1. This is an appeal preferred by the State against, the order of acquittal made by the Additional First Class Magistrate, Coimbatore in C.C. NO. 445 of 1951.
2. The facts are: On 11-6-1951 Sanitary Inspectors Natarajan and Hussain Khan went to the shop of K. V. B. Annamalai Chettiar in Rajah Street, Coimbatore. This proprietor was absent and in fact he is stated to be alive at Perundurai. The employee in the shop S. Shanmugham was present. In the show case in front of the shop there was a tin of butter. Sanitary Inspector Natarajan purchased for the purpose of analysis half a pound of butter from that tin and paid for it. The butter was divided into three parts and the formalities prescribed under the Madras Prevention of Adulteration Act were followed. The butter sent to the Government Analyse, Guindy, was found by the latter to be adulterated with 8.1 per cent, of excess water. Thereupon the proprietor of the shop Annamalai Chettiar and the employee Shanmugham have been separately charge-sheeted for an offence under Section 5(1)(d? of the Prevention of Adulteration Act.
2a. The defence of the accused was that he was not present at the time of the sale and that the butter from which this 1/2 lb. was purchased was not butter purchased by him but which had been brought there by Marappan of Vellankurichi for being sold and that this Marappan had executed a letter of warranty and that the sample had been taken before Marappan could return after his leaving this butter in the shop, and wash, clean and drain water from the butter and hand over the same to the accused's shop for sale and that this fact was represented to the Sanitary Inspector by Shanmugham.
3. in support of this plea this Annamalai Chettiar examined this Marappan as D.W. 1 and an attestor of the Mahazar at the time of the purchase of the butter as D.W. 2.
4. The learned Additional First Class Magistrate acquitted this Annamalai Chettiar on the ground that it was not proved beyond reasonable doubt that the accused sold the butter or offered the same for being sold and purported to give him the benefit of the doubt. Hence this appeal.
5. There can be no doubt that the accused was rightly acquitted but on a wrong construction of the law. In -- 'Public Prosecutor v. Srinivasa Rao', AIR 1938 Mad 541 (A), Lakshinana Rao J. held that a secretary and an accountant of a Cooperative Society supplying butter to the Sanitary Inspector under Section 14 cannot be convicted under Section 5 (1) (d) and Rules 24, 28 and 29 framed under Section 20 (2) as supply of sample to the Sanitary Inspector under Section 14 is not a sale nor can the Secretary or the accountant be said to offer the butter for sate. This short judgment does not give any reason for this conclusion. Subsequently, Horwill J. dealt with this matter at some greater length in -- 'In re Kanakayya', AIR 1942 Mad 609 (B) as follows: 'The charge against the petitioner was of offering ghee for sale; but it was argued that he would be guilty of selling the ghee. A sale is a voluntary transaction, even when it is preceded by an agreement to sell. When a person exhibits articles in his shop he is making a general offer to sell them, and any person who comes in'o the shop and offers the price accepts his offers but the intending purchaser cannot use physical force or threats to compel the owner to part with the goods. If he does, the transaction fs not a sale. If the Sanitary Inspector had not exercised his powers under Section 14, but had merely tendered the money and the petitioner had voluntarily handed over the goods, then there would have been a sale; and the fact that it was subsequently found that the goods were required not for consumption but for analysis, would make no difference to the nature of the transaction that had been entered into. In this case, the petitioner would presumably not have parted with the goods voluntarily when he knew that they would be used for the purpose of bringing a case against him and his master. The petitioner was not therefore guilty of selling ghee. Lakshmana Rao J in a similar case held that the parting with a commodity when it is demanded by the Sanitary Inspector in the exercise of his power under Section 14 of the Act did not amount to a sale.' These rulings have been considered by Kuppuswami Aiyar J. in -- 'Public Prosecutor v. Narayana Sing : AIR1944Mad236 , by Govinda Menon J. in -- 'Public' Prosecutor v. Ramachandrayya', AIR 1948 Mad 329 (D) and by me in --'Public Prosecutor v. Dada Haji Ibrahim Helar, : AIR1953Mad241 (E). It is enough for the purpose of this case that the reasoning upon which these three decisions dissented from the two prior decisions, set out by Govinda Menon J. in --'Public Prosecutor v. Ramachandrayya', AIR 1948 Mad 329 (D), is as follows:
'In : AIR1944Mad236 ', Kuppuswaral Aiyar J. has held that when a Sanitary Inspector purchased milk from the accused, tested it and found that it was adulterated, the transaction amounted to a purchase and therefore the accused was guilty under Rule 29 (b) of the rules and Section 5 (1) (b) read with Rule 27 of the Madras Prevention of Adulteration Act. Moreover, in this case, Ex. P. 2, the receipt contains an admission by the second accused that he was selling buffalo milk to the Maruti Vilas Coffee hotel and the transaction by which P.W. 1 got the sample is also admitted to be a sale. Apart from the admission contained in Ex. P. 2 when Mr. Venkatastibbiah exchanged money consideration for the milk, he was acting as a purchaser snd the society, a separate legal entity, was performing a contract of sale in delivering milk. Therefore it may even be unnecessary to decide whether the transaction with P.W. 1 was a sale at all, even though I am convinced that it is also a sale.'
Therefore, the lower Court went wrong in holding, that the butter was not sold or offered for being! sold.
6. The matter does not rest there because under Section 6 (3) of the Act, 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 the hearing, and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the Court that he used due diligence to enforce the execution of this Act and that the said other person committed the offence without his knowledge, consent or connivance, the said other person shall be convicted and the employer shall be acquitted. In this case no doubt the procedure prescribed in terms of this clause had not been followed. The substance of it has been complied with. The prosecution itself charged both the master as well as the servant. The plea of the master was that he lives at Perundurai and that he had taken all reasonable precautions like getting letters of warranty for the purchase of butter and that at no time he had consented or connived at with the sale of adulterated butter. Therefore, though the mere absence of the proprietor from the shop would not in any way exonerate him, because if that were the case every master would take care to keep away from the shop to get rid of his liability and the entire case law on the subject has been discussed by me in -- 'Kasi Rajah v. State', : AIR1953Mad156 (P).
7. But if the master is able to show that he had used due diligence to enforce execution of the Act and what was done was without his knowledge, consent, or connivance, the employer has got to be acquitted. In the instant case this has been shown and therefore the employer is entitled to be acquitted and in the connected case the employee has got to be convicted and is being convicted.
8. In the result, the acquittal by the Additional First Class Magistrate is sustained though for an entirely different reason and this appeal is dismissed.