1. This is an appeal preferred by the state against the acquittal by the learned Sub Magistrate, Badvel in C. C. No. 1811 of 1951.
2. The facts are: On information received the Health Inspector, P. W. 1 went to the bazar at Badvel on 29-6-1951 at about 9 a.m. and Inspected the house and shop of the accused and his father and on finding the accused there asked him to keep open the godown which is situated a little away from the shop and he among other things found there smooth pea flour with which we are now concerned here. The Health Inspector took sample of the pea flour and sent it to the Public Analyst for analysis & it was declared as adulterated with 'lak dhall' flour (kesari dhall). It was a mixture of 'lak dhal' of about 80 per cent with Bengal gram flour of 20 per cent and it also contained an artificial water-soluble yellow colouring matter derived from coal tar. Inasmuch as sale or possession for the purpose of sale under any description of artificially coloured Bengal grain f]our and red gram flour is an offence punishable under Rule 29 read with Rule 28-A, Madras Prevention of Adulteration Rules issued in G O. No. 680 P. H. dated 24-2-1950 as amended in G. O. No. 1613 Health dated 5-5-1950 this accused was charged for an offence punishable under Rule 29 read with Rule 28-E, Madras Prevention of Adulteration Rules issued in G. O. No. 3082 Health, dated 1-9-1950.
3. The two points taken before me for sustaining the acquittal are that the father of the accused was the owner of the shop and not the accused and that the proper person who should be proceeded against is the father and not the son.
4. In my opinion this contention cannot be accepted, because under Sub-clause (d) of Section 5, Madras Prevention of Adulteration Act every person who offers for the sale any food which is not up to the standard of purity prescribed by the (Provincial Government) is punishable. So what we have to see in the present case is whether this accused stored or offered for sale this substance in controversy. A person who is working in a shop on behalf of the owner as his employee is certainly one who will come within the meaning of the 'person offering for sale the articles exhibited there'. It is not staled that the accused was there for his health. On the other hand he must have been in the shop for the purpose of carrying on sales on behalf of his father and as his servant.
It has been laid down in a long line of decisions the most notable of which is the English decision of --'Sherras v. De Rutzen', (1895) 1 Q. B. 918 (A), in which Wright J. has collected and classified the interesting English decisions on the subject and the S. C. decision of --'Hariprasada Rao v. The State', : 1951CriLJ768 (B). The entire case law on the subject has been set out by me in --'Kasi Rajah v. State', : AIR1953Mad156 (C). See also --'Barker v. Levinson (Goddard C. J.)'. A servant is equally liable because if the law were otherwise every master would try to keep himself out of the way and escape liability. The argument that the accused has passed his school final examination and that there are differences between him and his father in private life are neither here nor there. On the particular date in question this accused was working in the shop on behalf of his father. Therefore the accused is certainly a person coining within the meaning of Sub-clauses (b) and (d) of Section 5 of the Act.
5. Therefore the acquittal by the Sub-Magistrate cannot be supported and is hereby set aside and the accused is convicted as charged. Taking into consideration the various mitigating circumstances the accused is sentenced to pay a fine of Rs. 35. Time for payment of the fine is six weeks from the date of the receipt of this order in the lower Court.