SEW KARAN Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) These were two Rules calling upon the Municipal Magistrate of Calcutta and the Chairman to show cause why the conviction and sentence passed upon Sew Karan, proprietor, should not be set aside on the ground that he did not sell, or cannot be said to have sold, the ghee himself, and to determine whether Section 495 of the Calcutta Municipal Act applies to any person other than the actual hand employed in the sale.

(2.) Now, as regards the first question, we can have no doubt, on the authority of Brown v. Foot (1892) 17 Cox. C.C. 509 that on the law, which in England is exactly the same as in this country, indeed, Section 495 appears to have been based entirely on Section 6 of the English Act, it has been held that a servant, employed by his master to sell any article, who adulterates it, thereby renders his master liable under the section, although there is no connivance of the master; and non-connivance of the master is no defence, though the entire absence of connivance on his part might in the discretion of the convicting Magistrate be a ground for mitigation of the penalty. Now, the ground upon which Mr. Justice Wills proceeds in that case is one which equally covers the case of an agent or a firm, because it is not directed as a prohibition against a person, but, as Wills J. says, it imposes a positive prohibition against the sale, of adulterated articles. This was the point upon which we had doubt when we issued the Rule, owing to the wording of the law both in England and in India, the section saying "no person shall sell." But it appears to be settled law that the prohibition is positive, as we have seen, against the sale of adulterated articles, and any person who is legally responsible for such a sale conies within the section.

(3.) But it has been argued that this Sew Karan is only a commission agent for certain producers of ghee up-country, that he collects ghee and other things from them and, as they sell in Calcutta at certain shops which go in the names of Lalchand Sew Karan, the Health Officer appears to have taken proceedings against Lalchand Sew Karan, and we see that the licensee for wholesale dealers in ghee at No. 2, Ram Kumar Rakhit s Lane and for selling ghee at No. 9. Ram Kumar Rakhit s Lane is Lalchand Sew Karan. The Magistrate, however, treated the case as if Lalchand was the servant of Sew Karan, and the finding on the evidence is that Lalchand was the hand that actually sold the ghee to the Inspector. On the view we take of the law, if Lalchand and Sew Karan are partners, they are both responsible for everything which is sold in their name at shops bearing both their names; and if they are master and servant, it is clear on the English authorities that the master is liable for the act of his servant.