The Public Prosecutor vs R. Narayanaswami Reddy

Ramaswami, J.—This is an appeal preferred by the State of Madras against the order of acquittal passed by the learned Sub-Magistrate of

Tiruvannamalai in C.C. No. 662 of 1954.

The facts are: In Tindivanam Road in Tiruvannamalai there is a hotel by name "" Modern Cafe "". The proprietor of this hotel is Narayanaswami

Reddiar and the head-cook who is in charge of the supply of meals at the hotel is C.S. Harihara Ayyar. On 30th November, 1953, the Sanitary

Inspector of Tiruvannamalai, Sri N. Ramachandra Rao, took samples of ghee prepared for sale along with the meals and sent the same to the

analyst. The Government Analyst has found that there was an admixture of adulterated fat of 78 percent. Therefore, a prosecution was launched

against the proprietor and the head-cook who pleaded guilty was convicted and sentenced to pay a fine of Rs. 20 and the proprietor who pleaded

''not guilty'' was acquitted on the ground that he was not present at the hotel that day. This appeal has been filed on the ground that the proprietor

was equally responsible, notwithstanding his absence, for the sale through his employee of the adulterated ghee.

The contention of the learned Public Prosecutor raises the important question of criminal liability of a master for the acts of his servant under a

special statute like the Madras Prevention of Adulteration Act III of 1918, Section 5.

Section 5 lays down that every person who offers for sale ghee which is not up to the standard of purity prescribed by the State Government

shall be punished for the first offence with fine which may extend to Rs. 100 and for every subsequent offence with fine which may extend to Rs.

500.

Therefore, before a person can be convicted of the offence of offering for sale ghee which is not up to the standard of purity prescribed and

which would incidentally make it to be not of the nature, substance or quality which it purports or is represented to be, there must be evidence to

show that the ghee was adulterated and that the ghee was offered for sale. Whether the ghee is to be deemed to be adulterated or not is a question

of law and it is not a matter on which the Chemical Examiner should be required to express an opinion. What he has to do is to state the result of

his analysis and leave it to the Court to determine whether on those results the offence charged is proved or not: Narinjan Das v. Emperor AIR

1930 Rang. 51 : 35 CrI. L.J. 681. This has been done in this case and I have already reproduced the report of the analyst that the ghee contained

78 percent. of fat not derived from milk or cream. I need not point out that Section 5 does not exempt from punishment a person because the

amount of adulteration is negligible or is universally tolerated. This may affect the question of sentence but cannot affect the conviction: Budh Sen

Vs. Emperor, .

The prosecution has further shown that this adulterated ghee was offered for sale. The hotel-keeper who stores and serves to his customers with

their meal ghee which is found to be adulterated commits an offence u/s 5(1)(b) of the Act, Public Prosecutor v. Narayana Ayyar 1939 M.W.N.

1128. The hotel-keeper will also be guilty of a sale if his employee in the shop sells the ghee in his master''s absence by giving the Sanirary

Inspector a sample by purchase. It is quite true that in The Public Prosecutor Vs. Srinivasa Rao and Another, , Lakshmana Rao, J., held that a

secretary and an accountant of a co-operative society supplying butter to the Sanitary Inspector u/s 14 cannot be convicted u/s 5(1)(d) and Rules

24, 28 and 29 framed u/s 20(2), as supply of sample to the Sanitary Inspector u/s 14 is not a sale, nor can the secretary or the accountant be said

to offer the butter for sale. Subsequently Horwill, J., in In Re: Bellemkonda Kanakayya, , adopted the view of Lakshmana Rao, J. These rulings

were considered by Kuppuswami Ayyar, J., in Public Prosecutor v. Marayan Singh (1944) 1 M.L.J. 16, by Govinda Menon, J., in The Public

Prosecutor Vs. Y. Ramachandrayya and Another, , and by me in Public Prosecutor Vs. Dada Haji Ebrahim Helari, and Public Prosecutor Vs.

K.V.R. Annamalai Chettiar, , and we came to the conclusion that this transaction would amount to a sale. Therefore, if the adulterated ghee is

stored and then served to the customers along with the meal or the ghee is sold even though by way of sample to a Sanitary Inspector, the

transaction would be an offence either u/s 5(1)(b) or 5(1)(d). In this case we are concerned only with Section 5(1)(d).

A person who sells ghee which is found to be below the standard is liable to a conviction unless he successfully establishes the defences which

are set out in the Act. It is not a defence to a charge u/s 5 that the accused was not regularly engaged in selling ghee: Emperor Vs. Nur Ahmad .

The only point for consideration therefore is whether the master is liable for the act of his servant done in his absence.

In English Criminal Law, a master is not criminally liable at common law for the acts of his servant; provided that an indictment lies against a

master for a public nuisance committed by the servant within the scope of his employment: R.v. Stephens (1866) L.R. 1 Q.B. 702. Except under

or by necessary implication from the express terms of a statute creating a criminal offence, a master is not liable under such statute for the act of his

servant; per Pollock, B., in Budd v. Lucas L.R. (1891) 1 Q.B. 408, per Collins, J., in Hardcastle v. Bielby (1892) 1 Q.B. The rule at common law

was that to constitute a criminal offence the actus reus must be accompanied by a mens rea: R. v. Holbrook L.R. (1878) 4 Q.B.D.42; Chisholm v.

Doulton (1889) L.R. 22 Q.B.D; R. v. Prince 44 L.J.M.C. 132. It followed that the rule of the liability of a master for the acts of his servant done

within the scope of his employment had no application to the criminal law: Woodgate v. Knatchbull 2 T.R. 148, per Ashurt, J., in R. v. Barry

(1865) 4 F. & F. 389, per Martin, B. The master was liable criminally only in the case of Such acts of his servant as he knowingly aided and

abetted or procured or (in the case of felonies) where he was knowingly an accessory after the fact to his servant''s acts; see e.g., Howells v.

Vynne 32 L.J.M.C. 241, Gough v. Rees (1930) 142 L.T. 424. The exception in the case of proceedings for a public nuisance is explained by the

consideration that though these proceedings are in form criminal, they exist in substance for the enforcement of civil rights, so that evidence which

will support the action will support the indictment: R. v. Stephens (1866) L.R. 1 Q.B. 702. Therefore, for any public nuisance committed by the

servant in the carrying on of his master''s business, the latter is criminally liable, though he may not have known of the servant''s act and has in fact

forbidden it. See Pollock, B., in Budd v. Lucas L.R. (1891) 1 Q.B. 408.

In other words, this analysis covered two classes of crimes; crimes requiring mens rea including those requiring heightened or specialised forms

of mens rea and crimes requiring negligence; that is to say, inadvertent negligence. In India also the same principles have been applied though there

is generally no room for the application of the doctrine that an act does not make a man guilty without a guilty intention in the Indian statutes, as

their terms are precise and contain within themselves the precise and particular elements that go to make up the offences referred to in those

statutes. Where the doctrine of mens rea is intended to come into operation and a guilty mind is deemed essential for the proof of an offence, the

statute itself used the words like ''knowingly'', ''willingly'', ''fraudulently'', ''negligently'' and so on. In cases where it is not an essential element of the

offence forming the subject-matter of any penal law, it is omitted and the mere commission of an act or the failure to do it is deemed enough to

bring the person charged within its language. In the first of these cases mens rea has to be proved by the prosecution to establish the offence which

it desires to bring home to the accused and in other cases it may or may not form a ground of defence and where it so forms even, it has to be

established by the defence. In cases where the statute requires an intention to be proved as an essential part of the crime the prosecution must fail if

it is not proved. To such cases the general defence that is advanced is the absence of mens rea or as it is generally put in the language of Indian

criminal jurisprudence, a bona fide claim of right or the honest and reasonable belief entertained by the accused of the existence of facts which, if

true, would make the act charged against the accused an innocent one.

But both in England and in India, there is a third group of crimes which do not require any kind of legal fault on the part of the accused. They

may be sub-divided into crimes requiring fault on the part of some one but not the accused (vicarious responsibility), and those not requiring fault

on the part of any one (strict responsibility, absolute prohibition). Crimes of strict responsibility are those in which the necessity for mens rea or

negligence is wholly or partly excluded. Vicarious responsibility arises when the master is made liable where his servant did the act within the scope

of his employment, whether or not the master knew of or forbade the act. In recent years distinction between strict and vicarious responsibility is

becoming more and more blurred. At first sight it might seem as though the two are related as concentric circles, strict responsibility being the

wider. In strict responsibility the defendant is affected by the act of a stranger as well as by that of his servant whereas in vicarious responsibility he

is affected only by the act of his servant and not always then. This distinction, though partly true, does not state the full legal difference. The full

difference is this: strict responsibility does not dispense with something like a personal actus reus whereas vicarious responsibility does. Conversely,

strict responsibility dispenses with the need for mens rea altogether whereas vicarious responsibility does not dispense with the need for mens rea

on the part of the servant. (see Professor Glanville L. Williams in his Criminal Law (General Part) (1953) Chapters 7 and 8 (Stevens & Sons; Ltd.)

The same statute may, of course, create both strict and vicarious responsibility. But this is seldom the case. We are concerned here only with

vicarious responsibility.

These statutes dispensing with the need for mens rea or requiring it in a modified form in public welfare offences relate to (a) offences

connected with sale; (b) offences of possession; (c) road traffic and (d) master and servant. We are concerned here with the last category.

The concepts of strict and vicarious responsibility have come in for severe criticism at the hands of distinguished jurist Consults, the latest being

Professor Glanville L. Williams in his Criminal Law (General Part), 1953, Chapters 7 and 8, at page 238 and following. Even Judges have come to

view the tendency to dispense with mens rea with some trepidation: Atkin C.J., In Re Ispahani L.R. (1921) 2 K.B.73, and Goddard, C.J., in

Evans v. Dell (1937) 1 All E.R. 349, and again in Brend v. Wood (1946) 175 L.T : 62 T.L.R. 463, and Harding v. Price (1948 ) LR 1 K.B.700,

and Younghusband v. Luftig (1949) LR 2 K.B.370. In fact the Legislature itself realizing the harsh results arising from these concepts has sought to

mitigate it by introducing what is known as the third party procedure and an example of which is to be found even in the very Prevention of

Adulteration Act, u/s 6(3).

To the increasingly large number of modern statutes under which the master is liable where his servant does the act (with the necessary mens

rea, if any, as required by the statute) within the scope of his employment, whether or not the master knew of or forbade the act, per Goddard,

C.J., in Barkat v. Levinson (1950) 2 All E.R. 827, the Prevention of Adulteration Act has been added, other categories being offences against

revenue, forest laws, etc. The penalty is directed against either public welfare cases or those in which though the proceedings are criminal in form

they are only summary modes of enforcing civil rights, per Wright, J., in Sherras v. De Rutzen L.R. (1895) 1 Q.B. 922. This vicarious

responsibility in such matters is erected on the following grounds. In the case of public licensees, like hotel-keepers, licences are only granted to

persons of good personal character and it is obvious that the object of so restricting the grant of licenses would be defeated if the licensed person

could, by delegating the control and management of the house to another person who is altogether unfit to keep it, free himself from responsibility

for the manner in which the house was conducted, per Gave, J., in Masey v. Morris L.R. (1894) 2 Q.B. 412. Secondly, the law would be stultified

if the lincence-holder could evade responsibility by keeping out of the way, per Lord Russell, G.J., in Commissioners of Police v, Cartman (1896)

LR1 Q.B. at 655. In such cases knowledge is imputed to the master who puts his servant in his place so as to represent him for the purpose of

acquiring such knowledge: Somerset v. Hari (1888) LR 123 B.D, Allen v. Whitehead (1930) LR 1 K.B. 211, see also Wilson v. Murphy (1937)

1 A.E.R. 315. Thirdly it may be said that a person may properly be punished for the crime of his subordinate because the threat of such

punishment may induce him and others to exercise supervision over the subordinates. Fourthly, vicarious responsibility is thought to be necessary in

tort because the servant''s pocket is usually too shallow to bear the damage that he may negligently occasion; similarly criminal punishments which

are usually fines in the case of these Statutes, would be equally futile if pauper servants are proceeded against leaving it open to the master to

employ a succession of such servants and thereby defeating the operation of the Statutes enacted for the advancement of public welfare. Fifthly,

the master can always resort to third party procedure and in nearly all the public welfare offences that come before the Courts there has been at

least negligence on the part of the defendant or his servant. Where it is the servant who has been solely negligent, the defendant can escape when

the third party procedure is open to him. It is only rarely that a person is convicted of public welfare offences where the real fault was that of a third

party over whom the defendant had no control. In short, the responsibility of the master subject to the third party procedure is absolute and under

these statutes a master is liable where his servant did the act (with the necessary mens rea, if any is required by the Statute, within the scope of his

employment whether or not the master knew of or forbade the act, Redgate v. Haynes 33 L.T. 729 Police Commissioner v. Cartman (1896) LR 1

Q.B. 655; Davies v. Harvey (1874) LR 9 Q.B. 433; Booth v. Helliwell (1914) L.R. 3 K.B. 252; Holt Brewary Co. v. Thomson 36 T.L.R. 519;

Mellor v. Lydiate L.R. (1914) 3 K.B. 1141; Spiers and Pond v. Bennett L.R. (1896) 2 Q.B. 65, Peark''s Dairies 120 L.T. 84, etc.

Typical illustrative decisions relating to strict and vicarious responsibility which, as pointed out by Glanville Williams, are fast getting entangled

with each other are: A licensee was charged u/s 16 of the Licensing Act, 1872, with the offence committed by a licensed person who supplies

liquor to a constable on duty without the authority of his superior officer. His servant had knowingly supplied liquor in such circumstances without

the knowledge of his master.'' Held, the licensee was liable: Mullins v. Collings (1874) L.R.9 Q.B.292. A licensed occupier who slaughters sheep

in the pound of the slaughter-house or in view of other sheep. The act had been done knowingly by his servant in disobedience of orders, and so

as to save himself trouble. Held: the act was done by the servant within the scope of his employment and the master was guilty: Collman v. Mills

L.R. (1897) 1 Q.B. 396, An occupier of premises is liable to be convicted u/s 44 of the Metropolitan Police Act, 1839, of knowingly suffering

prostitutes to meet together in his refreshment house or remain therein, where the delegates the conduct of the house to his manager, who

knowingly allows prostitutes to meet and remain there; Allen v. White-head L.R. (1930) 1 K.B. 211. In Provincial Motor Cab Co. v. Dunning

L.R. (1909) 2 K.B. 599, a statute required vehicles to have an illuminated number plate. A limited company, cab proprietors, had properly fitted a

cab and had appointed a foreman to see that their cabs complied with the regulations; but a driver altered his lamp so that it hung too low. The

Magistrate found the Company careless and convicted it of abetting the driver''s offence, and conviction was affirmed on appeal. In Mousell Bros.

Ltd. v. L & N.W. Ry L.R. (1917) 2 K.B. 836, a statute made it an offence for an owner or person having the care of goods to give a false

account with intent to avoid payment of tolls. This statute was held to saddle such owner or person with vicarious responsibility. In Burns v.

Scholfield (1922) L.T. 382, a master was held responsible for the act of his servant in abstracting water from a street hydrant. Similarly, in Griffiths

v. Studebakers, Ltd. L.R. (1924) 1 K.B. 102, responsibility was imposed for the act of a servant in exceeding his master''s motorcar licence. In

Barket v. Levinson L.R. (1951) 1 K.B. 342, the question turned on the Landlord and Tenant (Rent Control) Act, 1949, Section 2(1) of which

provides that a person shall not, as a condition of the grant, etc., of a tenancy, require the payment of a premium. The defendant who managed a

block of flats on behalf of the owners, authorised a rent-Collector to let one of the flats to Mrs. S., but there was no evidence that he authorised

the Collector to negotiate the terms of the tenancy. The Collector illegally demanded a premium. A prosecution of the defendant failed, because on

the opinion expressed by Denning, L.J., the master is not criminally responsible except for what he has expressly or impliedly authorised. In

Slatcher v. George Mence Smith, Ltd. (1951) LR 2 K.B. 631, it was held that a defendant did not "" act "" innocently under the Merchandise

Marks Act if his servant acted wrongly.

Bearing these principles in mind if we examine the facts of this case, there are no grounds whatsoever to acquit the respondent. This master has

not resorted to the third party procedure open to him u/s 6(3). Therefore, he must be attributed with the knowledge of his servant whom he has put

in his place so as to represent him for the purpose of acquiring such knowledge. In such a case upon evidence being given of the commission of the

forbidden act by the servant, concerning which there is no dispute, the master is liable.

I therefore set aside the order of acquittal by the lower Court and convict the respondent as charged and sentence him to pay a fine of Rs. 20

or in default to undergo simple imprisonment for two weeks. Time to pay the fine is ten days from the date of receipt of these records in the lower

Court.