A. S. SARELA, J. ( 1 ) APPELLANT No. 1 Ramanlal Chimanlal Shah is the owner of an Aerated Water Factory known as Shahco situated at Saraspur Ahmedabad. That factory manufactures aerated waters one of which is known as Orange King. Appellant No. 2 is an employee in that factory. On 12-2-1964 at about 9-15 A. M. witness Ambalal Bhailal Patel who is the Food Inspector appointed under the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) visited the said factory for the purpose of taking a sample of the drink Orange King. At the time of his visit appellant No. 2 according to the prosecution was present. ( 2 ) THE prosecution story is that the Food Inspector called two persons as Panchas and in their presence obtained from appellant No. 2 a sample of the drink Orange King. The sample so purchased from appellant No. 2 consisted of six bottles of the drink Orange King for being analysed in accordance with the provisions of the Act. He paid the price of those six bottles. The usual formalities of giving intimation receipt dividing the sample into three parts sealing the bottles etc. were gone through and a panchanama was duly made. One of the bottles so sealed was sent to the Public Analyst as required by sec. 11 (1) of the Act. The report of the Public Analyst (Ex. 7) showed that the drink contained 0. 016% of saccharin. Now on the declaratory labels appearing on the bottles there was no mention that the drink contained saccharin. According to the prosecution this was required to be mentioned and the non-mention amounted to an offence of misbranding. Now sec. 7 (ii) of the Act provides that no person shall himself or by any person on his behalf manufacture for sale or store sell or distribute any misbranded food. Breach of that provision is punishable under sec 16 (1) (i) of the Act. The two appellants were accordingly prosecuted for the offence and they have been convicted by the City Magistrate 8 Court Ahmedabad by his judgment and order dated 3rd April 1965. Each of them has been sentenced to pay a fine of Rs. 1 0 in default to suffer rigorous imprisonment for six months. Against that conviction and sentence the appellants-accused have come in appeal. . . . . . . . . . . Each of them has been sentenced to pay a fine of Rs. 1 0 in default to suffer rigorous imprisonment for six months. Against that conviction and sentence the appellants-accused have come in appeal. . . . . . . . . . . . . . . . . . . . . . ( 3 ) BEFORE discussing the evidence some of the relevant provisions of the Act may be referred to. Clause (v) of sec. 2 defines the expression food as meaning any article used as food or drink for human consumption other than drugs and water and then follows inclusive part in the definition with which we are not concerned. Clause (ix) of that section defines the expression misbranded. Out of the several sub-clauses of that clause we are here concerned with sub-clause (k ). Under it an article of food shall be deemed to be misbranded if it is not lebelled in accordance with the requirements of the Act or rules made thereunder. Rule 32 of the Rules made under the Act (hereinafter referred to as the Rules) specifies the contents of a label. It lays down that unless otherwise provided in the rules there shall be specified on every label the details set out in the various clauses of the rule. Rule 47 which is relevant reads as under:47 Addition of saccharin to be mentioned on the label: saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label which shall be in the form given below: this. . . . . . (name of food) contains an admixture of saccharin. Therefore under this rule whenever any food contained saccharin the container of such food shall have a declaratory label as stated in the rule so as to indicate that the food in the container contains saccharin. In the present case the contents of the six bottles which were taken by the Food Inspector for the purpose of a sample when analysed by the Public Analyst disclosed presence of saccharin. There is no dispute on that point. Mr. In the present case the contents of the six bottles which were taken by the Food Inspector for the purpose of a sample when analysed by the Public Analyst disclosed presence of saccharin. There is no dispute on that point. Mr. Thakore has no doubt contended that the manner in which the six bottles were mixed and divided into three parts was not consistent with the provisions of the Act and the Rules thereby possibly suggesting that the report of the Public Analyst may not be taken into consideration. But the question whether the Food Inspector had committed any error in this behalf or had acted contrary to the Act or Rules will be considered later. If the report of the Public Analyst has been properly obtained then there is no dispute about the fact that the food article in this case namely the drink Orange King contained saccharin. There is also no dispute about the fact that the containers which contained this drink did not bear declaratory labels as required by Rule 47. That being so having regard to the definitions earlier referred to the drink in this case which is an article of food must be deemed to be misbranded. Now sec. 7 of the Act prohibits manufacture for sale or storage or sale or distribution by any person himself or by any person on his behalf any misbranded food and the breach of that provision is punishable under sec. 16 (1) (a) (i) of the Act which provision so far as material provides that if any person whether by himself or by another person on his behalf manufactures for sale or stores sells or distributes any article of food which is misbranded he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with a fine which shall not be less than one thousand rupees. There is a proviso under which lesser than the minimum punishment can be inflicted by a Court for any adequate and special reasons to be mentioned in the judgment. The facts alleged in the complaint (Exh. 1) bring the case under the count of manufacture and also the count of selling the drink without requisite declaratory label on the container. The case sought to be made out in evidence is one of sale. The facts alleged in the complaint (Exh. 1) bring the case under the count of manufacture and also the count of selling the drink without requisite declaratory label on the container. The case sought to be made out in evidence is one of sale. Evidence has been led on that footing and that was the case the appellants were called upon to meet and therefore that case only needs to be examined. . . . . . . . . . . . . . . . . . . . . . [ His Lordship after discussing the evidence did not accept the submission of the appellant No 2 that the prosecution has not established his presence at the time of taking the sample and the argument that the formalities required by sub-sec. (7) of sec. 10 were not observed was not accepted. His Lordship further stated: ( 4 ) THE next argument of Mr. Thakore under his second submission is that the provisions of clause (b)of sub-sec. (1) of sec. 11 have not been complied with. Sec. 11 provides for the procedure to be followed by a Food Inspector when a sample of food is taken by him for analysis. Under clause (a) of that sub-section he has to give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample. This the Food Inspector did and the notice is Ex. 4. Under clause (c) the Food Inspector has to deliver one of the parts to the person from whom the sample has been taken has to send another part for analysis to the Public Analyst and has to retain the third part for production in Court in case any legal proceedings are taken. Mr. Thakore does not say that the provisions of clause (c) have not been complied with. His objection is confined to clause (b) which provides that the Food Inspector shall except in special cases provided by rules under this Act separate the samples then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits. Now Mr. His objection is confined to clause (b) which provides that the Food Inspector shall except in special cases provided by rules under this Act separate the samples then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits. Now Mr. Thakore does not contend that the Food Inspector did not separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permitted. His contention is that in this case there was not one sample but six samples because each bottle constituted a sample and therefore he should not have mixed all the six bottles and divided into three parts but he should have at most divided each bottle into three parts and as he followed a procedure different from what Mr. Thakore suggests his contention is that that procedure was not in compliance with the procedure laid down in clause (b) of sec. 11 (1 ). The argument is answered by reference to the definition of the expression sample and the rules relating to the quantity to be taken for the purpose of sample. The expression sample is defined in clause (iv) of sec. 2 of the Act as meaning a sample of any article of food taken under the provisions of the Act or of any rules made thereunder. Therefore a sample has to be taken under the provisions of the Act or of any rules made thereunder. The relevant rule is Rule 22 which lays down the quantity of sample to be sent to the Public Analyst. It states that the quantity of sample of food to be sent to the Public Analyst/director for analysis shall be as specified below and then in the column of articles of food at serial No. 15 is aerated water. Against that item the approximate quantity to be supplied is stated as 600 ml. Now under sec. 11 (1) (c) the Food Inspector has to deliver one of the parts to the person from whom the sample has been taken has to send another part for analysis to the Public Analyst and has to retain the third part for production in legal proceedings if taken or for analysis by the Director of the Central Food Laboratory under sub-sec. (2) of sec. (2) of sec. 13 as the case may be. Normally each part should have the same quantity and therefore if the quantity to be sent to the Public Analyst for analysis is 600 ml. the other two parts should also be each 600 ml. Any doubt on the point is removed when we refer to some of the other provisions of the Act. Under sec. 13 (2) of the Act in a prosecution under the Act it is open to the accused to apply to the Court for sending the part of the sample mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of sub-sec. (1) of sec. 11 to the Director of the Central Food Laboratory for a certificate. Under sub-sec (3) of that section the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. Now sub-clauses (i) and (iii) of clause (c) of sub-sec. (1) of sec. 11 refer to the bottle delivered to the accused and the bottle retained by the Food Inspector respectively Rule 22 requires that the quantity of sample of food to be sent to the Director for analysis shall be 600 ml. Therefore those two bottles also should each contain 600 ml. The result is that if the Food Inspector has to carry out the provisions of the Act and the Rules he must in respect of aerated water take a sample of at least 1800 ml. in quantity. Now the evidence here is that each bottle contained 300 ml. in quantity. Therefore the Food Inspector was required if he was to comply with the provisions of law to take six bottles of the same quantity so as to make up a total of 1800 ml. Therefore that part of the submission of Mr. Thakore must be rejected. That takes me to his last submission. ( 5 ) IT is clear from the evidence that appellant No. 2 sold the sample and that the article of food so sold being misbranded he committed an offence under sec. 16 (1) (a) (i) of the Act. Mr. Nanavati Assistant Government pleader has in this connection invited my attention to the decision of the Calcutta High Court in peary Mohan v. Harendra Nath (A. I. R. 1930 Calcutta 295 ). There Their Lordships were considering sec. 16 (1) (a) (i) of the Act. Mr. Nanavati Assistant Government pleader has in this connection invited my attention to the decision of the Calcutta High Court in peary Mohan v. Harendra Nath (A. I. R. 1930 Calcutta 295 ). There Their Lordships were considering sec. 6 of the Bengal Food Adulteration Act 1919 the material words of which were as follows:no person shall directly or indirectly himself or by any other person on his behalf sell expose for sale or manufacture or store for sale any of the following articles etc. In that case the accused had sold to the Health Officer a quantity of mustard oil which was not derived exclusively from mustard seed and had been convicted. The accused sold the said oil in his capacity as a servant of a certain firm and the contention on behalf of the accused was that the phrase himself or by any other person on his behalf points to a principal who may either sell at his own hand and on his own account or by some other person on his behalf. In short the contention was that it is not the person who physically sells but the person on whose behalf he sells who would be liable. Their Lordships posed the question whether or not there is sufficient in the words of the section to show that it is directed against the physical act of selling exposing for sale etc. They said that the agent or servant is within the prohibition of the words no person shall sell. They observed:the legislature is not necessarily contemplating a person who has a choice to sell at his own hand or by any other person on his behalf. It is concerned to make the act of selling an act which is imputable both to the person with whose hand it is committed and to any other person if such there be on whose behalf it is committed. Therefore the person at whose hand the act is committed was held to be as much liable as the person on whose behalf it is committed. The language of sec. 7 of the Act though not identical is similar to the language of sec. 6 of the Bengal Act above referred to. Mr. Therefore the person at whose hand the act is committed was held to be as much liable as the person on whose behalf it is committed. The language of sec. 7 of the Act though not identical is similar to the language of sec. 6 of the Bengal Act above referred to. Mr. Thakore does not dispute the proposition that the person who physically sells is liable and therefore so far as accused No. 2 is concerned once it is held as it must be held on the evidence that he sold the article as a sample for the purpose of analysis he must be held guilty on the facts of this case for an offence under sec. 16 (1) (a) (i) of the Act. ( 6 ) THE contention of Mr. Thakore is that even so appellant No. 1 cannot be held liable unless it was established that appellant No. 2 had either express or implied authority to sell. The contention is well-founded. The proposition appears to follow from the language of sec. 7 of the Act which says that no person shall himself or by any person on his behalf manufacture for sale or store sell or distribute any misbranded food. Therefore if in respect of the sale in this case appellant No. 1 is to be made liable it can be on the footing that the act of appellant No. 2 which created the liability was done by him on behalf of appellant No. 1. Appellant No. 2 cannot be said to have done it on behalf of appellant No. 1 unless he had either express or implied authority in that behalf. If a servant in charge of the business or in charge of the shop of his employer at the relevant time sells an article and if the facts establish that the selling of the article was included in one of his normal duties as an employee then the sale by him would be on behalf of his employer. The learned Assistant Govt. Pleader invited my attention to the decision of the Bombay High Court in Budhmal v. State (A. I. R. 1959 Bom. 497 ). The learned Assistant Govt. Pleader invited my attention to the decision of the Bombay High Court in Budhmal v. State (A. I. R. 1959 Bom. 497 ). In that case the Food Inspector had gone to the shop of the applicant and purchased a quantity of ghee from the applicants servant after informing the said servant who was on duty at the shop that he intended to send a sample of the ghee for analysis to the public analyst. The ghee was found to be adulterated and applicant-employer who was the owner of the shop was prosecuted. It was contended that the applicant not being present a the time of the actual sale of the ghee was not liable to be prosecuted. His Lordship referred to the language of sec. 7 of the Act and stated that upon a plain reading of the section it appeared that the master was liable even for the acts of his servant that is he was vicariously liable and that the presence of the master was not necessary. His Lordship pointed out that to require the presence of the master would be importing something in the section which was quite foreign to the object of the section and went on to say Apart from that I am of the opinion that under sec. 7 the master would be liable for the acts of his servant committed by him in the course of his ordinary duties and that when a servant sells any commodity or any article of food stocked for sale by the master of the shop the master will be deemed to have authorised the sale of such article by the servant and if it turns out that that article is adulterated within the meaning of sec. 2 (i) (a) of the Act the master will also be liable. Therefore what is required is whether the servant committed the act in the course of his ordinary duties as such servant or in other words whether the servant had an implied authority to sell. Then it would be possible to say the sale by him was on behalf of his master. The rest of the judgment is not material for the report. ] conviction confirmed: Sentence reduced. .