This petition for quashment of the proceedings under section 551-A read with section 439, Cr. P. C.
Arises from an order passed by Additional City Magistrate, K.M.C., whereby he took cognizance of an offence under West Pakistan Pure Food Ordinance. 1960, against the two petitioners and issued bailable warrants in the sum of Rs. 3,000 against each of them.
2. The facts of this case in brief are that on 7-3-1973, at about 2-00 p.m. The Food Inspector K.M.C.
Visited the canteen of R. B. Industries Limited and purchased samples of boiling buffalo milk from Canteen Clerk S. S. Hyder in presence of mashirs. He sealed these samples, which were sent to the Public Health Laboratory of K. M. C. On 8th March 1973. Samples were analysed on 9th March 1973, and the report was issued on 12th March 1973, that the samples contained 35.5 per cent. Added water and were deficient by 36 per cent. Of milk fat due to the addition of the water. The Assistant Health Officer K.M.C. Accordingly filed a complaint for offence under section 6(1)(a) and (c) read with section 23 of the West Pakistan Pure Food Ordinance, 1960, against S. S. Hyder, Canteen Clerk and Syed Zaheer Ahmed Rizvi, a Director of the limited Company, for having directly and indirectly sold adulterated buffaloes milk. The learned Magistrate then passed the impugned order on 17-7- 1973.
3. It has been argued by Mr. A. K. Brohi on behalf of the applicants that the Canteen of R. B.
Industries Limited was not dealing in sale of milk to the public on profit basis but the Canteen was meant exclusively for the benefit of the workers in that Factory under a settlement arrived at between the management and the labour in that Factory. The management had to provide a subsidy of Rs. 1,000 p. m. For the Canteen and the administration and the management of the Canteen was to be vested in the Canteen Committee consisting of 5 members, 3 nominated by the Union and 2 nominated by the Company. That the Canteen Committee was solely responsible for appointment of persons required to work in the canteen. That it could not therefore be said that the milk was meant for `sale' within the meaning of Pure Food Ordinance. That under the West Pakistan Factories Canteen Rules, 1959 the quality and the quantity of Food to be served in the Canteen had to be supervised by the Canteen Managing Committee and the Food Inspector of Municipality had no business to enter the Canteen in a factory and interfere in the functions of the Committee. That in any case the provisions of Pure Food Ordinance could not be inter--preted so as to include subsidised sales in factory canteen.
The definition of "Sale" has been given in the Ordinance under section 2(26) as follows: - "Sale in relation to food, means a transfer of ownership either by way of barter or in exchange for a price paid or promised or part paid or part promised."
Thus sale under the Ordinance is defined in very wide terms. The word `sale' has not been limited in scope by such qualifications as "public sale" gale for profit'. The emphasis is on sale of any article `as food', the inten--petition being to prohibit use of any article of food unfit for human consump--petition. Sale is defined in oxford Dictionary as exchange of a commodity for money or other valuable consideration. There should, therefore, be some sort of consideration for the transfer, which may not even be connected with mone--tary profit. Sale is an element necessary in carrying on of a trade or business. Profit or the intention to make profit is not an essential part of the legal definition of a trade or business; and payment of profit does not constitute a trade or business, which would not otherwise be such (Halsbury, IIIrd Edition, Volume 38, page 11). According to Lord Coleridge (22 Q B D 279), "the definition of the mere word `trade' does not necessarily mean some--thing by which a profit is made. Likewise making of profit is not a necessary ingredient of sale. The sale is a form of transfer and it need not be a public sale but can be a restricted sale. . There is, therefore, no apparent ambiguity in the definition of sale occurring in the Ordinance.
5. The law has no doubt to be interpreted in a manner so that it may not lead to any absurdity or be repugnant to another law or so as to cause injustice to any party. In determining general object of the Legislature, or the meaning of any particular passage in any law, the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be it true one. All such considerations are, however, immaterial where the language of the act is not open to doubt. The learned counsel for the petitioners has cited the case of Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union (PLD 1961 SC 403) on this point. In that Civil Appeal, it was observed that dispute in regard to service conditions of a salesman could not be regarded as industrial dispute for reference to the Tribunal, as a salesman could not have been intended to fall in the category of a workman. It was held that the Industrial Disputes Act must be so operated, as to avoid an abuse of a process, overriding the very purpose of Industrial Disputes Act by imperilling the very existence of the Company.
6. But in the present case application of the Pure Food Ordinance to Factory Canteens and other similar Organizations, or to sales on non-profit basis, would not in my opinion interfere with the object of this legislation prohibiting distribution of adulterated foodstuffs meant for human consump--petition. The intention of the framers of this Ordinance is indicated in the preamble and it is the maintenance of purity of the food and is not aimed as an anti-profiteering measure.
Looking to the standards of honesty prevailing amongst the persons and employees who manage such canteens and eating houses, the possibility of misappropriation of a commodity like pure milk, and its replacement by addition of water at the lower end cannot be altogether excluded.
Under the Canteen Rules, 1959, the `occupier' of, a factory is no doubt required to appoint a Canteen Committee but that committee under rule 8 is only to be consulted from time to time as to the quality and quantity of food to be served in the Canteen. This provision in the Canteen Rules does not conflict with the requirements under the Pure Food Ordinance. Nor can it be said that if the sales are interpreted to include sales in canteens, such an interpretation will lead to misuse or will defeat the very purpose of the Pure Food Ordinance. On the other hand non-application of the Ordinance to such cases may leave a lacuna which may defeat the very purpose of the Ordinance that all food distributed for human consumption should conform to the standards of purity. If the law in its natural construction, is not inconsistent or unreasonable or unjust, that construction is not to be departed from, merely because it may operate with hardship or injustice in some particular case. The facts of the case referred in the Supreme Court decision, are thus quite different and dis- -tinguish-able from the present case.
7. It has then been argued that even if the Ordinance is applicable to Canteens, the Director of a Company who has hardly anything to do with the working of a canteen, may not be prosecuted and dragged to the Criminal Court to undergo trial like an ordinary Criminal. As already .Discussed above, the Canteen managing committee under the amended Rules is merely a consultative committee appointed by the occupier of a factory. But in the settlement arrived at in the case of this particular factory, the administration and the management of the canteen have been handed over to canteen committee and the committee has been delegated the powers to appoint and discharge persons and pay them the wages, and made liable for everything connected with the canteen.
8. Under section 6 of the Ordinance no person shall directly or in--directly sell any adulterated food. But a person may sell the food himself or procure the food and store it for sale and the actual sale may be effected by a salesman or an employee. The burdon lies on the prosecution to show in what way a person is indirectly responsible for a particular sale. Under section 32 of the Ordinance, "no Court shall take cognizance of any offence punishable under this Ordinance except on the report m writing of the facts constituting such offences made by a Health Officer etc. Therefore, the complaint should contain such facts in concise form from which a natural inference can be drawn, how and in what manner the accused! Charged with the offences are responsible for such offences. In the present case all that has been stated in the complaint is that accused No. 1 directly and accused No. 2 indirectly sold the samples. This language appears to have been borrowed from the Ordinance itself. There is no mention in the complaint how accused No. 2 Zaheer Ahmed Rizvi one of the three Directors of the company is connected with this sale. The counsel for the K. M. C.
Was accordingly asked to explain the position. He replied that for inclusion of the 1 name of petitioner No. 1 (accused No. 2) in the complaint the basis was entirely the declaration recorded by the Food Inspector under section 18(4) o the Ordinance, of the person in custody of the Canteen, namely accused No. 1. There is no doubt that under section 25 of the Ordinance such a declaration containing the statement of the co-accused may be produced as evidence, but there is nothing to suggest shat such a declaration is exclusive proof of the fact that the person named was the owner or proprietor responsible for the sale.
9. A question then arises whether mens rea or guilty intention is a necessary ingredient of the offences under section 6 of the Ordinance punish--able under section 23 with a maximum sentence of 5 years. Ordinarily one of the requisite conditions of penal liability is the Maxim: Actus non Tacit reum, nisi mens sit rea. A man is responsible not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does them. This brings the mental attitude of the doer towards his deed. Criminal liability may require the wrongful act to be done intentionally or negligently. Even if the wrong is committed without lawful intention but the act committed is a result of negligence which is culpable, then too the mens rea would be present in its lower form. But there is a third E class of cases relating to wrongs of strict liability in which mens rea is not required. In the third class are included the cases of what is known as vicarious responsibility. In such cases one man is made answerable for the acts of another. In primitive times the Sardar or head of a tribe was made responsible for his kin. But in modern system vicarious liability in criminal law is considered indispensable and is avoided. Vicarious liability in the recent times is recognised mostly in the civil legal system as the liability of the, employer in respect of his employees. A person cannot be made to suffer substantial sentence in jail for an act of his servant, for which he was no morally responsible. Therefore, apart from certain minor and exceptional cases of absolute and strict liability independent of mens rea punishable with fine only the modern jurisprudence recognizes the principle that the punish--ment must be inflicted where it is justified as a deterrent in order to induce better conduct in the future.
10. How far mens rea or guilty intention is required to be present in an offence under the law for prevention of adulteration, has been discussed in various cases from time to time. The general trend of these decisions is that in criminal offences made punishable with substantial terms of imprison--ment, mens rea is an important ingredient of the offences, unless there is express provision in that Enactment to the contrary. A decision of consider-I able importance in this connection is of Privy Council report in AIR 1947 P C 135. In that case an employee of a salt agent exacted an extra charge over and above the control price of salt. This was shared by him with another employee. The question for consideration was whether the sale agent could be made responsible for this offence under section 81(2) of the Defence of India Rules, 1939. The High Court took the view that even if the appellant (agent) had not been proved to have known of the unlawful acts, of his servant, he would still be liable on the ground that where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of his servant. It was observed by their Lord--ships of the Privy Council as under "With due respect to the High Court, their Lordships think it necessary to express their dissent from this view. They see no ground for saying th4t offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind. Offences which are in that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation, if a person who was morally inno--cent of blame could be held vicariously liable for a servant's crime and so punishable "with imprisonment for a term which may extend to three years." Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when he said "It is in my opinion of the utmost importance for protection of the liberty of the subject that the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind."
11. The liability of an employer in food offences is mentioned by Halsbury (Simond's Edn., Vol. 17, p.
593) under the heading "Proceedings and Penalties" under the Food and Drugs Act, 1955, of England as under: --- "An employer may be convicted for counselling or procuring the com--mission of an offence by an inexperienced employee, if he has taken no steps to guard against the probability of the offence being com--mitted; but a wholesale merchant cannot be convicted of aiding and abetting an offending retailer if the wholesale merchant is not present when the adulterated article is sold, and there is evidence that he knew the circumstances in which the sale would be made. In case of offences by corporations, where any offence under the Food and Drugs Act, 1955, or any regulations or order made under it, which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of that body, or any person who was purporting to act in any such capacity, he as well as the body corporate is deemed to be guilty of that offence and punished accordingly."
Thus under the English Law, consent, connivance or neglect on the part of an employer is necessary and the liability is not absolute. Mens rea required for such offences is of the lower form.
12. In AIR 1962 Pb. 419 in a case under Prevention of Food Adultera--petition Act, 1954, it was observed that the words of the section, "No person shall himself or by any other on his behalf sell or distribute" indicated that the person who is guilty of an offence is the principal i.e., the Company which employed the petitioner for sale of aerated waters. That the servant was not liable under the provisions of the Act unless he sold for his own bene--fit or had the guilty knowledge express or implied that the food sold was adulterated. In AIR 1959 Bom. 497, it was held that the master was liable for the acts of his servant i.e., he was vicariously liable. That when a servant sold any commodity or any article of food stocked for sale by the master, the master would be deemed to have authorized the sale of such article by the servant and if it turned out that the article was adulterated the master would also be liable. Thus under section 7 of the Prevention of Food Adulter--ation Act, 1954, of Bombay, master, could also be held liable for authorising the sale of the article procured and stored by him in the shop.
"Where in a trial of an offence under section 16 (1) against a co-opera--tive milk society the evidence disclosed that the day to day business of selling the milk was done by the clerk of the Society and the Secretary was not going to the Society daily and the business was left in the hands of the clerk with a check over him by the Secretary it would not make the Secretary a person who at the time of the offence was in charge and was responsible to the Society for the conduct of the business within the meaning of section 17(1). In the absence of such evidence the conviction of the Secretary under section 16 (1) cannot be upheld."
Thus in this last decision the Honorary Secretary of a co-operative society could not be held liable for sale of adulterated milk by the paid clerk of the society in the absence of any culpable negligence or consent and connivance on his part.
13. These are the general principles applicable in cases of adulteration. If the mens rea is expressly made inapplicable and the Employer, Director or a Secretary in case of company or corporation, is made absolutely liable, for the acts of the paid servants or clerks, irrespective of knowledge and connivance or negligence, then alone necessity for proof of such facts could be dispensed with. But if there is no express or implied provision in the law dispensing with mens rea, then no one can be prosecuted without proof of guilty intention or knowledge or culpable negli--gence. In the present case the wordings of section 6 of the Ordinance that "whoever directly or indirectly sells", do not suggest that any Director without remuneration of a Company could be held respectable for the sale of adulterated milk by a paid clerk of the canteen in the factory, when the article sold has been stored and procured without his knowledge or connivance and when the powers of administration over the canteen have been delegated to a canteen committee. It has not even been shown in what way the petitioner No.1 Syed Zahir Ahmed Rizvi is responsible for this offence. It has not been alleged in the complaint that he connived at the sale of adulterated milk, or had knowledge or was guilty of culpable negligence, in not properly supervising these sales. In the absence of these facts no offence is made out by simply stating that adulterated milk was indirectly sold by petitioner No.1. The petitioner No. 1 has thus no notice of the case he is required to meet.
14. In view of the statement of the learned counsel on behalf- of the K. M. C. That there is no evidence connecting petitioner No.1 with the storage of buffaloes milk in the canteen and its sale by the petitioner No.1, no offence would appear to have been committed by the petitioner No.1 even on the reading of the complaint. It is true that the petitioner No.1, has the remedy of discharge or acquittal by the trial Magistrate, on the ground that he had no concern with the working of the canteen and he was not associated with its working as its proprietor. But inherent powers of the High Court under section 561-A can be exercised in exceptional cases of this nature, where a person is being prosecuted on a charge, which on the face of the complaint and evidence in possession of the prosecution, cannot be sustained. Non-interference may lead to harassment of the accused person and to an abuse of the process of Court.
15. I would for the reasons given above, quash the proceedings started against petitioner No.1, Syed Zahir Ahmed Rizvi in the Court of A.C.M., K.M.C. But direct that the case may be proceeded with against petitioner No. 2, Mr. S. S. Haider only on merits. The revision application is partly accepted.
S. A. H.