SHEOKARAN LALL SETH Vs. EMPEROR

JUDGEMENT

(1.) In these two revisions, the petitioners have been convicted under Section 13, Hoarding and Profiteering Prevention Ordinance, 1943. The petitioner, Sheokaran Lall Seth has been sentenced to a fine of Rs. 1000 and the petitioner, Dwarka Prasad has been sentenced to three months rigorous imprisonment. There was also an order of forfeiture of the cloth which according to the prosecution was offered for sale beyond the price fixed by Government. The petitioner, Sheokaran Lall Seth is the proprietor of the shop and the petitioner Dwarka Prasad was a servant employed in the shop. According to the prosecution on 8-11-1944 the complainant Mr. K.N. Sahay a Sub-Deputy Magistrate with others went to the shop of the petitioner Sheokaran Lall in order to purchase woollen cloth. Dwarka Prasad the salesman in the shop showed them two thans of check flannel demanding Rs. 20 per yard as its price, The Sub-Deputy Magistrate after referring to the price list declared that the controlled price was Rs. 10 and odd and asked Dwarka Prasad to sell the cloth at that rate, but the latter did not agree. The matter was then referred to the police and it would appear that thereafter Dwarka Prasad took a more reasonable attitude declaring that the cloth may be taken, but a receipt must be given and the whole matter should be dealt with the proprietor after he returned. Admittedly Sheokaran Lall was not in the shop at the time and it is said that he was in Calcutta. On the facts found by the Courts below there cannot be the slightest doubt that woollen cloth was offered for sale in the shop of Sheokaran Lall Seth at the rate of Rs. 20 per yard, whereas the controlled rate should have been no more than Rs. 10 and a few annas. With these findings we see no reason to interfere.

(2.) As the arguments presented on behalf of the petitioners present different aspects for discussion, I would first of all take up the case of the petitioner Dwarka Prasad. It was urged on his behalf that he should not have been convicted at all even assuming that he offered for sale the cloth in question as Section 4 of the Ordinance provides that no dealer or producer shall sell or offer for sale to any person any article for a price exceeding the maximum fixed by notification under Clause (c) of Sub-section (1) of Section 3. A salesman in a shop cannot be regarded either as a dealer or a producer. Section 2 defines who is a dealer and who is a producer . Section 4 must be read with Section 2. Section 13 merely provides penalties for the contravention of any of the provisions of the Ordinance. Following is the definition of the word "dealer" in Section 2(b): " Dealer means a person carrying on the business of selling any article, whether wholesale or retail"; and the word producer has been defined in Section 2(e) as follows:" producer includes a manufacturer". Now it is quite clear that a servant employed as a salesman in a shop is not a producer according to the definition of the word in the Ordinance. The real question is whether he comes within the meaning of the word dealer as defined in the said section. Reliance has been placed on behalf of the petitioner on the Full Bench decision reported in Mangat Ram Pritam Dass v. Emperor A.I.R. 1945 Lah. 281. According to this decision a servant employed in a shop is not a dealer according to the definition given in Section 2(b). According to their Lordships such a person could not be regarded as carrying on the business of selling any article. On behalf of the Crown reliance was placed on a Division Bench decision of the Calcutta High Court in Miss A. Heape V/s. Emperor . In the Calcutta case their Lordships thought that on the whole a servant employed in a shop could be regarded as a person carrying on the business of selling any article and accordingly they convicted one Miss Heape for contravention of the provisions of the Ordinance although they treated the offence as a technical one. It seems to me that the reasoning of the learned Judges of the Lahore High Court is more in accord with the words used in the section which defines the expression dealer than the view taken by the learned Judge of the Calcutta High Court. It seems to me a servant in a shop is not carrying on the business of selling any article. The person who is really carrying on the business of selling any article of the shop is the proprietor. A servant is a mere employee to sell such articles as may be given to him by the person who carries on the business of selling any such article, and I would respectfully agree with the view of the learned Judges of the Lahore High Court when they say: "A servant no doubt conducts sales on behalf of an owner, but by merely discharging this function he does not convert himself into a dealer". In the circumstances the petition of Dwarka Prasad must be allowed as he was not a dealer and, therefore, did not contravene the provisions of Section 4 of the Ordinance and so could not be punished under Section 13.

(3.) The case of Sheo Karan Lall Seth stands on a different footing. As a proprietor of the shop he was certainly carrying on the business of selling an article and, therefore, must be regarded as coming within the definition of the expression dealer in Section 2(b) of the Ordinance. It was, however, urged on his behalf that he was absent and there was nothing to show that he had instructed his servant to sell beyond the controlled price and that he could not be held liable for any contravention of the Ordinance by his servant. Admittedly he was not present when his servant offered for sale the cloth. It was also pointed out on his behalf that since the incident of the 8 November 1944 the petitioner has dismissed Dwarka Prasad for having offered for sale cloth beyond the controlled price. Section 4 states that no dealer shall sell or offer for sale. In my opinion when a servant is employed by the owner of a shop and sells articles of the shop on behalf of the owner, it is the owner who is selling or offering for sale. So long as the servant is acting within the scope of his authority and there is nothing to show that he was acting beyond it, that is to say, selling articles of his master at a high rate and thereby making a personal profit, the act of sale or the offer to sell no doubt is an act of the servant, but it is the owner of the shop who must be regarded as the person who is selling or offering for sale. The mere absence of the owner from the shop at the time of the transaction would not, in my opinion, be a good defence to the charge. This point came up for consideration before the Allahabad High Court and reference may be made to the case in Emperor V/s. Harish Chandra Bagla where Malik J. has reviewed several English cases and has expressed a view similar to mine and it would be unnecessary for me to burden this judgment with a review of the various cases cited by him in his judgment. In my opinion, therefore, the conviction of Sheokaran Lall Seth is correct. It was urged on behalf of the petitioner that even if he should be found guilty of the offence, it should be regarded as a technical one and the sentence imposed was much too severe. Reference was made to the observations of the learned Judges of the Lahore High Court in the Full Bench case in Uttam Chand V/s. Emperor A.I.R. 1945 Lah. 238. In my opinion, the sentence of Rs. 1000 does appear to be somewhat severe, in the circumstances; but I am inclined to think that offences of this kind should not be treated too leniently. It seems to me, however, that there is something to be said for the petitioner when he took action against his servant in dismissing him for contravening the provisions of the Ordinance and I would accordingly reduce his sentence to a fine of us. 100, but would maintain the order of forfeiture of the cloth in question. The result is that the petition of Dwarka Prasad is allowed, his conviction and sentence set aside and the petition of Sheokaran Lall Seth is dismissed with the above modification. The fine in excess, if paid, must be refunded. Manohar Lall, J.