H. Deka, J.
1. This case was referred to the Special Bench because of certain difference of views in the High Courts of the country on a point involved in this case, namely as to whether a servant could be held liable for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
2. In this case, on 22nd August, 1958, the Food Inspector of Karimganj purchased twelve ounces of 'Sun Brand' mustard oil from M/s. Lok-natli Trading Company of Karimganj town for the purpose of analysis by Public Analyst after observing all formalities. The oil was found to be adulterated and accordingly a complaint was filed against the accused who was a salesman of M/s, Loknath Trading Company with sanction of Karimganj Municipal Board.
3. The defence plea was that the oil was sold in the manner it was received from the producer mill and that the salesman did not know it to be adulterated. At the prayer of the accused the sample was further sent to the Central Food Laboratory, Calcutta, where also it was found to be a sample of adulterated oil. That the oil was sold is not denied out of the stock held by M/s. Lokenath Trading Company nor the fact that the accused was the salesman or an employee of the said firm.
4. The learned trial Magistrate found categorically that there was no doubt that adulterated oil was sold to P. W. 1, the Food Inspector, by the accused. The learned Magistrate, however, acquitted the accused on the basis of a decision of the Madras High Court, in the case of In re S. Moses, reported in AIR 1959 Mad 185. The learned Magistrate was of the view that the servant could not be held liable if he was not aware of the contents, and that the word 'person' as occurring in Sections 7 and 16 of the Prevention of Food Adulteration Act only meant the owner or proprietor of the shop.
A case identical on facts came up for decision before the Supreme Court and a blue print of the judgment of the Supreme Court in Criminal Appeal No. 147 of 1959 : AIR 1961 SC 631, Sarjoo Prasad v. State of Uttar Pradesh, has been placed before us. Their Lordships expressed the view that the Madras High Court decision referred to above (AIR 1959 Mad 185) was not quite correct. Their Lordships held that the servant or agent was as much responsible as the owner himself and the expression 'person' is not confined to the owner but it prima facie includes everyone who sells adulterated food. Their Lordships further discussed the point as to whether mens rea is necessary, and, they were of opinion that no such mens rea was necessary to be proved even in case of a servant. The relevant passage is:
If the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.
On the basis of this judgment, we are definitely of the view that the case was wrongly decided by the learned Magistrate and the order of acquittal was wrong. : On the basis of the finding, the accused was liable to be convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
5. Mr. Ghose, however, contended that there was a warranty coming within Section 19(2) of the Prevention of Food Adulteration Act. A warranty should have formed a part of the contract or should have accompanied the consignment. In this case the seizure of the article was made on 27th of August 1958 and an alleged warranty of a subsequent date - (dated 9th of February 1959) is produced in Court. Apart from the fact that the warranty is not legally proved, this cannot be construed to be a warranty coming within Section 19(2) of the said Act and, therefore, the accused cannot plead that the case comes within that clause.
6. The result, therefore, is that on the basis of the finding, the accused is convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and he is sentenced to a fine of Rs. 300/-, in default three months' rigorous imprisonment.
G. Mehrotra, J.
7. I agree.
S.K. Dutta, J.
8. I agree.