Chhangani, J. - (1.)THIS is an appeal by the State against the order of the Sub-divisional Magistrate, Sirohi dated 10th of April, 1958 acquitting the respondent Tejraj of an offence under sec 16 read with sec. 7 of the Prevention of Food Adulteration Act No. XXXVII of 1954 (hereinafter referred to as the Act).
(2.)THE prosecution case may be briefly stated as follows: - THE respondent Tejraj carries on business as a commission agent at Sheoganj. He got some tins of ghee from Heeralal Pyarelal Agarwal for sale through his agency. On 5th of May, 1956, Dharam Singh, the Food Inspector went to his shop and made a test purchase of ghee worth As. -/8/-. THE ghee was taken in 3 bottles which were duly sealed. Out of these 3 bottles, one was given to the accused and the other was sent to the Public Analyst at Jodhpur for examination. THE Public Analyst at Jodhpur having reported that the ghee was adulterated and did not conform to the standard of genuine ghee, prescribed by the rules made under the Marwar Pure Food Act No. XVI of 1946, a complaint was filed against the respondent under sec. 16 of the Act. THE accused admitted that he carries on business as commission agent and that he had received 10 tins of ghee from Heeralal Pyarelal of Ratanpur along with other commodities. Out of 10 tins of ghee, he had sold 2 tins and at the relevant time, the remaining 8 tins were with" him. It was also admitted that a test purchase of ghee worth As.-/8/- was made from him by the Food Inspector. He, however, pleaded that the ghee had not been purchased by him and that he had received it sealed from Heeralal Pyarelal and that he had no knowledge that it was adulterated. In these circumstances, he did not plead guilty to the charge.
The prosecution examined Dharam Singh and Achaldass in support of the prosecution. The accused, however, led no defence. The trial Magistrate found that the prosecution had failed to prove that the accused was entitled to any share in the profits on the sale of ghee ; that the accused was only entitled to receive commission and that there was no proof that the accused had any knowledge that the ghee was adulterated. Relying upon some observations in Municipal Board, Bareilly vs. Ramgopal (1), the trial Magistrate held that as a commission agent, the accused could not be liable without proof that he had knowledge that the ghee was adulterated.

The State has come up in appeal and it has been contended on its behalf that the Prevention of Food Adulteration Act has been enacted in the interest of public health to prevent adulteration of food stuffs and that it imposes qualified duties upon vendors and creates absolute penal liability irrespective of mens rea; and that on any other view, a very wide door will be open to the evils which the Act was intended to guard against. It is urged that since the respondent having exposed ghee for sale, had sold ghee to the Food Inspector, the offence against him stood proved and it was wholly unnecessary to go into the question of miens rea.

The answer on behalf of the respondent is that on the language of secs. 7 and 16 of the Act, an absolute liability has been fastened only upon persons selling goods owned by them for their benefit who have been described as primary sellers and that it cannot be extended to servants and commission agents selling goods belonging to others, who are described as secondary sellers. It is, however, conceded that they can be liable under the general law for abetment provided mens rea or guilty knowledge is proved against them.

There are diverse views on the matter and we may observe that the question is not altogether free from difficulty and merits a very careful scrutiny.

A similar question in connection with the interpretation of sec. 6 of the Bengal Food Adulteration Act, 1919 which was worded similarly, came up for consideration before Rankin C. J. and Patterson J. in Peary Mohan Saha vs. Harendra Nath Roy (2). The material words of sec. 6 on which the controversy centered were as follows - "No person shall directly or indirectly himself or by any other person on his behalf sell, expose for sale or manufacture or store for sale any of the following articles etc."

It will be obvious that both the sections contain the expression, "himself or by any other person ton his behalf", which is relied upon by the learned counsel for the respondent in support of his contention. It was contended before their lordships, "that the opening words of the first clause of sec. 6 are designed to constitute the sale......in contravention of the provisions of the section, an offence on the part of the master or principal on whose behalf the sale is made, but that the servant or other person selling on behalf of the principal is not guilty by reason of his act." It was also contended that, "the section should not be construed in the light of the interpretation put by the English decisions upon similar but somewhat different, words in sec. 6 of the sale of Food and Drugs Act, 1875." The prosecution in that case contended that, "the opening words of the section cannot and are not intended to cut down the effect of the words "no person shall sell", that the acts which are made offences by the section are physical acts, that the question of the party who is responsible as a matter of contract to the purchaser is irrelevant and that the servant in such a case as in the present, is a person who does the prohibited act himself and that the effect of the words in a case like the present is to make both the servant and the master liable as offenders against the section." "The words merely elaborate and emphasize the prohibition against certain classes of acts being done at all." Rankin C.J. overruled the defence contention and held that the agent Of servant is within the prohibition of the words "no person shall sell." He observed that, "the legislature is not necessarily contemplating a person who has a choice to sell at his own hand or by any other person on his behalf. It is concerned to make the act of selling an act which is imputable both to the person with whose hand it is committed and to any other person, if such there be, on whose behalf it is committed.

In Emperor vs. Ramgopal (3) interpreting the U.P. Prevention of Adulteration Act No. VI of 1912, it was held that a shop-keeper who as a commission agent allows another person to sell ghee at his shop on payment of commission and charges his commission fee must be deemed to be interested in the sale to the extent of the commission and so he could be said to have taken part in the sale when the goods were sold in his presence and would be guilty with the actual seller.

(3.)IN another Allahabad case, Municipal Board, Bareilly vs. Ramgopal (1) relied upon by the Magistrate, the facts were very peculiar. There, the accused did not sell himself ghee on behalf of the owner but allowed to the owner to sell it on the premises of his shop, the consideration for such license being a commission fixed by reference to a percentage of the sale price. IN these circumstances, it was held that he was not commission agent in the ordinary sense, although described as such, and that he could not be said to have taken part in the sale. He was treated as a mere licensor of a right to sell ghee on his premises. The learned Judges, however, made some observations regarding the necessity of establishing mens rea in case of persons "exposing goods for sale, which are, however, immaterial for the purposes of the present case.
So far as the earlier State Acts are concerned, it may safely be observed that they were interpreted to impose absolute liability upon masters, principals, servants ana commission agents. Recently, however, secs. 7 and 16 of the present Act have been differently interpreted, so as to exclude the fastening of absolute liability on servants.

In re S. Moses (4), a Division Bench of the Madras High Court emphasized the words, "either by himself or any person on his behalf" and made the following observations - "The clear language of sec. 7 is to" the effect that a person should himself sell or sell through any other person on his behalf, in order to be brought within the mischief of that section, and the provision cannot be extended to include what has not been actually, intended by the legislature, viz. that a person who sells on behalf of another should also be made liable to the penalties prescribed. Some meaning or significance has to be attached to the word "himself" and to the words "by any other person on his behalf occurring in the Indian statute. They cannot by any means be ignored when the true intention of the legislature is to be found out."

In support of their conclusion, the learned judges referred to the differences in the scheme, language and the extent of punishments in the English and the Indian statutes. They expressed their inability to agree with the interpretation adopted by Rankin C.J. in Peary Mohan Saha vs. Harendra Nath Roy (2) with an observation that it went largely on the English ruling, without considering the fact that the English ruling related to the English Food and Drugs Act which is far wider in its scope in fixing absolute liability than the Indian Act and much more lenient in the punishment for the first and subsequent offences.

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