(1.)The appellant, Sarjoo Prasad was convicted by P. M. Aga, Magistrate First Class, Allahabad, of an offence under S. 7 read with S. 16 of the Prevention of Food Adulteration Act, 37 of 1954 - hereinafter referred to as the Act - and in view of a previous conviction for a similar offence was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000. The conviction and sentence were sentence were confirmed in appeal by the Court of Session at Allahabad and by the High Court of Judicature at Allahabad in revision. The appellant has appealed to this court with special leave under Art. 136 of the Constitution.
(2.)The appellant was an employee of one Thakur Din who carries on business at 92-C, Mirganj, Allahabad, as a vendor of edible oils and provisions. On September 22, 1956, a Food Inspector of the Allahabad Municipality purchased from the appellant a sample of mustard oil exposed for sale in the shop which on analysis was found to be adulterated with linseed oil. Thakur Din and the appellant were prosecuted in the court of First Class Magistrate, Allahabad for selling adulterated food. The Magistrate convicted Thakur Din to pay a fine of Rs. 200 and the appellant to suffer rigorous imprisonment for one year and to pay a find of Rs. 2,000.
(3.)The expression "sale" is defined by S. 2(xiii) in the Act as meaning sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article. The definition includes not only actual sale but agreement for sale, offer for sale, exposure for sale and even possession of articles for sale and attempt to sell. The appellant was in charge of the shop at the time when mustard oil was sold to the Food Inspector. Mustard oil was exposed for sale and it was in the possession of the appellant and he actually sold it. But counsel for the appellant contends that by S. 7 of the Act, the owner of a shop alone is prohibited from selling adulterated food, and a servant employed in the shop who sells food on behalf of the employer is not a "person", against whom the prohibition operates. Counsel says that an employee in a shop who with knowledge that an article of food is adulterated, sells it is guilty of aiding and abetting his employer, but without such knowledge he is not liable to be punished for contravening the provisions of the Act.