K.P.S.SANDHU, J. - (1.)PETITIONER Hawa Singh and his co -accused, namely Balwant Singh were tried, convicted and sentenced to R.I. for six months and to pay a fine of Rs. 1000/ -, in default R.I. for three months each under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) by the learned Sub Divisional Judicial Magistrate, Bahadurgarh, vide his order dated 27.4.1981. On appeal, conviction and sentence of Hawa Singh petitioner were maintained, but Balwant Singh, co -accused of the petitioner was acquitted by the learned Sessions Judge vide his order dated 26.2.1983 as the charge against him did not stand proved. The petitioner has come up in revision to this Court.
(2.)THE prosecution case is that shop of Balwant Singh was raided by Abhe Ram Nehra, Food Inspector on 27.6.1980. Hawa Singh petitioner servant of Balwan Singh was present at the time of the said. The Food Inspector after disclosing his identity purchased Besan and sample of the same was sent for analysis. According to the report of the Public Analyst it contained some living weevils and living meal -worms.
(3.)THE short and the only contention raised by Mr. B.S. Malik, learned counsel for the petitioner is that admittedly the petitioner was a servant employed by Balwant Singh owner of the shop from where Besan was purchased and the sample was taken. A plain reading of section 16(1)(a)(i) of the Act would show that only a person who is selling the article himself or through another person, would be liable and not the person who is selling on somebody's behalf. The relevant clause reads as under : - "16(1) Subject to the provisions of sub -section (1 -A), any person - - (a) whether by himself or by any person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food - - - - - - (i) which is adulterated within the meaning of sub -clause (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees."
To support his contention, Mr. Malik has placed reliance on an authority of this Court reported as Bhagwandass v. The State and another, AIR 1962 Punjab 419, wherein it has been held that : - "Sections 7 and 16 do not primarily apply to the servant, the secondary seller of adulterated food unless he sold it for his own benefit the servant selling the food on behalf of his master can only be made liable for aid or abetment of the offence on proof of guilty knowledge express or implied. Prima facie the words "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute" in Section 7 indicate that the person who is guilty of an offence in case any of (sic) the provisions of the section or contravened is the principal. It is not correct to bring the case of a servant under the word 'distribute' contained in Section 7. The word "distribute" is not to be treated in any way differently from the words "manufacture for sale, or store, sell." The material words which have to be interpreted on this point are simply the words "no person shall himself or by any person on his behalf."