BRIJ MOHAN DAS Vs. EMPEROR

JUDGEMENT

(1.) These are applications in revision, in which a common question of law arises, by persons who have been convicted tinder Section 4, U.P. Prevention of Adulteration Act, 1912. 1a. In Criminal Revision No. 177 the relevant facts as found by the learned Magistrate can be stated shortly. Brij Mohan Das is the proprietor of a shop known as the Producing Company, Benares, and Jagan Nath Prasad is an employee who was in charge of the shop on 18- 2-1946. On that date the Sanitary Inspector of the Benares Municipality visited the shop in company with the Health Officer and purchased a sample of mustard oil which was offered for sale in the shop. The learned Magistrate has found as a fact that the substance sold to the Sanitary Inspector was sold under the description of pure mustard oil. The sample taken by the Sanitary Inspector was sent to the Public Analyst. The report of the Public Analyst appears to be no longer on the record, but it is not in dispute that he found that the mustard oil contained a substantial adulteration of rape seed oil. Jagan Nath Prasad was convicted for exposing for sale and selling, and Brij Mohan Das for manufacturing, the oil in question, and an application in revision to the learned Additional Sessions Judge of Benares was rejected.

(2.) On behalf of Jagan Nath Prasad it has been argued that he has committed no offence as the sale of the mustard oil was not to the prejudice of the purchaser, reliance being placed upon proviso (b) to Sub-section (1) of the Act which provides that no article shall be deemed to have been sold to the prejudice of the purchaser: (b) where in the process of production, preparation or conveyance of such article of food or drug some extraneous substance has unavoidably become mixed therewith.

(3.) It is said that rape seed and mustard seed have certain marked similarities and that a small quantity of rape seed oil is almost invariably found in mustard oil. That this is so has been accepted by the lower Court as correct, but it has held that the Public Analyst's report makes it clear that the proportion of rape seed oil in the sample of what was sold as pure mustard oil is much more than would be found in the ordinary course. In taking this view, the Magistrate was, in my opinion, clearly right, and there is therefore no ground for interference in revision. In so far as the charge was in respect of "exposing for sale" the oil no question of prejudice to the purchaser arises, for that phrase qualifies only the sale of an article of food or a drug which is not of the nature, substance or quality demanded by the purchaser. The case of Brij Mohan Das, the proprietor of the shop, Stands however on a different footing. The learned District Magistrate convicted Brij Mohan Das for having manufactured the oil - that is to say for having manufactured an article of food which was not of the nature, substance or quality which it purported to be. Now there is no evidence that Brij Mohan Das did in fact manufacture this particular oil, and his only connexion with the transaction is an alleged telephone conversation which he had with Jagan Nath Prasad. There is evidence that the latter had a telephone conversation with someone, but Brij Mohan Das has denied that it was with him, and there is no evidence that he was the person at the other end of the line. There is therefore, no evidence directly implicating Brij Mohan Das in the manufacture or sale of the oil - that is, I think, conceded by the Crown - and consequently his conviction cannot be upheld on the ground which satisfied the learned Magistrate. It has however been argued by the Crown that the U.P. Prevention of Adulteration Act, imposes an absolute liability upon an employer, that the latter is therefore responsible for the act of his servant, and that on this ground the conviction should be maintained.