STATE Vs. KUNCHU

JUDGEMENT

(1.) These four Criminal appeals are by the State, and are directed against the judgments in four calendar cases, passed by the Judicial District Magistrate at Palghat, by which he acquitted the second accused in each of them; there are thus four respondents in all these appeals together. They were each charged for an offence under S.16 (1) read with S.7 of the Prevention of Food Adulteration Act 1954, Act XXXVII of 1954, referred to hereinafter as the Act, for the sale of milk adulterated with water, in their capacity as servants of their respective masters, who themselves were the first accused in the four cases. The masters were convicted on their plea of guilty; but the acquittal of the respondents was on the ground, that as servants, they are not punishable. When these appeals came before me for hearing, in view of the importance of the questions involved, and of the conflict of opinion in other jurisdictions, they were referred to a division bench for disposal and were accordingly heard by us. The respondents did not enter appearance, and we are thankful to Sri V. Rama Shenoy for presenting the case for them, and for the assistance which he rendered to us at the hearing as amicus curiae.

(2.) S.7 of the Act, so far as it is material reads as follows:-

(3.) This mode of construing the above provisions derives support from Williamson v. Norris (1899) 1 Q.B. 7 in which, the respondent, a servant of the House of Commns, sold liquor, which was the property of the House, at a bar within its precincts, the place where it was sold, being not licensed for the purpose. S.3 of the Licensing Act, 1872 provided, that no person shall sell......any intoxicating liquor without being duly licensed to sell the same. Interpreting this section Lord Russel of Killowen, C. J. held that the sale which is prohibited, must be a sale by the person, who ought to be licensed. Every one knows that a barman or a waiter is not a person licensed. The sale struck at, is a sale by the master or the principal. The respondent was, therefore, acquitted. By parity of reasoning, the expression himself or by any person on his behalf in S.7 and 16 (1) of the Act must imply, that the person contemplated, is the master or the principal, and not the servant. Though under S.6 (1) of the Bengal Food Adulteration Act, 1919, the servant was also held to be liable by Rankin, C. J. in Pyarimohan Saha v. Harendranatha Ray his reasoning gives considerable support to the view we are taking. S.6 (1) of the aforesaid Act is in these terms: