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Emperor Vs. Ganpat Laxman Kalgutkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 115 of 1938
Judge
Reported inAIR1938Bom427; (1938)40BOMLR820
AppellantEmperor
RespondentGanpat Laxman Kalgutkar
DispositionAppeal dismissed
Excerpt:
.....of the bombay abkari act, 1878, with having committed breach of the license in that they kept for sale toddy adulterated with chloral hydrate. the servant pleaded guilty to the charge and was convicted on his plea. the accused denied his liability on the ground that he was unavoidably absent on that day owing to illness and that he had taken all due and reasonable precautions contemplated by section 47 of the act against his servant adulterating the toddy, inasmuch as he had employed with the permission of the authorities, two servants, who would act as effective checks on one another. it was also proved at the trial that about three weeks prior to the raid in question another surprise raid was carried out in this booth and the samples of toddy taken on that occasion were found to be..........of that booth under section 46(e) of the bombay abkari act with the offence of exposing for sale toddy which was adulterated with chloral hydrate. the manager pleaded guilty to the charge and has been dealt with. the respondent pleaded that he was not liable to be convicted on the charge as he had taken all due and reasonable precautions to prevent the doing of the acts which would amount to a breach or breaches of the terms and conditions of the license. under section 46 of the bombay abkari act the adulteration of toddy and exposing it for sale is an offence. section 47 of the same act provides that the licensee himself would be guilty of the offence committed by his servant or manager as if he himself had committed the same, unless he establishes that all due and reasonable.....
Judgment:

Wassoodew, J.

1. This is an appeal by the Government of Bombay from the order of acquittal passed by the Presidency Magistrate, Second Additional Court, Mazagaon, in a case in which the respondent along with his servant was charged with having committed breach of his license to sell toddy in that they kept it for sale adulterated with Chloral Hydrate in order to intensify its intoxicating effect.

2. The second clause of the license contains the following words :-

The Licensee shall keep and sell toddy unadulterated and undiluted as drawn from the tree, without the admixture of any foreign substance or liquid whatever.

The effect of that positive injunction in the licence is undoubtedly to prevent the adulteration of toddy for sale to the public.

3. The respondent licensee had obtained permission of the authorities to employ servants or managers to sell toddy for him and in pursuance of that permission had employed two servants for sale of toddy. It has not been denied that on October 3, 1937, when the Abkari Inspector made a raid on the respondent's booth, during the latter's absence on account of illness, three bottles of toddy which were removed under seal contained an admixture of Chloral Hydrate. In consequence both the respondent licensee and his servant, who was then present in the booth, were prosecuted under the provisions of Section 46 (e) of the Bombay Abkari Act. The manager or servant of the licensee, who was accused No. 2 at the trial, pleaded guilty to the charge and was convicted on his plea. The respondent denied his liability on the ground that he was unavoidably absent owing to illness and that he had taken all due and reasonable precautions against his servant adulterating the toddy. That defence was accepted by the learned Magistrate.

4. The provisions of the law which make adulteration of toddy in contravention of the permit or license an offence are contained in Section 46 (e) of the Bombay Abkari Act (Bom. V of 1878). The material provisions are to the following effect :-

Whoever, being the holder of a license for the sale or manufacture of any excisable article under this Act, or a person in the employ of such holder or acting with his express or implied permission in his behalf...keeps or exposes for sale any excisable article which is not of the nature, substance and quality...authorized by the terms of the license to be kept for sale by the holder of the license, shall be punished for...such offence,' etc.

Those provisions make the licensee and his employee or servant liable for the offence in question. But the licensee is exempted from liability for the act of his servant in that respect by Section 47 of the Act where he can establish that ' all due and reasonable precautions were exercised by him to prevent the commission of such an offence.' There is no doubt that the licensee would be liable under the express provisions of Sections 46 and 47, in the absence of the limitation contained in the latter section, for the act of the servant in adulterating toddy. It is therefore unnecessary in dealing with this case to invoke the principle of agency for rendering the master vicariously liable for the servant's default as was done in cases cited at the bar, such as Queen Empress v. Tyab Alli I.L.R. (1900) Bom. 423 : 2 Bom. L.R. 52 and Emperor v. Mahadevappa (1926) 29 Bom. L.R. 153. Nor is it necessary to draw presumption de jure from rules of interpretation in accord with convenience, reason, or justice, as was drawn in Commissioners of Police v. Cartman [1896] 1 Q.B. 655, on account of the fact that the law did not provide for machinery by which the person actually offending against the law could be convicted. Under the express provisions of the statute the master can escape liability not on the ground that adulterated toddy was offered for sale by his servant contrary to his orders or that the adulteration took place behind his back, or that the act was not within the scope of the servant's employment, but on the ground that the master had taken ' all due and reasonable precautions' against adulteration. The defence was that illness due to fever had rendered the master unable to attend his booth on that day, that the master had engaged two servants or managers to act as effective checks on one another, and that therefore he was not liable. The allegations as to illness and the employment of managers have not been denied on behalf of Government, and the learned trial Magistrate has rightly accepted them as true.

5. The question we have to decide is what is the degree of care and caution expected of a licensee to exempt him from liability for the act of his servant by virtue of the provisions of Section 47 of the Bombay Abkari Act. The section says :-

The holder of a license,... shall be responsible,... for any offence committed by any person in his employ or acting with his express or implied permission in his behalf under section... 46 as if he himself had committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence.

The language used by the legislature is very wide. The learned Assistant Government Pleader in support of the appeal has argued that the facts proved by the licensee are not sufficient under the above provisions to exempt him; for, to use his words ' he must under the law see to it that no loophole whatever was left for adulteration.' In other words it is suggested that the statute provides for an absolute guarantee by the licensee to protect purchasers of toddy against adulteration. That perhaps could be done by stocking toddy in casks of a type which would permit toddy being served to customers direct without the intervention of the servant, or by the licensee himself serving toddy or remaining present throughout the time of sale. As remarked by Chandavarkar J. in Emperor v. Jeevanji I.L.R. (1907) Bom. 611 : 9 Bom. L.R. 967, 'a statute should be construed not merely with reference to its language, but also its subject-matter and object.' There is no doubt that the whole object of the statutory rules and provisions . would be defeated if the sale of toddy could be controlled by the servant and the master evade liability on the mere plea that the servant was expressly prohibited from offending against the rules. That would afford no effective protection to the public against adulteration of this beverage. But in construing the provisions of the statute, regard must be had to the express terms of the limitation. If an absolute guarantee were intended, I find it difficult to explain the raison d'etre of the exemption clause in Section 47. Even if it did provide for such a guarantee, which in my opinion it does not, an enactment which expects the discharge of a duty by a licensee in that manner must always be regarded in the administration of the law subject to the maxim lex non cogit ad impossibilia aut inutilia. If in the interpretation the Court finds the duty either impossible of performance and beyond the normal capacity of a reasonable or prudent man, or when performance in the strictest language of the enactment is either idle or impossible, then the enactment must be understood as dispensing with the strict performance of that duty. I do not think that: the phrase ' all due and reasonable precautions ' implies ' all precautions' as suggested for the Crown. That would be an impossible construction. The phrase implies precautions that are reasonable or practical and due or necessary and which a prudent and sensible person would take in endeavouring to prevent transgressions of the kind in question in carrying out the object of the license. That is in my opinion the test laid down by Section 47. In that view of the law the licensee's liability must be decided according to the circumstances of each case. The learned Magistrate has, in my opinion, applied the proper test in the appreciation of the evidence in this case, when he held that the respondent had taken in the circumstances the precautions required by Section 47. We, therefore, think that the acquittal is correct and accordingly dismiss the appeal.

Somjee, J.

6. This is an appeal by the Government of Bombay against an order of the learned Presidency Magistrate, Second Additional Court, Mazagaon, Bombay, ordering the respondent to be acquitted under Section 46(e) of the Bombay Abkari Act (Bom. V of 1878). The respondent is the licensee of a toddy tree-foot booth at 10th Khetwady Lane, Bombay. He was charged along with the manager of that booth under Section 46(e) of the Bombay Abkari Act with the offence of exposing for sale toddy which was adulterated with Chloral Hydrate. The manager pleaded guilty to the charge and has been dealt with. The respondent pleaded that he was not liable to be convicted on the charge as he had taken all due and reasonable precautions to prevent the doing of the acts which would amount to a breach or breaches of the terms and conditions of the license. Under Section 46 of the Bombay Abkari Act the adulteration of toddy and exposing it for sale is an offence. Section 47 of the same Act provides that the licensee himself would be guilty of the offence committed by his servant or manager as if he himself had committed the same, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such an offence. The pure question of fact therefore involved in this case is whether the respondent has established to the satisfaction of the Court that he exercised all due and reasonable precautions to prevent the commission of such an offence. The respondent is the licensee of only one toddy tree-foot booth in Bombay. It has been proved to the satisfaction of the learned Magistrate that he employed two managers to conduct this toddy booth and it is not disputed that the appointment of two managers was by way of caution so that, as the learned Assistant Government Pleader concedes, it may be that they may supervise the work of each other. The respondent himself used to visit the shop every day until he fell ill about eight days prior to the detection of the adulteration of toddy in his booth. On account of his illness it was impossible for him to visit his booth.

7. It has been found by the learned Magistrate-and that fact is not challenged-that about three weeks prior to the raid in question another surprise raid was carried out in this booth and the toddy was found to be pure. That raid must be deemed to have confirmed the respondent that he had taken sufficient and reasonable precautions to prevent the commission of an offence in his booth by offering or exposing for sale adulterated toddy. The learned Magistrate states in his judgment that it is difficult for him to see what other precautions the respondent could have taken in the circumstances of the case. The learned Magistrate holds that accused No. 1 has established that he had taken all due and reasonable precautions to prevent the commission of such an offence in his booth. I think the conclusion arrived at by the learned Magistrate is correct. I, therefore, agree with my learned brother that this appeal should be dismissed.


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