An employee of a company cannot be held liable for the sale of adulterated food under S. 7 of the Prevention of Food Adulteration Act, 1954 unless the prosecution proves that the employee had the animus to sell.

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