Pandrang Row, J.
1. The petitioner in this case is a coffee hotel-keeper at Trichinopoly, who has been convicted of an offence punishable under Section 5(1) of the Madras Prevention of Food Adulteration Act, 1918. The offence is said to have been committed in respect of the sale of milk on the 27th of June, 1935, by a servant boy employed in the coffee hotel and not by the petitioner himself, though, according to the prosecution, the petitioner was present when the milk was served to the Sanitary Inspector. One of the main defences in both the Courts below was that the servant boy sold the milk contrary to his master's orders and without his consent. In support of this defence he made an application under Section 6, Sub-section 2 of the Act which provides that:
Where an employer is charged with an offence under the Act he shall be entitled on application duly made by him to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing, etc.
2. This application was rejected by the trying Magistrate apparently on the ground that it was made only after the prosecution had closed its case and when the accused was himself being examined as to his defence. The reason given for this rejection of the application is obviously not a good one, for Section 6(2) which gives the employer (accused) this peculiar privilege does not specify that the privilege must be claimed at any particular point of the trial or that it should be claimed before the prosecution closes its case. It is a special privilege given by law and as there is no limit of time fixed for claiming the privilege except the natural limit of pronouncement of judgment in the case it must be held that the employer accused can claim the privilege at any stage of the trial. This point was raised in both the Courts below but the appellate Magistrate was of opinion that the accused had nobody to blame but himself because he did not renew his application under Section 6(2) of the Act before the Magistrate who actually heard the case de novo at his instance. What is called a trial de novo is not strictly speaking a new or fresh trial. All that it means is that the accused has the right to have all or any of the witnesses re-summoned and re-heard by the new Magistrate. It does not mean that when the accused claims this privilege of re-summoning and re-hearing the witnesses what had taken place before is completely wiped out or that he should renew every application which he had made before he claimed that privilege. In any case, it appears to me that the trying Magistrate was not right in denying the privilege which was given by law to the petitioner and the trial has therefore been not according to law. The conviction and sentence must therefore be set aside on this ground alone, namely, that the trial has not been according to law and especially that provision of law which is embodied in Section 6 (2) of the Act in question. In view of the nature of the case and the fact that the accused petitioner must have already suffered sufficiently in pocket by reason of the appeal and the revision petition, I do not think it is necessary in the interests of justice that there should be a retrial.