P. Govinda Menon, J.
1. This appeal is by the Food Inspector of the Calicut Corporation against the order of acquittal of accused 2 and 3 who along with the first accused were prosecuted in Calendar Case 221 of 1963 for sale of adulte rated milk fruits, an offence punishable under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act (shortly stated the Act).
2. On the morning of 31-5-1963, P. W. 1 the Corporation Food Inspector visited the Ujay Ice Fruit Works, Gujarathy street, Calient and purchased 30 milk fruits from the first accused paying its price. They were duly sampled and sent for analysis. The report of the public analyst Ext. P-4 showed that the sample was adulterated as it contained non-permitted coaltar dye. When the accused were questioned the first accused admitted the sale but put forward the plea of warranty Learned Magistrate negatived the plea of warranty and found the first accused guilty of the offence charged and sentenced him to pay a fine of Rs. 100. He has not filed any appeal.
3. On the ground that accused 2 and 3 constituted a company and as the prosecution had failed to prove that they were in charge of and were responsible to the company for the conduct of the business of the company they were acquitted. The correctness of this finding is challenged in this appeal. Learned counsel for the corporation contends that Section 17 of the Act has no application, that this was only a case where accused 2 and 3 are joint proprietors, that the licence stands in their names and they were conducting the business and the first accused was only their agent or servant and that both the master and the servant could be held liable,
4. The first question to be decided is whether accused 2 and 3 could be said to be partners of the firm and would come within the purview of Section 17 of the Act. The explanation to Section 17 says, company means any body corporate and includes a firm or other association of individuals. Learned counsel for the respondents contend that accused 2 and 3 constitute a firm that they are association of individuals who were conducting the trade and as such they would satisfy the description of the term 'company'. The mere fact that the licence stands in the name of accused 2 and 3 and they are shown in the complaint as owners or proprietors would not show that they do not form a company. In the General Clauses Act 1897 under Section 3(42) 'person' shall include any company or association or body of individuals whether incorporated or not. In the Act special provision is made if the offence is committed by an association of persons.
5. Learned counsel has referred me to certain decisions of the Supreme Court dealing with the question as to what is the moaning of the word 'association of individuals' in the income-tax Act. Their Lordships have followed the decision in Commissioner of Income-tax, Bombay v. Laxmi Das Devi Das, AIR 1938 Bom 41, where Beaumont, C. J., laid down the test as follows :
'In my opinion, the only limit to be imposed on the words 'other association of individuals' is such as naturally follows from the fact that the words appear in an Act imposing a tax on income, profits and gains, so that the association must be one which produces income, profits or gains. It seems to me that an association of two or more persons for acquisition of properly which is to be managed for the purpose of producing income, profits or gains fall within the words 'other association of individuals' in Section 3 and under Section 9 of the Act, the association of individuals is the owner of the property and as such is assessable.'
6. This view has been followed in the decision in Commr. of Income-tax, Bombay v. Smt. Indira Balkrishna, AIR 1960 SC 1172; Mohammed Noorulla v. Commr of Income-tax Madras, AIR 1961 SC 1043; and Commr. of Income-tax. Poona v. Buldana District Main Cloth Importers Group, AIR 1961 SC 1261.
7. A specific question was asked to P. W. 1 the food inspector whether Ujay Ice Fruit Works is not a partnership concern. He has not stated that it is not but only stated that he did not know. The first accused even in Ex. P-3(a) has stated that he is the managing person. P. W 1 has not seen accused 2 and 3 nor questioned them. It would have been easy for the prosecution if they wanted, to disprove the case of the accused that they constituted a firm The third accused is a lady and when questioned in court has specifically stated that she is only a sleeping partner. On a consideration of all this evidence, I am not prepared to say that the finding of the learned Magistrate is so unreasonable as to merit interference in an appeal against acquittal. So if the Ujay Ice Fruit Works is a company within the meaning of the term company, it is clear that under Sub-section (1) to Section 16 it is the duty of the prosecution to prove that the person sought to be made liable was in charge of and was responsible to the company for the conduct of the business of the company. Unless this initial onus is discharged there is no onus upon the accused as provided in the proviso to Subsection (1) to Section 17.
It is only when the person concerned is proved to have been in charge of or is proved to have been responsible for the company in the conduct of the business of the company that he is called upon to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. The only evidence led by the prosecution was that accused 2 and 3 were proprietors of the company. There was no evidence that they were in charge of or was responsible to the company for the conduct of the business of the company. That being so the acquittal of accused 2 and 3 is proper--Vide the decisions in Jagadish Prasad Gupta v. State of West Bengal, 65 Cal WN 1107; Public Prosecutor v. Subramanyam, AIR 1960 Andh Pra 584 and Momtaz Begum v. State, AIR 1962 Cal 202 a case dealing with a similar provision contained in Section 14A of the Employees Provident Funds Act.
8. The appeal is, therefore, dismissed