Holmwood and Sharfuddin, JJ.
1. These were two Rules calling upon the Municipal Magistrate of Calcutta and the Chairman to show cause why the conviction and sentence passed upon Sew Karan, proprietor, should not be set aside on the ground that he did not sell, or cannot be said to have sold, the ghee himself, and to determine whether Section 495 of the Calcutta Municipal Act applies to any person other than the actual hand employed in the sale.
2. Now, as regards the first question, we can have no doubt, on the authority of Brown v. Foot (1892) 17 Cox. C.C. 509 that on the law, which in England is exactly the same as in this country, indeed, Section 495 appears to have been based entirely on Section 6 of the English Act, it has been held that a servant, employed by his master to sell any article, who adulterates it, thereby renders his master liable under the section, although there is no connivance of the master; and non-connivance of the master is no defence, though the entire absence of connivance on his part might in the discretion of the convicting Magistrate be a ground for mitigation of the penalty. Now, the ground upon which Mr. Justice Wills proceeds in that case is one which equally covers the case of an agent or a firm, because it is not directed as a prohibition against a person, but, as Wills J. says, it imposes a positive prohibition against the sale, of adulterated articles. This was the point upon which we had doubt when we issued the Rule, owing to the wording of the law both in England and in India, the section saying 'no person shall sell.' But it appears to be settled law that the prohibition is positive, as we have seen, against the sale of adulterated articles, and any person who is legally responsible for such a sale conies within the section.
3. But it has been argued that this Sew Karan is only a commission agent for certain producers of ghee up-country, that he collects ghee and other things from them and, as they sell in Calcutta at certain shops which go in the names of Lalchand Sew Karan, the Health Officer appears to have taken proceedings against Lalchand Sew Karan, and we see that the licensee for wholesale dealers in ghee at No. 2, Ram Kumar Rakhit's Lane and for selling ghee at No. 9. Ram Kumar Rakhit's Lane is Lalchand Sew Karan. The Magistrate, however, treated the case as if Lalchand was the servant of Sew Karan, and the finding on the evidence is that Lalchand was the hand that actually sold the ghee to the Inspector. On the view we take of the law, if Lalchand and Sew Karan are partners, they are both responsible for everything which is sold in their name at shops bearing both their names; and if they are master and servant, it is clear on the English authorities that the master is liable for the act of his servant.
4. We do pot think it necessary to go further into the question of what their precise relations are. It is sufficient to say that Lalchand did not appear in the lower Court, and that the conviction in both the cases has been held against Sew Karan.
5. There are two matters in the Act itself which convince us that the Legislature intended that the beneficial owner of the article should be responsible for its purity. For, when the Health Officer goes to make enquiries about food exposed for sale, there is the provision in Section 507 that he can compel the seller to give him enough as is reasonably requisite for analysis, and that this quantity shall be divided into three parts to be then and there separated, and the Chairman forthwith will notify to the seller or his agent selling the article his intention to have the same analysed. Now, it is clear that in this' passage the word 'seller' means the owner of the shop or the person who has license to sell goods or who carries on business through his servant or agent, and he is contrasted with the agent actually selling the article. This is one point which convinces us of the intention of the Legislature. Then we turn to the condition of punishment under Section 574. We find that the fine which may be imposed is Rs. 100 for the first offence and Rs. 500 for any subsequent offences. Now, it is perfectly clear that this must have reference to the master and not to the servant, because it would not be always the same servant who would be in the shop selling articles, and by changing his servant every week a dishonest proprietor could continue to sell adulterated goods without incurring any further penalty.
6. We, therefore, think, taking the view that the Magistrate took, that Lalchand was the seller or agent, and Sew Karan the owner or principal, that the convictions are right; or taking the view which has been urged upon us by the learned Counsel for the defence, who obtained the Rule, that they were partners, the convictions will be equally right.
7. The Rules are, therefore, discharged.