1. This is an application in revision by the Municipal Board of Bareilly arising out of a conviction under Section 4, U.P. Prevention of Adulteration Act (Act 6 of 1912). Ram Gopal, the opposite party to this application, is described as a commission agent, and it has been found by the trial Court that he allowed a man named Hardwari to sell ghee at his shop on condition that he was paid commission out of the sale proceeds. On a certain day the sanitary inspector came and took samples of the ghee which was being exposed for sale at this shop, and upon analysis it was found to be 'grossly adulterated.' The Municipal Board thereupon prosecuted Hardwari and Ram Gopal under Section 4 of the Act, and in a summary trial they were both convicted, Ram Gopal being sentenced to pay a fine of Rs. 200 and Hardwari to pay a fine of Rs. 75. There was an appeal by Ram Gopal and in the result his fine was reduced to Rs. 30. Hardwari did not appeal.
2. Two points are taken in this application for revision. The first is that the Sessions Judge had no jurisdiction to entertain the appeal, and the second point is that there was no justification for reducing the sentence passed on Ram Gopal. As we have already said, the case was tried summarily and it is therefore obvious that no appeal lay: vide Section 414, Criminal P.C. It follows that the judgment of the Sessions Judge was without jurisdiction and must fee set aside. This disposes of the application of the Municipal Board. There remains the question whether Ram Gopal has been wrongly convicted by the trial Court, as pleaded by his learned Counsel. The trial Court has referred in its judgment to the case in Emperor v. Ram Gopal : AIR1936All865 , and the decision in that case has also been relied upon by learned Counsel for the Municipal Board who has argued this revision before us. The facts of that case were very similar to the facts of the case with which we are now dealing, and it was held by a learned Judge of this Court that the owner of the shop was liable to conviction. In that case She owner of the ghee was a man named Darshan Singh and the commission agent was a man named Ram Gopal. The learned Judge says:
Although the actual selling may have been done by Darshan Singh, it appears to me that the ex-posting for sale was done by Ram Gopal because the shop belonged to Ram Gopal and goods could not have been exposed for sale in that shop without his consent. Darshan Singh is apparently a villager and he has no connexion with the shop of Ram Gopal, and it is Ram Gopal who allowed the ghee to be exposed....
3. The learned Judge then finds that apart from exposing the ghee for sale, the commission agent at least abetted the sale. And finally he expresses the opinion that he actually took part in the sale, since the goods were sold in his presence and the sale consideration included his commission. Now, the opposite party in the case before us, though described as a 'commission agent,' was not a commission agent in the ordinary sense, for, admittedly he did not himself sell the ghee on behalf of the owner, but allowed the owner to sell it on the premises of his shop, the consideration for such license being a commission fixed by reference to a percentage of the sale price. In the circumstances we find it difficult to hold that he himself was actually taking part in the sale. He was, we think, a mere licensor of a right to sell ghee on his premises. There is no evidence before us that Ram Gopal exercised any control over Hardwari and still less that he had any property or other interest in the ghee sold by Hardwari. We are, however, of opinion that the opposite party was 'exposing' the ghee for sale. It seems to us that if a 'commission agent' of this sort, who has a shop at a particular place, allows another person to offer ghee for sale at his shop and in his presence and with profit to himself, the only reasonable view to take on the facts is that the owner of the shop is 'exposing' the ghee for sale equally and jointly with the owner of the ghee, who is the vendor. But this does not conclude the matter. The opposite party in his defence disclaimed all responsibility for the ghee and by implication pleaded ignorance of the fact of adulteration. There is, in fact, no allegation that the opposite party was aware of the adulteration of the ghee. Section 6 of the Act provides that
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....
4. As we read this section, it means that, when a 'vendor' is prosecuted under Section 4, such plea of ignorance cannot be set up on his behalf. But there is nothing in the section to preclude a person who is not the 'vendor,' but who is exposing the goods for sale, from pleading that he himself was ignorant of the quality etc., of the ghee which the vendor was offering for sale. And this plea would equally be available to a person who is accused of abetment of sale. In our opinion, in order to justify the conviction of a person who is not himself the actual 'vendor' it is necessary to prove the existence of circumstances from which it can reasonably be inferred that he was aware of the adulteration. No such circumstances have been shown to exist and the opposite party is therefore entitled to an acquittal. It may be that the construction we put on the word 'vendor' in Section 6 of the Act is a narrow one, and that it was really intended that it should cover not only the actual 'seller' but the other classes of persons also who are mentioned in Section 4(1). But, on the other hand, the Legislature appears to have deliberately chosen to confine the prohibition contained in Section 6 to a 'vendor' and we do not feel justified in extending that word beyond its ordinary significance of 'one who sells.' If that is so, then, on the principle of exclusio unius inclusio alterivs the section appears to us to indicate that those classes of persons mentioned in Section 4, other than an actual seller, are not to be precluded from setting up a plea of ignorance of adulteration. Accordingly, in the exercise of our revisional jurisdiction, we set aside the conviction of the opposite party. The fine, if paid, will be refunded.