1. These are applications in revision, in which a common question of law arises, by persons who have been convicted tinder Section 4, U.P. Prevention of Adulteration Act, 1912.
1a. In Criminal Revision No. 177 the relevant facts as found by the learned Magistrate can be stated shortly. Brij Mohan Das is the proprietor of a shop known as the Producing Company, Benares, and Jagan Nath Prasad is an employee who was in charge of the shop on 18-2-1946. On that date the Sanitary Inspector of the Benares Municipality visited the shop in company with the Health Officer and purchased a sample of mustard oil which was offered for sale in the shop. The learned Magistrate has found as a fact that the substance sold to the Sanitary Inspector was sold under the description of pure mustard oil. The sample taken by the Sanitary Inspector was sent to the Public Analyst. The report of the Public Analyst appears to be no longer on the record, but it is not in dispute that he found that the mustard oil contained a substantial adulteration of rape seed oil. Jagan Nath Prasad was convicted for exposing for sale and selling, and Brij Mohan Das for manufacturing, the oil in question, and an application in revision to the learned Additional Sessions Judge of Benares was rejected.
2. On behalf of Jagan Nath Prasad it has been argued that he has committed no offence as the sale of the mustard oil was not to the prejudice of the purchaser, reliance being placed upon proviso (b) to Sub-section (1) of the Act which provides that no article shall be deemed to have been sold to the prejudice of the purchaser:
(b) where in the process of production, preparation or conveyance of such article of food or drug some extraneous substance has unavoidably become mixed therewith.
3. It is said that rape seed and mustard seed have certain marked similarities and that a small quantity of rape seed oil is almost invariably found in mustard oil. That this is so has been accepted by the lower Court as correct, but it has held that the Public Analyst's report makes it clear that the proportion of rape seed oil in the sample of what was sold as pure mustard oil is much more than would be found in the ordinary course. In taking this view, the Magistrate was, in my opinion, clearly right, and there is therefore no ground for interference in revision. In so far as the charge was in respect of 'exposing for sale' the oil no question of prejudice to the purchaser arises, for that phrase qualifies only the sale of an article of food or a drug which is not of the nature, substance or quality demanded by the purchaser. The case of Brij Mohan Das, the proprietor of the shop, Stands however on a different footing. The learned District Magistrate convicted Brij Mohan Das for having manufactured the oil - that is to say for having manufactured an article of food which was not of the nature, substance or quality which it purported to be. Now there is no evidence that Brij Mohan Das did in fact manufacture this particular oil, and his only connexion with the transaction is an alleged telephone conversation which he had with Jagan Nath Prasad. There is evidence that the latter had a telephone conversation with someone, but Brij Mohan Das has denied that it was with him, and there is no evidence that he was the person at the other end of the line. There is therefore, no evidence directly implicating Brij Mohan Das in the manufacture or sale of the oil - that is, I think, conceded by the Crown - and consequently his conviction cannot be upheld on the ground which satisfied the learned Magistrate. It has however been argued by the Crown that the U.P. Prevention of Adulteration Act, imposes an absolute liability upon an employer, that the latter is therefore responsible for the act of his servant, and that on this ground the conviction should be maintained.
4. The same point has been urged by the Crown in the second ease, Cri. Revn. No. 289, in which Chiranji Lal, the owner of a milkshop, and Shanti Prasad his salesman, have both been convicted in respect of a sale by the latter of adulterated milk. Chiranji Lal was not present when the milk was sold, and his defence was that the adulteration was done by his salesman contrary to his instructions. The question thus raised is one of importance and I have had, if I may say so, the benefit of listening to an interesting argument on both sides.
5. Now the relevant part of Section 4 is as follows:
4.(1) Whoever sells to the prejudice of the purchaser any article of food, or any drug which is not of the nature, substance, or quality of the article or drug demanded by such purchaser or sells...any article of food or any drug which is not of the nature, substance, or quality which it purports to be....shall be punished...
This section, must be construed in the light of the provisions of Section 6 the relevant portion of which says:
6. In any prosecution under Section 4 it shall be no defence to allege that the vendor was ignorant of the nature, substance or quality of the article or drug sold by him....
6. I think there can be no doubt that the word 'vendor' in Section 6 means a person who sells, and the question which I really have to decide - and it is the only one which I am deciding - is whether the words 'whoever sells' in Section 6 and 'the vendor' in Section 4 mean the actual seller, or 'whether they mean the person on whose behalf the sale is made.
7. Now a very similar question was considered in the English case in Brown v. Foot (1892) 17 Cox. C.C. 509 which was an appeal from a conviction under Section 6, Sale of Food and Drugs Act, 1875. That section, like Section 4, U.P. Prevention of Adulteration Act, made it an offence to sell, to the prejudice of the public, any article of food or any drug which was not of the nature, substance or quality of the article demanded by the purchaser. The appellant had been convicted for the act of his salesman who had sold milk which he had adulterated with water without the knowledge of his master. In the course of his judgment, Hawkins J. said at p. 513:
I think myself that the master for all purposes must be deemed to be the seller of the milk; that is to say, it is impossible to say that he is not a seller of the milk. It may be said that the person who actually deals with the milk, and sells it, and delivers it for the master, may also within the provisions of this Act of Parliament be the seller of the milk; but at the same time, even if he is so, as I think he is, I think that the master himself in also the seller of the milk.
8. On the following page the learned Judge pointed out that the word 'knowingly' had been excluded by the Legislature from Section 6, as the word has been similarly excluded from Section 4, U.P. Act, and it may be presumed that such exclusion was deliberate for otherwise the master could protect himself by saying
although it is perfectly true my servant sold adulterated milk, and I received the proceeds of the milk which he so sold, yet I am not to be rendered responsible, because you failed to prove I had any cognisance, or that I was conniving at the wrongful act of my servant.
Wills J. in the same case put the matter in more general terms when he said at p. 516 of the report:
Section 6 upon which this question arises imposes a positive prohibition against sale of adulterated articles. That implies, to my mind, not only that every person should take care not to do the physical act of selling, but that he should take care that a sale is not effected by persons whom he employs, for the purpose of selling substances that contravene the provisions of the Act of Parliament. That this servant, in the present case, was employed in the general business of selling milk for his master, there cannot be any doubt. If so, I do not see any reason to excuse the master for having broken, the Act of Parliament by effecting, through that unfaithful servant, it may be, a sale which was contrary to the Act of Parliament, because he does not sell it himself. He is bound not only to sell it himself, but to take care that other people do not sell it for him in such a condition as to come within Section 6. If he does not take that care, he breaks the Act of Parliament
9. This decision was followed in Parker v. Alder (1899) 1 Q.B. 20, an even stronger case in which the adulteration was not by an employee of the respondent but by the servants of a railway company. In. the course of his judgment in that case Lord Russell L.C.J. pointed out if the respondent were to be relieved from responsibility a wide door would be opened for evading the beneficial provisions of this legislation. Brown v. Foot (1892) 17 Cox. C.C. 509 has been applied in India by the Calcutta. High Court in Sew Karan v. Corporation of Calcutta ('12) 39 Cal. 682 in a case under Section 495, Calcutta Municipal Act, a section in almost the same terms as Section 6 of the English Act, from, which it was derived.
10. I think that these decisions are directly in point, and I am therefore of opinion that the words 'whoever sells in Section 4 and the expression 'the vendor' in Section 6, U.P. Prevention of Adulteration Act, include the person on whose behalf the sale is made. That they include also the employee, the person who 'performs the physical act of transferring the adulterated thing to the purchaser admits, I think, of no doubt: Hotchin v. Hindmarsh (1891) 2 Q.B. 181.
11. Both applications, therefore fail, but as the sentence imposed by the learned Magistrate on Brij Mohan Das in Cri. Revn. No. 177 was based upon a finding, which I have held to be unwarranted, that he had connived at the offence, I reduce the sentence to one of a fine of Rs. 50 or in default, to rigorous imprisonment for the period of fourteen days.
12. I see no reason to interfere with the sentences imposed in Cri. Revn. No. 289. Each of the applicants has admitted one or more previous convictions, and for the offence of selling adulterated milk the severe sentences were fully justified.