On 18-6-1982 the Food Inspector visited the shop of Thirubuvanai Farmers Service Co-operative Society Limited and found the accused who is the Accountant of the said Society looking after the business. After disclosing his identity, the Food Inspector, as per the procedure prescribed by law, purchased gram-dhall and had it analysed. The result of the analysis showed that the article was adulterated. The accused was therefore prosecuted for an offence under S.7(1) read with S.2(1)(a)(m) and S.10(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The trial Court found that the fact of adulteration was proved that the Society had not nominated anybody and hence as per S.17(1)(a)(ii) of the Act, the accused who was looking after the business was guilty of the offence and accordingly convicted him and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/-.


2. On appeal, the Second Additional Sessions Judge, Pondicherry by Judgment dated 8th February, 1985 confirmed the conviction and sentence. Aggrieved by that judgment the accused has come before this Court by way of revision.


3. The learned counsel for the revision petitioner would contend that for holding the accused liable under S.17(1)(a)(ii) of the Act, the prosecution should prove that he was in charge of, responsible to the company for the conduct of the business of the company, and that it did not adduce such a proof.


4. In order to convict a person under the provisions of S.17(1)(a)(ii) of the Act, the prosecution has to prove that the person was in charge of the company for the conduct of the business of the company and also that he was responsible to the company for the same purpose. In this respect the evidence of P.W. 1, who is the Food Inspector, is only that the accused was looking after the business. He has not probed further into the matter. The trial Court as well as the appellate Court found that the facts of the accused issuing Ex. P-2, which is the receipt for the cash received from the Food Inspector and acknowledging the receipt of Form III were sufficient to fasten criminal liability on the accused. But such a conclusion is a hasty one. In fact those documents can be signed by any cashier or salesman; they do not show that the person who issued them was in charge of the company for the conduct of its business and was responsible to the company for the same. Therefore, upon the evidence on record the accused cannot be convicted under S.17(1)(a)(ii) of the Act. The appellate Court had however a very healthy reaction in pointing out the failure of the state to prosecute the company.


5. Learned counsel appearing for the Public Prosecutor, Pondicherry, contended that the complaint was also under S.7 of the Act and that the accused was guilty for the very fact that he effected the sale to the Food Inspector. It was strenuously agreed that apart from the liability of the Society under S.17 there was an independent liability for the actual salesman. This contention deserves deep consideration.


6. While applying S.7 of the Act, one has to attribute to the word 'sell' its legal meaning. In fact, 'sale' may involve several physical operation, like receiving the order, determining the quantity to be sold, packing the article preparing the bill receiving the amount, delivering the article, etc. Sometimes all the operations may be made by one person; sometimes several persons may be involved in the process and all those persons cannot be said they are selling in legal parlance. It is significant to note that the word 'manufacture' finds its place along with the word 'sell' in the same section. Manufacturing especially in an industrial scale, involves a multitude of persons, none of them being aware of all the materials utilised all the operations effected, the quality of finished products obtained and the purpose of those products. It will not occur to the mind of anybody to prosecute the whole chain of those engaged in the manufacturing process. One would have to determine who is manufacturing in the legal sense of the term. Similarly when more than one person is involved in the process of sale, one has to determine who are those who sell in the legal sense of the term. Persons who merely execute the orders do not sell, only the persons who decide about the sale are responsible. In order to sell there should be animus to sell; the person concerned should have discretion to sell or not to sell. Let it be made clear that animus required does not extend to quality of the article, but is confined to the act of the sale.


6A. This flows directly from the provisions of S.7 of the Act which reads as follows :-


"No person shall himself or by any person on his behalf....... sell or distribute-


(i) any adulterated food;


(ii) ..........................


Only a person possessing the animus to sell can sell himself or by any other person. An employee cannot obviously do so.


If the contention of the learned Public Prosecutor to the effect that all those involved in the operation of sale are liable, one would have to rewrite the section as follows :


#" No person shall himself or on behalf of any person . ....... sell or distribute -


(i) any adulterated food..........".


Such a course is not open to us. Therefore, employees, who work under the control and supervision of the selling person, and who are involved in the process of sale, cannot be held liable. The person who sells (in the) eye of law is the one who makes available to his employees the article to sell. In fact in modern days it is well known that the actual operation of sale can be not only by human beings but also through vending machines. Salesmen are in no better position than vending machines and it would be incongruous to prosecute such machines.


7. Returning back to the facts of the present case, the person who in the eye of law should sold the adulterated product is undisputedly the society. In such a case, as per the Act, only the society, and the persons nominated or the persons in charge of it are liable. No liability can be attached to those who are merely employees executing the orders received without any discretion vested in them. So the accused cannot be held responsible for the mere physical process involved in the legal operation of sale.


8. Learned counsel appearing for the public prosecutor in support of his contention that in addition to the company the person who actually delivered the goods and got the money was also liable, placed before me three decisions. One decision is of the Delhi High Court in Municipal Corporation of Delhi v. Desraj, 1985 (91) CRLJ 618 in which the actual offender and the person in charge of the conduct of the business were prosecuted. The person in charge of the conduct of the business was acquitted because it was not proved that he was really in charge of the business and the person who sold the article was convicted. The second decision is one of a single Judge of this Court in The Public Prosecutor v. Kupandra Chetty, (1948) 1 Mad LJ 468 : 1948 AIR(Mad) 478) in which a person who offered for sale the adulterated article from the shop of his brother in the absence of his brother and acting as his deputy was found liable. The third decision is one of the Supreme Court in Sarjoo Prasad v. State of Uttar Pradesh, 1961 AIR(SC) 631, 1961 (67) CRLJ 747, 1961 (1) SCJ 484, 1961 (3) SCR 324, in which it was held that the servant of the owner can be convicted without proof of mens rea. But these decisions will not help the prosecution since in none of those decisions the question whether any person, other than those mentioned under S.17, when the offence is by a company, is liable has been gone into directly and decided.


9. The scheme of the Act is to reach the person responsible for the sale of adulterated articles in the legal sense of the term. Those who by their mistake, negligence act or conduct prevent the inspection agency to reach the source of the evil may be caught in the net. In actual practice the Food Inspector will hold first the person found actually involved in sale. But he should immediately endeavour through him and through independent investigation to spot the seller in the eye of law and prosecute the latter one. Earnest effort and sound

common sense suffice for the purpose. If the respective role is not clear to him, it may be open to him to prosecute both, leaving the matter to the Court to decide. In such a case, his investigation should clearly establish the acts of each one, and the Court should afford opportunity to those who claim to have been selling on behalf of others to establish their case. There is a tendency among the inspection agency to rest content with striking at the ostensible vendor who executes mechanically the orders of the real vendor and to avoid penetrating up to the source of adulteration. Such an attitude would not be conducive to the fulfilment of the object of the Act. 10. In the result, this revision case is allowed and conviction and sentence are set aside without prejudice to the State to prosecute the Society and the person in charge thereof and responsible thereto, if they are so advised. Revision allowed.