Ramchand Ram and Another vs Gaya Municipality

Verma, J.—This is an application on behalf of two persons Ramchand Ram and Mani Ram, who have, been convicted u/s 3 (1), Food and Drugs Adulteration Act (2 of 1919). The former has been sentenced to pay a fine of Rs. 100 in default to undergo simple imprisonment for one month, and the latter has been sentenced to pay a fine of Rs. 25 in default to undergo simple imprisonment for three weeks.

The case for the prosecution is that on 22nd September 1943 Mr. G. Paterson, Sanitary Inspector of the Gaya Municipality, went to the shop of the firm where ghee is sold. He found the petitioner, Mani Ram who is a munib of the shop, present in the shop. Mr. Paterson told the munib that he wanted sample of the ghee that was sold by the shop for being sent to Patna for chemical examination. The munib agreed and the Sanitary Inspector purchased three chhataks of ghee from the shop for 6 annas 9 pies. According to the rules, the sample purchased was divided into three parts in the presence of the munib and each part was put in three separate phials. The phials were then packed and sealed in the presence of the munib. A receipt was granted by the munib showing the payment of the price for the sample sold, and he also signed on the report which the Sanitary Inspector was going to submit in the matter to his superior officers. One phial containing the sample of the ghee was left with the munib while the other two phials were taken charge of by the Sanitary Inspector who forwarded them to the chemical examiner who reported in due course that the sample of ghee was not genuine and was highly adulterated. Upon these facts the petitioners were placed on trial. Ihey pleaded not guilty but they have been convicted and sentenced as mentioned above.

One of the points urged before the lower appellate Court was that petitioner 1 was not the sole proprietor of the shop but he held it in partnership with three others namely Guru-saran Lai, Lachmi Babu and Bishun Babu, and therefore, only one of the proprietors of the shop should not have been prosecuted. It was also urged that the firm is a firm of commission agents where byaparis bring ghee in closed tins which are sold in the same condition as they are received in the shop, and, therefore the liability for the quality of the ghee sold by the shop rested also on the byaparis. It was further urged that petitioner 1 himself does not attend the shop and has no knowledge of what happens in the shop and that, therefore, he is not liable'' for any criminal act of the munib of the shop. With regard to the contention that petitioner 1 is not the sole owner of the firm, the lower appellate Court observes as follows:

That may be so, but I fail to understand how the appellant Rai Bahadur Ramchand Ram can plead that because his other partners have not been prosecuted his prosecution alone is either bad or illegal. May be for some reason or other which, might even be sinister, the municipality has chosen to prosecute Rai Bahadur Ramchand Ram alone. There is nothing illegal in that being done. Of course, the other partners are equally liable to prosecution, but if the municipality has chosen not to proseoute. them, it cannot be said that the prosecution of Rai Bahadur Ramchand Ram is illegal on account of that.

With regard to the contention that, petitioner l himself does not attend the shop and has no knowledge of what happens in his shop, the lower appellate Court observes, after referring to various decisions, as follows:

In this case, therefore, which is under the Food and Drugs Adulteration Act, applying the principle laid down in Halsbury''s Laws of England cited above and the Burma cases, I am of the opinion that Rai Bahadur Ramchand Ram, although he does not sit in the shop and actually carry on the business himself, is liable to being criminally prosecuted for the act of his munib Mani Rar.

As to the contention that the ghee was received in and sold by the shop in closed tins, and, therefore, the partners of the shop as well as the byaparis who supplied the ghee in closed tins should also have been prosecuted, the lower appellate Court says as follows ;

In the case under consideration, however, there is nothing to show that the tin out of which the sample of ghee had been taken was duly labelled. The evidenoe does not show that the appellants received tins and tins of ghee from the same byaparis who had brought to their shop the particular tin of ghee from which the sample had been taken and that all the tins of ghee brought by him are similarly sealed and packed and are labelled. There is also nothing to show that when the Sanitary Inspector demanded a sample of ghee the munib who was present at the shop raised any objection to breaking open the tin and issuing the sample. Section 14, therefore, does not at all apply to the case under discussion and the appellant can neither claim exemption from a criminal proseoution nor can they olaim that they have been prejudiced because the sample was taken out of a sealed tin.

In revision it has been urged by Mr. Maldeva Sahay, appearing on behalf of petitioner 1, that the decisions and the authorities referred to by the lower appellate Court are not applicable to the facts of the present case. With regard to the case of petitioner 2, the only point urged is that he having sold ghee in sealed tins he was not liable for the good quality or otherwise of the ghee in the tins. Now, it is in evidence that this firm sells goods on commission basis, and the case that the tins were sealed as they came has not been doubted. In order to claim exemption from liability to be prosecuted one has to refer to Section 14 of the Act, which runs as follows:

In the case of any food or drug sold or offered for sale or exposed for sale in an unopened tin or packet duly labelled, the provisions of this Act shall have effect subject to the following modifications, namely : (1) The person so selling or offering or exposing such food or drug shall not be deemed to have committed an offence under Sub-section (1) of Section 3, if he proves that he bought the food or drug in the same unopened tin or packet and in the same condition in which it was so sold or offered or exposed and that using due care and attention he believed such food or drug, when he so sold or offered or exposed it, to be genuine." etc.

In the present case there is nothing to indicate that the tins were labelled and, therefore, so far as petitioner Mani Ram is concerned, his petition must be rejected. Then the question is how far petitioner 1 is liable for the acts of the munib, petitioner. 2. This petitioner is one of the proprietors of the shop of which petitioner 2 is a servant in the capacity of a munib. As I have already said, the Court below has held that petitioner 1 being a master of the shop is himself responsible for the act of his servant in selling the adulterated ghee and, therefore, he too is guilty u/s 3 (1), Bihar and Orissa Food and Drugs Adulteration Act. This necessitates looking into the provisions of the section itself, which runs as follows:

Whoever sells or offers for sale or exposes for sale or manufactures for sale any food or drug which is not genuine, shall be punished with fine which may extend to one hundred rupees.

The lower appellate Court has relied on Halsbury''s Laws of England, Emperor v. U Gyaw A. I. R. 1918 L. B. 24, Emperor v. Mangalchand A. I. R. 1934 Rang. 182 and Maung Ba Chow v. Emperor AIR 1934 Rang. 245. The passage relied on by the lower appellate Court from Halsbury''s Laws of England runs as follows:

The condition of mind of a servant or agent is not imputed to the master or principal so as to make him criminally liable merely because his servant or agent commits a negligent or malicious or fraudulent act. But in the limited class of cases where a particular intent or state of mind is not of the essence of the offence, the acts or defaults of a servant or agent in the ordinary course of his employment may make the master or principal criminally liable, although he was not aware of such acts or defaults, and even where they were against his orders.

In the case reported in Emperor v. U Gyaw A. I. R. 1918 L. B. 24, it was held that a licensee or other person permitted to fell timber in accordance with certain conditions under rules framed under the Forest Act is liable to be punished under those, rules for the acts of his servants, whether authorised by him or not, and even if the acts are in contravention of his instructions, provided that those servants were acting within the scope of their master''s authority and unless the master can show that he acted in good faith and did all that could be reasonably expected of him to prevent the breach of the conditions under which he is permitted to fell the timber. There the learned Judge was dealing with Rule 22, Burma Forest Act (4 of 1902) which runs as follows:

No person shall fell, cut, girdle, mark, lop, tap or injure by fire or otherwise .... any teak tree or any other tree of the kinds specified in Appendix 1 and within the areas therein specified save under and in accordance with the condition of a special agreement with Government or a license, etc.

In the case reported in Emperor v. Mangalchand A. I. R. 1934 Rang. 182, also the learned Judge dealing with Rule 22, Burma Forest Act, held that:

Where a particular intent or state of mind is not of the essence of an offence punishable under criminal law, the master is criminally liable for the act of his servant if that act is committed by the servant in the course of his employment even without his master''s knowledge or consent but for his master''s benefit. Any particular intent or state of mind is not of the essence of the offence under Rule 22 and therefore where the offence is found to be committed by the servant in the course of his employment for his master''s benefit even without his master''s knowledge or consent, the master is criminally liable.

In this case the learned Judge referred to the passage from the Halsbury''s Laws of England, which I have quoted above. On the principle of law, the learned Judge also referred to the following observations of Atkin J., (now Lord Atkin) in Mousell Brothers, Ltd. v. L. & N. W. Ry, Co. (1917) 2 K.B. 836:

I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by which it would iSi ordinary circumstances be performed, and the person upon whom the penalty is imposed.

The next case relied on by the lower appellate Court is reported in Maung Ba Chow v. Emperor A. I. R. 1934 Rang. 245, where similar views Were expressed by a single Judge in connexion with a breach of the same Act. On the same lines there are decisions of the Bombay and Allahabad High Courts to which my attention has been drawn. In Lakshmichand Bamohand v. Chotooram Motiram (1900) 24 Bom. 403 it was held that the principal was liable for the act of his agent. Similarly, in Emperor v. Babu Lal 31 ALL. 319 it was held that where the servant of a licensed vendor of opium, in the course of his employment as such servant, sold opium to a person under the age of 14 years, the licensed vendor also was liable u/s 9, Opium Act, even though he might not have been aware of the sale. Mr. Baldeva Sahay argues that there is a difference between the case of a licensee and that of an ordinary individual, because where a license is issued in the name of a particular person the. authorities expect him to observe the conditions of the license and therefore when he gets his work done through a servant he is still liable under the terms of the license. Whereas the petitioner was not owning the shop under any license and he was not taking any active part in the management of the shop, he would not be liable for the acts of his servant if adulterated ghee was sold in the shop of the petitioner. The learned -advocate has referred to 38 & 39 Victoria, chap. 63-An act to repeal the Adulteration of Food Acts, and to make better provision for the sale of food and drugs in a pure state. Section 3 of the enactment deals with the description of offences relating to the selling of adulterated food. An exception to Section 3 is provided in Section 5 in these terms:

Provided that no person shall be liable to be convicted under either of the two last foregoing sections of this Act, in respect of the sale of any article of food, or of any drug, if he shows to the satisfaction of the justice or Court before whom he is charged that he did not know of the article of food or drag sold by him being so mixed, coloured, stained, .... and that he could not with reasonable diligence have obtained that knowledge.

Mr. Baldeva Sahay urges that there is no such exception except the one mentioned in Section 14, Bihar and Orissa Food and Drugs Adulteration Act. We have, therefore, to look into the wordings of Section 14 and its plain grammatical meaning. As against this Mr. Lal Narain Sinha, appearing on behalf of the complainant municipality, urges that under the proviso in Section 5 of the enactment 38 & 39 victoria, chap. 63, the accused has to establish want of knowledge to the satisfaction of the Court whereas no such exemption is provided in the Act under whijh the petitioner has been proceeded against, and that the only section viz., Section 14, which provides any exemption, is not applicable to the case of the petitioner. He has referred to the case in Rakhal Chandra Dutta Vs. Purna Chandra Ghosh, . That was a case under the Bengal Food Adulteration Act (Bengal Act 6 of 1919) and the learned Judge was of the opinion that the Act being intended for the safety of the people its provisions were to be construed liberally. Mr. Sinha contends that in this country the law is more stringent on the subject than in England. Referring to the Bengal Act Mr. Baldeva Sahay urges that the wordings of the Bengal enactment are more comprehensive than those of the Bihar Act. Section 5, Bengal Pood Adulteration Act, 1919, runs as follows:

No person shall, directly or indirectly, himself or by any other person on his behalf sell to the prejudice of the purchaser any artiole of food which is not of the nature, substance or quality of the article demanded by such purchasers; and no person shall, directly or indirectly, himself or by any other person on his behalf, manufacture for sale any article of food which is not of the nature, substance or quality which it purports or is represented to be : ....

(2) In any prosecution under this section it shall be no defence to allege that the vendor or manufacturer was ignorant oi the nature, substance or quality of the article sold, exposed for sale or manufactured for sale by him.

(3) In any prosecution under this section, the Court shall, unless and until the contrary is proved, presume that any article of food found in the possession of a person who is in the habit of manufacturing like articles for sale has been manufactured for sale by such person.

Comparing this section with Section 8 of the Bihar enactment on the subject, it is certainly clear that most of the conditions provided in the Bengal enactment are not to be found in the Bihar enactment. I am of opinion that the only exception in the case of a prosecution u/s 3 (1) is to be found in Section 14 and the enactment should be construed according to the plain meaning of the words in Section 3 (1). Now, I have to consider whether upon the facts petitioner l can be held liable u/s 3 (1), Bihar Act 2 of 1919. The position is that a servant of the firm consisting of four partners sold ghee that was not genuine. Can it be said that the petitioner who does not sit in the shop and actually carry on the business himself is liable to criminal prosecution? The authorities cited on behalf of the prosecution indicate that in certain set of circumstances, chiefly in the case of licensees, a master is liable for the act of his servant, evidently on the theory that the master has control over the act of his servant. Has petitioner l such a control over the servant as to make him liable for the act of the servant On the findings of the lower appellate Court, evidently he had not because he did not sit in the shop and actually carry on the business himself. Even on the theory that a partner is an agent for the other partners, the position that we find ourselves in this case is that the partners of petitioner Ramchand Ram were his agents and under them was working the servant who sold the ghee, that is to say, the petitioner Ramchand Ram is to be held liable for the act of the servant of his agents. There is no direct case on the point and it is a case of first impression. But I am of opinion that, as at present advised, the liability is too remote and there is some doubt in my mind about the criminal liability of the petitioner. I would, therefore, give the petitioner Ramchand Ram the benefit of doubt in this case, set aside his conviction and sentence and direct that the fine, if paid, be refunded. In the result the petition of Ramchand Ram is allowed and that of Mani Ram is dismissed.