s milk
Misbranding in the 1 Criminal Appeal No 287 of 1971 decided on 15 9 76 109 present case cannot be and is not contended to be one under section 2ix k which deals with labelling in accordance with the requirements of the Act or the Rules
That is not the offending sale in the present case which is one of lobbing off buffalo s milk as cow s milk
The narrow point that survives is whether cow s milk  is an article of food different from buffalo s milk  so that the sale of one by using the name which belongs to the other can be said to attract section 2ix c
While milk  is a generic term the identity of the article of food
is de pendent on the source
Cow s milk  buffalo s milk  goat s milk  camel s milk  horse s milk  donkey s milk  are all different from each other and are  consumed by different sections of people sometimes for ailment some times for improving health and in the case of horse s milk  for exhilaration and nourishment
Shortly put they are different articles of food and the name of one cannot be appropriated for the other by a seller without being tracked down by section 2ixc
The housewife is a competent interpreter of statutes dealing with household articles the consumers  understanding of the expressions used in legislation relat ing to them is an input in judicial construction
Law in no branch is an absolute abstraction or sheer mystique it regulates the business of life and so its meaning must bear life s impress
Thus viewed cow s milk  is different from buffalo s milk  and misbranding is complete
And worse the species of misbranding is that under section 2ix c
Thus the conviction under section 161 a  and the exclu sion of the proviso i are justified subject to what we have to say about the Public Analyst s Report and the criticism levelled thereon which bears on the guilt of accused No 2
A material circumstance which has been pressed before us not as a commisserative but as an absolvatory circum stance is that only one of the accused accused No 3 according to the prosecution was present when the misbrand ed 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 section 17 1
The short argument is that the liability of a partner of the firm when another partner has committed the offence de pends on the application of section 17 1  or 2 of the Act
Section 172 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 section 172 is inapplicable to create liability against accused No 2
Even so section 171 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 so the substantive part of section 171 will apply unless the proviso salvages the second accused
This provi so reads Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 110 iris knowledge or that he exercised all due diligence to prevent the commission of such offence
 If the accused concerned is absent at the time of the com mission of the offence and circumstances are eloquently such as to lead to the clear inference that there was no proof of scienter regarding the commission of the particular offence knowledge being absent immunity from conviction for that offence follows
In the instant case the 2nd accused was absent at the time the milk was sold
Furthermore the quantity of milk in the shop was bought from the bazar by the servant in the shop
The crucial fact which ropes in the accused for the offence of mis branding  under section 2ixc is that the article when sold was represented to be cow s milk 
This was an adventitious representation made on the spot by the third accused on his own so far as the evidence discloses
It is not as if the business of the brothers was to palm off buffalo s milk as cow s milk on unwary buyers
Had there been a well grounded suggestion that this sharp practice had been resorted to more than once we would unhesitatingly have inferred knowledge of the misbranding even on the part of the absent partner
Such is not the case and so the 2nd accused is entitled to acquittal on this charge
Counsel for the appellants correctly criticised the inadequacy of the Public Analyst s certificate
Had there been a plea of not guilty  we might have been forced to scrutinize how far the perfunctoriness of the Public Analyst has affected the substance of his conclusions
It is not enough to give a few mechanical data
It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at
We need not probe the matter further notwithstanding the decisions reported in two English cases cited before us1 because the plea of guilty  silences the accused
We accordingly dismiss the appeal although we leave it to the State Government having regard to the fact that the trade is petty that the adulteration has not been shown to be by any noxious substance and that the harm done has not been of any magnitude to consider whether it should exer cise the power of clemency to remit the sentence by three months so that it may be in tune with the provisions of the Act as recently amended
These observations notwithstand ing as aforesaid the appeal stands dismissed
VPS Appeal dis missed
1 1869 1 QBD 202  482


Summary:
Section 161ai of the  provides inter alia that if any person whether by himself or by another person on his behalf stores or sells any article of food which is adulterated or misbrand edhe shall in addition to the penalty he may be liable under section 6 be punishable which imprisonment for a term which shall not be less than 6 months etc
The first proviso to the sub section provides that if the offence is under sub clause i of clause a and is with respect to an article of food which is adulterated under section 2i1 or misbranded under section 2ixk the Court may for any ade quate and special reasons impose a sentence of imprisonment for a term less than 6 months
Section 171 provides that where an offence under the Act has been committed by a firm every person who at the time the offence was committed was incharge of or responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence
The proviso to the sub section states that nothing contained in the sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission
Under section 172 notwithstanding anything contained in sub section
1 where an offence under the Act has been committed by a firm and it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner such partner shall be deemed to be guilty of the offence
In the present case accused 2 and 3 were partners carry ing on the business of a small restaurant accused 1
The Food Inspector visited the restaurant and noticing some milk kept for sale enquired about its quality
Accused 3 told him that it was cow s milk
The 2nd accused was then not present in the restaurant
The Food Inspector then bought some of the milk from the 3rd accused and sent it to the Public Analyst after complying with the statutory formali ties
The Public Analyst reported that the milk was buffa lo s milk that there was deficiency of fat and that the milk contained added water
The three accused were charged with the offence punishable under section 7i and ii and section 161Aii
They pleaded guilty and were sentenced to pay a fine
On appeal by the State the High Court holding that the accused cannot invoke the proviso to section 161ai enhanced the sentence on the 2nd and 3rd accused to the minimum term of imprisonment of 6 months
Dismissing the appeal to this Court HELD 1 The Probation of Offenders Act is not applica ble to the accused in the circumstances of the case
109 G 2 Addition of water amounts to adulteration within the meaning of section 2 i b c or d
108 E 3 To earn the eligibility to the benefit of the provi so to section 161ai the accused must establish not only that his ease fails positively under the offences speci fied in the said proviso but negatively that his acts do not attract any of the non proviso offences in section 161
The application of the proviso depends on whether the adultera tion or misbranding of the article is of the species exclu sively covered by section 2i1 or section 2ixk
In judicial construction the consumers  understanding of legislative expressions is relevant and so viewed Cow s milk  is different from buffalo s milk 
The misbranding therefore falls under section 2ixc which provides that an article shall be deemed to be misbranded if it is sold by a name which belongs to another article of food 103 and does not fall under section 2ixk
Therefore the exclu sion of the first proviso and the conviction of all the accused under section 161a are justified
106 C 107C 109D Murlidhar vs State of Maharashtra and Prem Ballabh vs State Delhi Admn Criminal Appeal No 287 of 1971 decided on 15 9 76 followed
4 The 2nd accused however is not guilty of selling the misbranded article
The liability of a partner depends on the application of section 171 or 2
Section 172 is not applicable to the absent 2nd accused as there is no evidence to prove the required mens rea set out in the sub section
Though section 171 applies the second accused would not be guilty of this charge because of the proviso to that sub section
The evidence shows that the second accused was absent at the time of the sale that the milk was bought from the bazar by the servant in the restaurant and that it was not as if the two accused were palming off buffalo s milk and Cow s milk but the particular representation by the 3rd accused was an adventitious One made by him on his own on the spot
109E F 110 B The Public Analysts report should not be prefunctory giving a few mechanical data
It should help the Court with something more of the process by which his conclusion has been arrived at