H.R. Krishnan, J.
1. This is an application in revision from the concurrent decisions of the lower Courts convicting the three applicants under Sections 7 and 16(i) of the Prevention of Food Adulteration Act and sentencing each of them to a fine of Rs. 1000 with imprisonment in default. The applicants Nos. 1 and 2, who are father and son, are the owners of shop selling food-grains and ghee, inter alia, while applicant No. 3, who is also a son of Devandas, has 'been described as a servant of the shop. Actually, he is the person who sold one quarter seer of ghee properly socalled to the Food Inspector, Dr. Trivedi, on the 6th October, 1980 which on analysis was found to be below the standard and, as the data show, very much below the standard prescribed for ghee. Accordingly, he and the owners were prosecuted and convicted. The defence on facts was that the shop had been licensed to sell only what is called vegetable ghee and not ghee properly so called. The Food Inspector, however, was very much in need o it, and requested Narayandas to procure a quarter seer somehow and from somewhere. Accordingly, Narayandas brought it from his residence which was in the same building but on the upper storey while the shop; was on the lower. He took the price all right, but it was not sale at the shop but was really a favour shown to the Food Inspector.
2. The sale was of course by Narayandas as the price had been taken and, as the panchnama shows, it was a sale at the shop. But all the same the applicant examined two witnesses including one of the panchas, in support of his story. The Court rightly disbelieved it and held that the sale was at the shop of ghee kept for the purpose of sale. Whether or not there was a separate licence for selling ghee at the shop and whether there was a licence given by the municipality for the sale of vegetable gone at that place, are questions which really do not arise for consideration; the crucial issue being whether the ghee was sold, which admittedly it was, whether it was at the shop out of stock kept there for the purpose of sale, which the Court has found on the facts.
3. The two points of law canvassed here are firstly, that the Food Inspector had contravened the requirements of Section 10(7) of the Prevention of Food Adulteration Act, the provisions which are meant to protect citizens from victimisation by overzealous or evil minded Food Inspector. Secondly, whatever may be the position in regard to Narayandas who actually sold the ghee, this was not a case in which the two other applicants could be held vicariously liable. This was because ghee was not one of the articles meant to be sold at the shop and the servant's conduct in selling it was so far outside the scope of the business that there could be no vicarious liability at all.
4. Ground No. I : Taking the first, before examination whether or not the provisions of Section 10(7) of the Prevention of Food Adulteration Act are mandatory, or directory, we have to make sure whether any of them have been contravened by the Food Inspector in the instant case. If there is no contravention or omission of the requirements of this section, it would be obviously unnecessary for us in this case to decide whether they are mandatory or whether they are only directory. On the face of it, there is altogether no breach but the arguments in this Court have been lengthy and highly ingenious so that they call for examination at some length. That Section (i. e. Section 10) runs:
10(1). A Food Inspector shall have power (a) to take samples of any article of food from any person selling such article ;
(2).... to (6)....
(7) Where the Food Inspector takes any action under Clause (a) of Sub-section (I)...he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.
This clearly means that the Food Inspector shall record his proceedings then and there; he shall further call upon two persons, who should obviously be respectable persons of that locality (of the type who would be called to witness a house search) and get them to sign the written proceedings as witnesses. These proceedings should be part of the record available for scrutiny by the Court. There are, however, circumstances in which the Food Inspector may he excused from calling such witnesses and taking their signatures on the proceedings: for this, he should satisfy the Court, that it was not possible for him either to call them or having called them it was not possible for him to make them sign his proceedings. The use of the words 'as far as possible' might make it a provision, though very important, still of a directory rather than of a mandatory nature, but that is not what we are immediately concerned with. What we are concerned with is that this Section provides for the preparation of a record or memorandum if one likes to call it, of the Food Inspector's proceedings signed whenever possible, by two respectable residents of the locality. It is usual in these parts to call such witnesses 'panchas' and the proceeding 'panchnama'. In the instant case there has been a proceeding of this nature, signed by the witnesses one of whom in fact Hukumchand has come as a witness on the side of the accused and made certain statements that the lower Courts have disbelieved.
5. The gravamen of the applicant's case is that this report prepared under Section 10(7) and signed by the two witnesses should be sent in original to the Food Analyst along with the sample: failure to do so, which is of course admitted by the Food Inspector, is a non-compliance with the provisions of Section 10(7). But this does not arise either directly or by implication out of the Section (the relevant parts of which have been quoted above) but the applicants seek to derive it from Rules 17 and 18 in the Prevention of Food Adulteration Rules, 1955 made by the Central Government under Section 23.
Rule 17:- Containers of samples how to be sent to the Public Analyst.- The Container of sample for analysis shall be sent to the public analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the public Analyst.
Rule 18:- Memorandum and impression of seal to be sent separately:- A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or any person authorised by him.
Rule 17 speaks of a memorandum under Form VII which is given in the appendix to the rules. Besides the addresses, it has to contain the serial number, name of the vendor, date and place of collection, nature of articles submitted for analysis and nature and quantity of preservative, if any, added to the sample. None of these has anything to do with Section 10(7).
6. The memorandum mentioned in Rule 18 is no other than the memorandum in Form VII mentioned in the previous rule. If there is any doubt, it is cleared by paragraph 2 of the memorandum itself in Form VII.
A copy of this memorandum and specimen impression of the seal used to seal the packet of sample is being sent separately by post/hand.
This is nothing more than the usual course of prudence in sending the sealed packet by post or by messenger and separately a copy of the covering letter and the specimen seal impression so that the addressee can verify if the seal bad broken in transit and satisfy himself that there has been no mixing up. Be that as it may, neither Rule 17 nor 18 nor form VII implies that the memorandum or the report made under Section 10(7) should be sent in original to the analyst. Most of the particulars in the memorandum under Form VII would be those contained in the report prepared under Section 10(7), It might even be convenient to send a copy but there is altogether no necessity either on the ground of convenience or legal requirement to send to the Food Analyst the original report signed by the panchas.
7. The calling of the panchas is a measure of assurance to the vendor that there is no mistake about the shop or the identity of the person offering for sale or actually selling the food material. But the real guaranty against any tampering by the Food Inspector, whether by mistake or with malice, in the sea ed sample actually handed over to the vendor. Th'S guaranty given by the presence of the panchas is obviously of little importance when the vender him-sell signs and admittedly signs the proceedings and as for other the guaranty, it is entirely his choice whbther or not to ask for the examination of the saniple given to him. In this case, he did not.
8. The ruling reported in State v. Sadhu Singh has been cited as authority for the applicants' contention. But in that case, no witnesses had been called and made to sign the Food Inspector's proceedings under Section 10(7) nor was there any satisfactory explanation why it was not possible in the circumstances. Accordingly, the Court held that the results of the analysis were not acceptable. In the instant case, the witnesses have been called and made to sign. From the examination of Dr. Joshi, it appears (though it is by no means clear) that the sample impression of the seal and the copy of the memorandum in Form 7 were not sent separately as required by Rule 18. The cross-examination has been directed not to clear this point, but to bring out that theoriginal panchnama signed by the witnesses had not been sent to the analyst which is of course true. The sending of a copy of the covering letter and specimen seal impression is to guard against the possibility of the breakage of the seal and the change of the sample during postal transit. It has nothing to do with guarding against a possible tampering by the Food Inspector himself. For that the guaranty is in the sample being given to the vendor.
9. Another kind of omission has been suggested. It seems to be practice that the three samples sealed in the presence of the panchas are also labelled with slips that contains the signatures. This is not an express requirement of Section 10 but it is understandable that when the labels are themselves signed by the Eanbhas there is an additional assurance that they are been taken and sealed in accordance with the rules. At any rate, the labels of the samples given to the vendor in this case had been prepared by the Food Inspector but not signed by the panchas. But I do not see what bearing it has on Section 10(7). The proceedings have been signed by the vendor himself and also the panchas. The samples having remained with the vendor, there is obviously no possibility of its having been tampered with. Thus the entire argument based upon an alleged breach of the provisions of Section 10(7) is pointless because there has been no such breach. In these circumstances, it is not necessary in the instant case to consider whether that Section is really mandatory and not merely directory. That can be done when an appropriate case comes before this Court.
10. The second point is on behalf of the two applicants other than Narayanadas viz., Lalchand and Devandas the owners of the shop who were not present at the time of the sale. Vicarious liability is a basic principle in law against food adulteration. This has been brought both by the wording of Section 7 itself which runs.
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute...etc... etc.
and also by the ruling in Sarjoo Prasad v. State of Uttar Pradesh : 1961CriLJ747 . The argument of the applicant is not against the principle of vicarious liability as such but against its application in the in stant case. According to Lalchand and Devandas, ghee was not a commodity meant to be sold at the shop. They had been really licensed to sell what is called vegetable ghee which has nothing to do with ghee proper, it being hardened vegetable fat. Thus if Narayandas sold ghee, he was doing an act so far wide of the scope of his employment that such an act could not be foreseen or guarded against by the owners of shops.
11. It can be accepted in principle that in the event of the employee or agent doing something altogether unconnected with the nature of the employment, the absentee principal may not be vicariously liable. Ultimately it would depend upon the distance between the particular act of commission by the agent and the nature of the employment. But this does not apply to the instant case. It was a shop for sale of provisions, and licence or no licence, ghee was on sale there. The so-called vegetable ghee was also on sale but we are not concerned with it the sample collected not being in fact 'vegetable ghee'. The witnesses who have supported the applicants in the trial Court, have themselves stated that ghee was sold at that shop. One of them even said that he bought ghee there. So it is clear that ghee is one of the articles usually on sale at that shop. Thus on that data, in the absence of the owners of the shop, the servant was selling an article which was usually sold. Therefore, it is a case for vicarious liability.
12. The sentences do not call for interference. The application is dismissed.