Term servant if includes agent and servant.

These are revisions by the two accused who were tried and convicted by the Sub-divisional First Class Magistrate, Sankari, under sections 16 (1) and 7 read with section 2 (1) (b ) and (j) of the Prevention of Food Adulteration Act, and rule 29 framed under the said Act. The convictions and sentences were upheld by the Sessions Judge of Salem.

The facts relating to the case are these: There was a society called the Government Servants’ Co-operative Society, Mettur township. The first accused was the manager of the society while the second accused was the sales clerk in the grocery section. P.W. 1 is the Food Inspector of Mettur township. On 18th June, 1957, P.W. 1 purchased 1½ pounds of Bengal gram powder from the second accused, the sales clerk. The first accused was not present at that time. The usual formalities which the Food Inspector observes when he purchases for the purpose of testing was observed and there is no dispute about it. The Bengal gram powder was sent to the public analyst. The public analyst in his report, Exhibit P-2 has stated that the sample sent was found to contain an artificial water soluble yellow colouring matter derived from, coal tar and he gave it as his opinion that the sample is adulterated. This opinion of the public analyst is not disputed and the presence, therefore, of artificial water soluble yellow colouring matter derived from coal tar is beyond question. This does not fall under any of the exemptions of coal tar dyeing as provided under the rules. A faint attempt was made in the lower Court to urge that it was soap powder so as to bring it within the exemption but that was rightly rejected by the Courts below and was not argued before me.

This society was formed under the Co-operative Societies Act. There was a Board of Directors of which the Divisional Engineer is the Chairman. The Board consists of nine members and the stores are managed by this Board of Directors. There is a purchasing committee appointed by this Board and i is they who recommend or purchase on behalf of the society and the article is sold in the society. It was considered to be the best in quality. Either while purchasing or afterwards no warranty was taken by the Society from its vendors for the purity of the powder sold.

That the powder sold is adulterated within the meaning of that expression under the rules is not disputed. That the society is a company within the meaning of section 17 of the Prevention of Food Adulteration Act is not also disputed. Section 17 of the Act is as follows:

“ Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, etc., etc.”

In the Explanation, ‘Company’ is defined as

“ Any body corporate, and includes a firm or other association of individuals.”

As already stated, the first accused who was the manager of the society was on leave at the time of the same. There is an Honorary Secretary also for the Society. Though the first accused is called the manager of the company there is no proof that he is the manager within the meaning of that expression in section 2 (9) of the Indian Companies Act, nor is there any evidence that he was in charge, or was responsible for the company or for the conduct of its business.

The offence with which the accused are charged is one under section 7 of the Prevention of Food Adulteration Act which is punishable under section 16 (1) (a) of the said Act.

Under section 7 of the Act:

“ No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(i) any adulterated food.”

Section 16 (i) says:

“ If any person-

(a) whether by himself or by any person on his behalf............sells or distributes, any article of food in contravention of any of the provisions of this Act or of any r