TMI Blog1975 (3) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... i came up in appeal after obtaining special leave of this Court against the order of acquittal passed by the learned Additional Sessions Judge. The appeal came up for hearing before a Division Bench (Jagjit Singh and Vyas Dev Misra, JJ.). Before this Division Bench the correctness of the decision in the case of M/s. Rammeshwar Chotte Lal (supra) was challenged and the said Division Bench by its order dated October 31, 1974, referred the following point for being considered by a larger Bench. Whether a company as defined in section 17 of the Prevention of Food Adulteration Act, 1954, enjoys immunity from prosecution when under the said Act it is alleged to have committed an offence to which the proviso to sub-section (1) of section 16 is not applicable and for which the minimum penalty of imprisonment for a term of not less than six months and fine of not less than one thousand rupees is provided and further if such a company does not enjoy the immunity from prosecution then on its being found guilty of such an offence can a punishment of fine be imposed on it. The matter has now been placed before the Full Bench. For appreciating the contentions of the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence is under sub-clause (i) of clause (a.) and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 or misbranded under sub-clause (k) of clause (ix) of that section; or (ii) if the offence is under sub-clause (ii) of clause (a), 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. (1A) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees. (1B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article and such article is found by the magistrate before whom it is produced, to be adulterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of, any director, manager, secretary or other officer of the company, such director, manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation : For the purposes of this section- (a) company means any body corporate, and includes a firm or other association of individuals; and (b) director in relation to a firm means a partner in the firm. Sec. 18. Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule there under, the article of food in respect of which the contravention has been committed may be forfeited to the Government. It will be noticed that the word person is not defined in the Act but has been defined in section 3(42) of the General Clauses Act which runs as follows:- Person shall include any company or association or body of individuals, whether incorporated or not. Section 17 of the Act postulates an offence under the Act being committed by the company and where an offence is committed by a company, persons guilty of the offence committed by a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 was substituted for the old sub-section (1) by Act No. 49 of 1964. The old sub-section (1) reads as follows - (1) If any person- (a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made there under, or (b) prevents a Food Inspector from taking a sample as authorised by this Act, or (c) prevents a Food Inspector from exercising any other power conferred on him by or under this Act, or (d) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him any material which may be employed for the purpose of adulteration, or (e) being a person in whose safe custody any article of food has been kept under sub-section (4) of Section 10, tampers or in any other manner interferes with such article, or (f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory, or by a Public Analyst or any extract thereof for purpose of advertising any article of food, or (g) whether by himself or by any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the last about eight years has revealed that the machinery provided by the Act is inadequate and that to cope with the increasing tendencies to indulge in adulteration, a revision of some of the provisions is necessary. The Central Council of Health at its meeting held in October, 1960, reviewed the position and recommended infer alia that the penal provisions of the Act should be made more deterrent and the services of the Food Inspectors instead of being left to remain under the local authorities should be provincialised...... It is also considered that the penal provisions of the Act are inadequate and that they should be made more deterrent in order to have an effective check on the evil of adulteration. (Gazette of India Extraordinary : Part II Section II 1963 at page 1045). It is apparent from the objects and reasons that the object of substituting the present sub-section (1) of section 16 was to provide more stringent punishments where they could be imposed for most of the offences contemplated by section 16 read with section 7 of the Act. It is, however, argued on behalf of the company that since the substantive part of section 16(1) makes imposition of imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be attributed to the company. He also remarked that it would not be possible to sentence a company to imprisonment and a charge under section 420 Indian Penal Code. could not be sustained against the company because it was mandatorily punishable with imprisonment. At the hearing of the reference before the High Court, the counsel for the State and the company supported the reference. Even the counsel for the complainant accepted the proposition that a company cannot be prosecuted for an offence under section 420 mandatorily involving punishment of imprisonment. The definition of the word 'person' in section 11 of the Indian Code is more or less at par with that given in section 3 of the General Clauses Act, 1897. Section Ii Indian Penal Code defined the word 'person' as under :- S.11. The word 'person' includes any Company or Association or body of persons, whether incorporated or not. 'Including' is a term employed generally where the scope of the class indicated by the words preceding it is wider than that of the class specified by the terms which follow. The clause unless there is anything repugnant in the subject or context must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich a limited company, not being a natural person, cannot commit vicariously or otherwise. A further exception, hut for a different reason, comprises offences of which murder is an example. where the only punishment the court can impose is corporal, the basis on which this exception rests being that the court will not stultify itself by embarking on a trial in which, if a verdict of Guilty is returned, no effective order by way of sentence can be made. In our judgment these contentions of the Crown are substantially sound, and the existence of these exceptions. and it may be that there are. others, is by no means inconsistent with the general rule. The exception in favor of company thus created was for an offence where the only punishment that the court can impose is corporal. In the decision of the court of Appeal in the case of The King v Daily Mirror Newspapers Limited. it was held that a limited company cannot be committed for trial on an indictment and, therefore, it cannot also be tried. The position is made clear in the argument of Sir John Simon which was accepted by the Court of Appeal. He pointed out that in order that a person may be brought to trial, he must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court had convicted the respondent under sections 170 and 384 of the Indian Penal Code. The trial court, however, did not pass sentence in respect of conviction under section 170 Indian Penal Code. The State had gone in revision to the High Court. While discussing this question whether the lower court was right in not passing any sentence, Mahmood J. observed as under :- I have now to consider the third question, namely, whether the learned Sessions Judge was right in law in declining to pass any sentence in respect of the conviction under s. 170 of the Indian Penal Code. I am of opinion that such an omission was illegal. Just as the maxim ubi jus ibi remedium is a rule of jurisprudence, so it is a principle, of the criminal law that where there is an offence there must be a punishment, the general rule being in either case affected by exceptional provisions of the law, whether provided by statute or some other legal authority, disturbing the uniformity of the application of general maxims. No such provision or authority is to be found in our criminal law. whether belonging to the domain of substantive law or of adjective law. Indeed, the provisions of section 170 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The proviso to sub-section (1) says that nothing contained in this subsection shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offences. Sub-section (2) of section 77 imposes a liability on director, manager, secretary or other officer of the company, if it is proved, in case of an offence by a company, that the same has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, etc. The definition of the company has been enlarged by the explanation to include a firm or other association of individuals and of director to include in relation to a firm a partner in the firm. It therefore clearly appears that firms and companies have been expressly brought within the purview of the penal provisions of the statute. It cannot, therefore, be said that firms and companies are completely outside section 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 16 also shows the legislative intent that the idea of the legislature was to make punishment more stringent. The legislative history does not show that the idea was to create an exemption in favor of the company which was already liable under the old section 16(1). Fact remains that the company cannot be given the sentence of imprisonment. The question which arises is: in what way is the section to be interpreted? It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case (1584) 3 Co. Rep 7a (equivalent to 76 ER. 637) was decided that- .........For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things arc to be discerned and considered: 1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the misch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such a case, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative. The legislative intent that the company is covered within the meaning of section 16(1) is further strengthened by a mere reference to section 16(ID), apart from sections 17 and 18 and the history of section 16(1) of the Act. The Division Bench in the case of Rammeshwar Chotte Lal and others (supra) after having held that the legislative intent is clear that firms and companies have been expressly brought within the purview of the penal provision of the statute felt difficulty in applying it where the minimum sentence was both corporal and fine on the ground that the courts are not competent to perform surgical operation on this section and say that though punishment prescribed is cumulative yet in the case of company it may be punished with fine only. This approach is contrary to the sound principles of interpretation of statutes mentioned above. There is no difficulty in the court passing the sentence of imprisonment and fine in the case of a company but ex fade such an order wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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