1. This is a reference by the learned Sessions Judge of Muzaffarnagar recommending that the conviction and sentence passed upon two persons Murari Lal and Meher Chand for having committed an offence under Section 17, U.P. Prevention of Adulteration Act (Act 6 of 1912) should be set aside. The material facts of the case can briefly be stated as follows: Meher Chand is the munim and general manager of a firm styled Sarup Lal Mutsuddi Lal which carries on business at Muzaffarnagar. The firm is owned by Murari Lal who has a son named Bul Chand who was also prosecuted for the same offence but was acquitted by the learned trying Magistrate. It appears that Meher Chand obtained a licence for selling ghee on behalf of the firm. It is not contested that the licence which he so obtained related to a shop No. 94 and had nothing to do with any other building or shop No. 93. On 24th May 1938 the Health Officer of the Muzaffarnagar Municipal Board visited shop No. 94 and asked Meher Chand to let him inspect shop No. 93 which he suspected was being used for storing ghee. Meher Chand said that he did not have the key of shop No. 93 and went away to inform his master Murari Lal. After some time Meher Chand returned with Bul Chand, the son of Murari Lal, who had a bunch of keys with him. Bul Chand told the Health Officer that shop No. 93 was not being used as a godown for storing ghee and the Health Officer had therefore no right to inspect it. Being thus denied access to shop No. 93, the Health Officer left the place and on 27th May 1938 a Sanitary Inspector named D.H. Jafri, who accompanied the Health Officer, made a written complaint to the Sub-divisional Magistrate charging Bul Chand with an offence under Section 17, U.P. Prevention of Adulteration Act for having committed a breach of Rule 8 framed under Section 16 of the Act. Now Section 16 runs as follows:
The Local Government may by Notification prescribe that no person shall sell or offer or expose for sale or manufacture or store for sale any specific article of food or drug except under a licence containing such conditions and given by such authority as the Government may by the said Notification prescribe.
2. In the exercise of this power the Local Government has issued a Notification No. 912-XVI (P.H.)-332-1927. By this notification the Local Government has framed certain rules which are called 'Butter, Ghee and Fat Licencing Rules, 1930.' Rule 8 of these rules runs as follows:
A licence-holder shall render all possible facilities for the inspection of his shops, godowns or any other place used for storage, manufacture or sale of articles for which he holds a licence and also for the taking of samples for analysis at all reasonable times to the Medical Officer of Health or to any other officer authorized by a local authority or Government for the purpose.
3. It has been stated above that Bul Chand was the only person charged under Section 17, U.P. Prevention of Adulteration Act in the complaint made by D.H. Jafri on 27th May 1938, but it appears that on 2nd July 1938 the Health Officer of the Muzaffarnagar Municipal Board addressed a letter to the Sub-divisional Magistrate suggesting that Murari Lal and Meher Chand were equally guilty under Section 17 and praying that they should also be summoned to stand their trial for that offence. Acting upon this letter the learned trying Magistrate summoned these two persons with the result that they were tried jointly with Bul Chand. In the end however the learned trying Magistrate acquitted Bul Chand but found Murari Lal and Meher Chand guilty. Meher Chand and Murari Lal went up in revision to the learned Sessions Judge of Muzaffarnagar who has made this reference with the recommendation that their conviction and sentence should be set aside.
4. The point taken by the learned Judge as the sole basis for his recommendation is that in summoning Meher Chand and Murari Lal to stand their trial in consequence of the letter addressed by the Health Officer to him in the circumstances stated above the learned trying Magistrate must be deemed to have taken cognizance of the offence so far as these two persons were concerned under Section 190(1)(c), Criminal P. C, and it was consequently incumbent upon him under Section 191, Criminal P.C. to inform the accused persons that they had a right to have the case transferred for trial to some other Court and there being nothing to show that this duty was really performed by the learned trying Magistrate the trial must be held to be invalid. The question whether the letter written by the Health Officer to the Sub-divisional Magistrate must be deemed to be 'information received from any person other than a police officer' and not merely a continuation of the complaint originally made to the Sub-divisional Magistrate by D.H. Jafri is not quite free from doubt. If the former alternative is accepted the learned Judge is obviously right in holding that the trying Magistrate took cognizance of the offence under Section 190(1)(c), Criminal P.C. If the other alternative is correct then that objection cannot validly be taken. I do not however propose to discuss this question at all because I find that the recommendation made by the learned Judge can be supported on another and a much stronger ground. The ground is a very simple one. The prosecution rests entirely upon the allegation that a breach of Rule 8 framed under Section 16 of the Act was committed by Meher Chand. The evidence on the record also points to the same conclusion except that it also involves Bul Chand the son of Murari Lal. Now Rule 8 is concerned only with a licence-holder and the question which arises for consideration is whether in the present case Meher Chand can be rightly described as the licence-holder within the meaning of Rule 8. It is true that Meher Chand made the application for the licence but it was on behalf of the firm of Sarup Lal Mutsuddi Lal. He made the application only in his capacity as the servant of the firm. It is admitted that the proprietor of the firm is Murari Lal. The licence itself contains a description of the licensee and from that description it would appear that the licence had been given to the firm of Sarup Lal Mutsuddi Lal situate at No. 94, Sabzi Mandi. This description does not apply at all to Meher Chand. The fact that he was in the service of the firm as a munim or agent cannot in my judgment alter the legal position. Upon the fact mentioned above the licence-holder could be nobody else than Murari Lal, the proprietor of the firm Sarup Lal Mutsuddi Lal to which licence had been issued. It is evident therefore that the breach of Rule 8 upon which the prosecution rests was committed by Meher Chand and not by the licence-holder. Under the rule the duty of rendering all possible facilities for inspection has been laid specifically upon the licence-holder and nobody else. It is only the licence-holder who can be penalized under Section 17 of the Act, if he commits a breach of Rule 8 framed under Section 16 of the Act. Any other person, what ever his relation to the licence-holder may be, cannot be rightfully charged with an offence under Section 17 of the Act for committing a breach of Rule 8 for the simple reason that the rule in question does not cast any duty upon him.
5. The next question which arises for consideration is whether Murari Lal himself can be deemed to have failed to render all possible facilities for inspection within the meaning of Rule 8 because his servant and munim Meher Chand acted as alleged and proved by the prosecution. In view of the fact that there is no specific provision either in the Act or in the rules framed under Section 16 making a master liable for any act done by his servant or agent I think the answer must be in the negative. Such specific provisions are to be found, e.g. in the Excise Act, and it is upon the basis of those provisions that a master is punishable for an excise offence even though the offence itself may have been committed by his clerk, servant or agent. It is not suggested by the prosecution in this case that Murari Lal himself was present at the shop and that he did anything to prevent the Health Officer from inspecting shop No. 93. In fact it was specifically pleaded by Murari Lal that he was away from Muzaffarnagar when the incident in question took place and returned home some time in the evening. That evidence does not appear to have been believed by the learned trying Magistrate, but the point remains that there is no evidence on the side of the prosecution to rebut that case. In these circumstances I think Murari also could not be rightfully prosecuted under Section 17 of the Act. For these reasons I accept the reference made by the learned Sessions Judge and set aside the conviction and sentence passed upon Murari Lal and Meher Chand. The fine, if any, paid by them shall be refunded.