H.R. Krishnan, J.
1. The applicant who is the owner of a business in milk has been convicted under Section 16(1)(b) of the Prevention of Food Adulteration Act because his servant, who in his absence was taking away some milk for sale was found to have prevented the Food Inspector from taking a sample as authorised by this Act. There being no evidence either of his presence or of abetment of his servant in this obstruction, the master who is the applicant here contended that he could not be convicted. The lower Courts rejected this pleading on the ground that the vicarious liability of the master was absolute and accordingly sentenced each of the two to a fine of Rs. 200 with imprisonment in default.
2. The question before us is whether in the absence of direct evidence of abetment in the prevention of the taking of the sample the absentee principal can be held liable under Section 16(1)(b) of the Act just as he would be held liable under Sub-section 1 (a) and 1 (g) of the same section.
3. Broadly speaking, the law has recognized what is popularly called the 'vicarious liability' of the principal in legislation regarding adulteration of food, medicines and the like. Whether in regard to every act that is punishable the master would be liable by the very fact of that relationship, for everything done by the servant is a question that can be answered only with reference to the wording of the penal provision concerned. While holding ;
There is no substance in the argument of the appellant's Counsel that at least the accused No. 2 who is the master cannot be held liable for the act of his servant. The argument is that under Section 7 of the Food Adulteration Act a master can be held liable only if the servant sells adulterated milk on his behalf and not for any other act. The master is jointly and severally liable for all wrongs committed by his servant in the ordinary course of the duty.
the learned Sessions Judge has laid down the rule far too widely. He seems almost to be thinking of the liability of an employer for the tort committed by the servant in course of the employment. But in a penal provision in our (sic) one has to examine the express words of the statute applicable.
4. Now Section 16(1) of the Act with which we are immediately concerned has several sub-clauses and begins:
16 (1) If any person:
(a) whether by himself or by any person on his behalf imports...sells...any article of food in contravention of the provisions of this Act or of any rule made thereunder, orThe point to note is that the words 'whether by himself or by any person on his behalf' which is the key to the vicarious liability is within Sub-clause (a) and is not generally applicable to all the sub-clauses. In the latter event the sub-clause must have begun -
16(1) If any person, whether by himself or by any person on his behalf-
(a) imports ... ...Thus on the face of it Sub-clause (b) which runs thus-
(b) Prevents a food inspector from taking a sample as authorised by this Act, or' is not governed by the words importing vicarious liability. Nor am I persuaded by the mere fact of punctuation, because there is another Sub-clause (g) in which the wording for vicarious liability is again introduced,
'(g) whether by himself or by any person on his behalf gives to the purchaser a false warranty in writing in respect of any article of food sold by him.
Which would not be the cage, if that phrase were of general application. Thus the punishment under Sub-clause (b) unlike the punishment under sub-clauses (a) or (g) cannot be imposed on the absentee principal unless there is evidence of actual complicity. The principle of vicarious liability which certainly applies to the acts mentioned in Sub-clauses (a) and (g) of sub-a. (1) does not extend to anything that comes under Sub-clause (b).
5. Any doubt in this regard is cleared by a reference to the wording of Section 7, where we have a wording appropriate for the creation of vicarious liability:
7. No person shall himself or by any person on his behalf manufacture for sale, or store, Bell or distribute.. .. .
But it does not mention any prevention of sample taking. Section 10 lists the powers given by the law to a food-inspector among which there is (1) (a) regarding the taking of samples. There are other provisions enabling him to enter, inspect or in appropriate Circumstances break open doors or containers. If he is prevented from or obstructed in doing any of these acts, Section 16(1)(b) alone provides for the punishment; we cannot seek the help of Section 7. There are certainly circumstances in which the principal, that is, the master in a Case like the present one, may be liable under Section 16(1)(b); that could be on the basis of acts of actual prevention or obstruction, or the abetment of such prevention or obstruction committed by others.
6. The result is that the conviction and sentence on Ranchhod-applicant No. 2 are set aside. The fine if already paid must be refunded.
7. The application of the other applicant Ghisalal has been dismissed at the motion stage.