Hardayal Hardy, J.
(1) This is an appeal by special leave against a judgment by which Shri Bhagwan Dass has been acquitted by an Additional Sessions Judge. Two persons, namely, Shri Kasturi Lal and Shri Bhagwan Dass were tried by a Magistrate 1st Class for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. Each of them was convicted and sentenced to rigorous imprisonment for a period of six months and to a fine of Rs. 1000.00. In default of payment of fine each was to suffer further rigorous imprisonment for a period of four months.
(2) On appeal, the learned Additional Sessions Judge maintained the conviction of Shri Kasturi Lal but acquitted Shri Bhagwan Dass. The sentence of Shri Kasturi Lal was also reduced to imprisonment for a period of two months and to a fine of Rs. 500.00. In default of payment of fine he was sentenced to further rigorous imprisonment for a period of one and a half months.
(3) Against the judgment of acquittal in the case of Shri Bhagwan Dass the Municipal Corporation of Delhi has come up in appeal. It is also stated that a criminal revision was filed against the reduction of sentence of Shri Kasturi Lal, but it was summarily dismissed by M.R.A. Ansari J. and the only question now raised before us is one relating to the acquittal of Shri Bhagwan Dass.
(4) The facts are that on 8-4-1970 at 12,30 P.M., Food Inspector O. P. Khurana (Public Witness I) visited the premises of Messrs Deepak Fruit Ice Cream at Bali Nagar Delhi and found Kasturi Lal who introduced himself as a Salesman-cum-Sales Manager of the firm. After disclosing his identity, the Food Inspector purchased chocolate Ice Cream weighing 900 grams on payment of Rs. 16.00 vide receipt (Ex. PA). A notice (copy Ex. PB) was served and the ice cream was divided into three equal parts. Each part was put in a clean and dry bottle and sealed after fastening the stopper. One sample was handed over to Kasturi Lal and an inventory (Ex. PC) was prepared. The other bottle was sent to the Public Analyst along with memo (Ex. PD). Exhibits Pa, Pb and Pc were got signed and thumb-marked by Kasturi Lal. These were also attested by public witnesses who were present on the occasion.
(5) The Public Analyst, vide his report (Ex. PE) declared that the sample was adulterated due to 4.7 excess in Butyro refractometer reading at 40C and Baudouin test slightly positive in regard to the extracted fat. On receipt of this report, a complaint was filed against Kasturi Lal as Salesman and Bhagwan Dass as active partner of the firm and the firm itself under the authority of the Municipal Corporation of Delhi.
(6) There is no dispute as to the liability of Shri Kasturi Lal as a salesman. He has been convicted and sentenced. It is also not open to the counsel for the Municipal Corporation to raise the question of sentence in the case of Kasturi Lal as the criminal revision filed by the Corporation has been dismissed by a learned Single Judge of this Court. But so far as Bhagwan Dass is concerned the question of his conviction and sentence is a't large before us.
(7) The prosecution produced a copy of a form A (Ex. Public Witness 3/1) showing that Messrs. Deepak Ice Cream Factory was a partnership firm and Shri Bhagwan Dass and Smt. Rukmani Devi were the partners. Shri Bhagwan Dass denied all the allegations made against him but he admitted that the firm was got registered under the Delhi Shops and Establishments Act, 1954. He however submitted that he had ceased to be a partner a couple of month's thereafter. The learned Magistrate took the view that according to the Food Inspector Shri O. P. Khurana (Public Witness 1), Kasturi Lal had represented that Shri Bhagwan Dass was an active partner of the firm. Kasturi Lal denied this assertion and the learned Addl. Sessions Judge rightly took the view that no legal value could be attached to this assertion on the part of Kasturi Lal who had himself attempted to exculpate himself by staling that he himself had sold chocolate and not the chocolate ice cream. When one of the two accused who are being jointly tried attempts to exculpate himself any statement made by him which has the effect of inculpating the other accused is obviously not admissible in evidence.
(8) Learned Magistrate also found that Shri Mohan Singh who was a Lower-Division Clerk in the Shops and Establishments Office of Labour Department had produced a copy of form A (Ex. PW3/1) and that document showed Bhagwan Dass not only as one of the partners along with Smt. Rukmani Devi but it also showed Shri Bhagwan Dass as manager of the firm. Learned Adl. Sessions Judge brushed aside this evidence against Shri Bhagwan Dass by observing that the original document had not been put to Shri Bhagwan Dass at the time of his examination under Section 342 Criminal Procedure Code in order to elicit if it was signed by him. Learned Addl. Sessions Judge also observed that Ex. Public Witness 3 /1 evidenced the position as it prevailed on 3-4-1969 while the sample of ice cream was lifted on 9-4-1970. The version of Bhagwan Dass was that he was once a partner of the firm but he had ceased to be a partner after about two months from the date on which the form Ex.PW3 /1 was registered with the Shops and Establishments Office. In that view of the matter, the Additional Sessions Judge held that the conviction of Bhagwan Dass could not be sustained.
(9) It appears to us that the learned Additional Sessions Judge was fallen into a serious error when dealing with the question of Bhagwan Dass's connection with the partnership firm. Under Section 5(l) of the Delhi Shops and Establishments Act, 1954 it is the duty of an occupier of every establishment to send to the Chief Inspector, a statement in a prescribed form together with such fee as may be prescribed. The form is to contain the information given in clauses (a) to (f) of that section. Under sub-section (2) the Chief Inspector, on being satisfied about the correctness of the statement, is required to register the establishment in the Register of Establishments in such manner as may be prescribed and has to issue in the prescribed form a registration certificate to the occupier.
(10) Section 6 requires that it is the duty of the occupier to notify the Chief Inspector on a prescribed form any change in respect of any information contained in his statement under sub-section (1) of Section 5 within 15 days after the change has taken place. It is on receipt of such notice and the prescribed fee and the Chief Inspector being satisfied about its correctness that a change has to be made by him in the Register of Establishments in accordance with such notice. The registration certificate has also to be amended or a fresh registration certificate has to be issued, if necessary.
(11) If thereforee Shri Bhagwan Dass severed his connection with the partnership and thereforee wanted a change in the constitution of the firm and in the certificate issued under the Act it was his duty to have given intimation to the Chief Inspector under Section 6, particularly when the copy of the original form showed that the original was signed on behalf of the firm by Shri Bhagwan Dass and not by his other partner. In his answer to a question in his examination under Section 342 Criminal Procedure Code, Shri Bhagwan Dass admitted that the firm was registered under the Delhi Shops and Establishments Act, 1954 and his case was that he had left it after about two months because his terms were not settled with the other partner. In this view of the matter, it could no be said that the copy (Ex. Public Witness 3/1) could not be held to have been proved because it had not been elicited from Shri Bhagwan Dass that he had signed the original, he himself having admitted that the firm was registered with the Chief Inspector under the Act.
(12) The question about the sample having been lifted on 9-4-1970. while Ex. Public Witness 3/1 related to the situation as it prevailed on 3-4- 1969, has also no significance so long as Bhagwan Dass was shown as a partner in the form Ex. Public Witness 3/1, which was registered with the Chief Inspector under the Delhi Shops and Establishments Act, 1954. The onus of proving that he had severed his connection lay on him as it was his duty to have complied with the requirements of Section 6. His mere statement that he had left the firm a long time ago could be of no help to him.
(13) Counsel for Shri Bhagwan Dass submitted that even if it was held that Shri Bhagwan Dass was a partner of the firm the name of one Shri Sat Pal son of Bihari Lal was shown against column No. 8 as a person occupying the position of management or 'employees engaged in confident capacity.' It was contended that Section 17(1) of the Prevention of Food Adulteration Act, 1954 lays down that where an offence under the Act has been committed by a company (and the Explanationn to that section shows that for the purposes of this section a company means a body corporate, and includes a firm or other association of individuals) every person who at the time the offence was committed was in charge, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. There is a proviso to sub-section (1) which lays down that nothing contained in this sub-section shall render any such person liable to any punishment provided in the Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(14) What was urged was that the person who was really in charge and was responsible to the partnership firm in the conduct of the business of the firm was Shri Sat Pal son of Bihari Lal and thereforee the complaint if any could have been filed against him and not against Shri Bhagwan Dass who admittedly was not present at the time when the offence took place. In this connection our attention was invited to a Bench decision of the Punjab High Court in Municipal Committee, Amritsar v. Buta Singh 1966 Plr 146 where it was held that under Section 17 it was the duty of the prosecution to prove that the person sought to be made liable under the Act was, at the time of the commission of the offence in charge and was responsible to the company for the conduct of its business. It is only when the initial onus is discharged in respect of the person, that the onus of proving the fact referred to in the proviso that the offence was committed without his knowledge or that he exercised all due diligence for the prevention of such offence would shift on to him. The decision, instead of helping the argument of the learned counsel goes against him. In the present case, against column No. 8 which reads as under:-
'NAMESof other persons occupying position of management or employees engaged in confident capacity'
the name of Sat Pal son of Bihari Lal has been shown. But against column No. 4 which reads:-
'FULLName of the Manager, if any (including his father's name)'
the name of Bhagwan Dass son of Ram Chand has been shown.
(15) This Bhagwan Dass is the same person as has been shown as a partner of the firm. It was thereforee Shri Bhagwan Dass who was in charge of and was responsible to the firm for the conduct of its business and it was not his case that he was a sleeping or a dormant partner. His case on the other hand was that he had joined the firm as a partner but had severed his connection long time back which fact he was unable to establish in view of the provisions contained in Sections 5 and 6 of the Delhi Shops and Establishments Act, 1954. Sat Pal son of Shri Bihari Lal may either be another person in charge of management along with Shri Bhagwan Dass or he may also be an employee engaged in confident capacity, but in any event it was Shri Bhagwan Dass who was the manager of the firm and thereforee the provisions of subsection (1) of Section 17 of the Prevention of Food Adulteration Act, 1954 did apply to him. Once the provisions of sub-section (1) applied to him then alone the question raised in the proviso to that sub-section could arise. But here in the present case that question could not arise at all because the defense taken by Shri Bhagwan Dass was that he had severed his connection with the firm and that defense he had failed to establish. There was thereforee no question of the offence having been committed without his knowledge or that he had exercised all due diligence for the prevention of such offence.
(16) The next case to which our attention was invited is a Single Bench decision of Allahabad High Court in D. K. Jam v. The State : AIR1965All525 . The decision is with reference to sub-section (2) of Section 17 but the application of that subsection arises only when an offence is committed by the company or a partnership and it is also proved that the offence has been committed with the consent or connivance of or is attributable to neglect on the part of any director, manager, secretary or other officer of the company. It is in such circumstances that such director, manager, secretary or other officer is held to be deemed to be guilty of that offence and he is also liable to be proceeded against and punished accordingly. The judgment makes it plain that natural persons are made vicariously liable for an offence under the Act when it is established that the offence was committed by a company or firm and these persons had some nexus with the crime either because of their connivance with or due to their criminal negligence which had resulted in its commission.
(17) In the present case when sale of adulterated ice cream was made the offence was obviously committed by a partnership firm and the only question was whether a partner who was in charge of and was responsible to the firm for the conduct of its business was liable to be proceeded against and punished. The authority thereforee does not in any way advance the case of Shri Bhagwan Dass.
(18) The next case relied upon by the learned counsel of Shri Bhagwan Dass is a decision of Somasundaram J. in The Public Prosecutor v. R. Karuppian AIR 1958 Mad 183 The case relates to a person who was Honorary Secretary of a Cooperative society. He was not going to the society daily and the business was left in the hands of the clerk with a check over him by the Secretary. It was held that apparently day-to-day business of selling the milk was done by the clerk and although the Secretary was expected to maintain a check over him it would not make him a' person, at the time the offence was committed, in charge of the business and responsible for the conduct of the business of the Society, more so when the prosecution had failed to let in any evidence that the Secretary was a person who was responsible to the Society for the conduct of its business.
(19) The next case to which our attention was invited is a decision of J. P. Mitter 3. in Momtaz Begum v. The State : (1962)IILLJ443Cal . The case is under Section 14 of the Employees' Provident Funds Act, 1952 where the language is in parimateria with Section 17 of the Prevention of Food Adulteration Act, 1954. No help can be derived by the learned counsel for the respondent from that decision because it was said that in that case there was nothing in the petition of complaint to suggest that the Director concerned was in charge and was responsible to the company for the conduct of the business of the company. There was thus a failure on the part of the prosecution to establish the initial onus and thereforee no question of any onus upon the person concerned to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence could arise.
(20) The result is that in our opinion, Shri Bhagwan Dass is guilty of the offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and thereforee the order made by the Additional Sessions Judge has to be reversed.
(21) The next question is as to what sentence should be awarded to him. Learned Additional Sessions Judge has come to the conclusion that the case falls under Section 16(1)(a) of the Act. According to the standard laid down for chocolate ice cream the article of food should have contained milk fat and no other fat. From the certificate issued by the Director, Central Food Laboratory which supersedes the report of the Public Analyst, the analysis shows the presence of sesame oil- This means that there was adulteration on account of addition of inferior fat during manufacture. It was not the case of the prosecution that the addition of such inferior fat to milk fat injuriously affected the nature, substance or quality of chocolate ice cream. Nor was it their case that the stuff purported or was represented to contain milk fat to the exclusion of sesame oil or that the adulteration was to the prejudice of the purchaser. The case thereforee fell under subsection (1) inasmuch as the quality of article fell below the prescribed standard. On that view the case fell under the provisions of Section 16(1)(a) of the Prevention of Food Adulteration Act. There were however circumstances which did not make it necessary to award the respondent the minimum sentence required by law. A sub-minimum sentence can be imposed in such a case. To Shri Kasturi Lal the sentence of imprisonment for two months and a fine of Rs. 500.00 or in default of payment of fine further rigorous imprisonment for months, was awarded by the learned Addl. Sessions Judge and a criminal revision against that judgment was dismissed by a learned Single Judge of this Court. As the respondent herein was proprietor of the firm and we have also held that he was in charge and was responsible to the firm for the conduct of its business, we are of the view that he should be awarded a sentence of three months rigorous imprisonment and a fine of Rs. 1000.00. In default of payment of fine he will undergo further rigorous imprisonment for a further period of three months. The appeal is accepted. The Chief Judicial Magistrate should take necessary steps for the arrest of the respondent for undergoing the sentence imposed on him.