JUDGMENT M.N. Shukla, J. - This government appeal is directed against the order of the Sessions Judge, Meerut dated 9-1-1969 whereby the Respondents were acquitted of an offence u/s 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). 2. The facts giving rise to this appeal may be briefly stated. On 3-3-1967 Surendra Kumar, Food Inspector, Municipal Board, Meerut found Jagdish Respondent selling butter in Begum Bagh Meerut. It carried the label "New India Dairy, Beeru Well, Meerut". Jagdish was found selling butter as a Hawker on a bicycle. According to the prosecution the Respondents Prabhu Dayal and Devi Dayal were the proprietors of the New India Dairy which manufactured the butter which was being sold by Jagdish. It is also alleged that Jagdish was selling the butter as a servant of the owners of the dairy. Hence, the Food Inspector filed a complaint for the prosecution of all the three Respondents for an offence u/s 7/16 of the Act. 3. The Respondent Jagdish admitted that he was selling butter and the Food Inspector had collected a sample of the same from him on payment of price. He, however, maintained that the sample was not adulterated and that he was not the servant of the other two Respondents. Devi Dayal Respondent did not admit that he was the owner of the said dairy or that Jagdish was his employee. He stated that when he was passing that way Jagdish had requested him to stand surety for him and these circumstances he had written the endorsement Exhibit Ka 3 to which we would later advert. Prabhu Dayal Respondent also likewise denied that Jagdish was his employee. He stated that there was enmity between him and the Municipal Board which had prosecuted him earlier for charges under Prevention of Food Adulteration Act but he was acquitted. He, however, admitted that he was the owner of the New India Dairy. 4. The prosecution examined the Food Inspector Surendra Kumar as PW 1 for the fact that the sample of the butter was adulterated. The prosecution also relied on the report of the Director of the Central Food Laboratory dated 19-1-1968 which superseded the report of the Public Analyst dated 21-3-1967. It would be pertinent to refer at this stage to the two reports. The prosecution also relied on the report of the Director of the Central Food Laboratory dated 19-1-1968 which superseded the report of the Public Analyst dated 21-3-1967. It would be pertinent to refer at this stage to the two reports. According to the report of the Public Analyst the sample contained moisture (water content) to the extent of 23.53 whereas according to the report of the Director of the Central Food Laboratory the moisture content was 26.9%. The fat content according to the report of the Public Analyst was 75.45% whereas according to the Director it was 71.4%. According to the standard prescribed by the rules framed under the Act which existed at the relevant time, the moisture content should not exceed 16 and the fat content should not be less than 80. Thus, according to the reports above mentioned the sample of butter contained excess moisture and was deficient in fat content and therefore was adulterated within the meaning of that term as used in the Act. 5. The Respondents examined one Rajendra Prasad as DW I who deposed that Devi Dayal Respondent ran a dairy under the name of Multani Dairy at Delhi Gate and he had actually no concern with the New India Dairy. 6. The Respondents were convicted by the trial Magistrate but on appeal were acquitted by the learned Sessions Judge. The acquittal was based on an interpretation of Rule 43 of the Prevention of Food Adulteration Rules which according to the submission of the learned Counsel for the Appellant was erroneous. 7. It is true that if the construction put on Rule 43 by the appellate court finds favour with us, all the accused would be entitled to acquittal. Still, however, before coming to the interpretation of the said rule the liability of the Respondents Prabhu Dayal and Devi Dayal, the alleged owner of the New India Dairy, may be separately considered. According to the prosecution their liability arose from the fact that they were the owners of the dairy which manufactured butter, which was being sold by their servant, namely, Jagdish Respondent. According to the prosecution their liability arose from the fact that they were the owners of the dairy which manufactured butter, which was being sold by their servant, namely, Jagdish Respondent. The prosecution has, however, not been able to prove factually the connection of the Respondent Jagdish with the other Respondents nor establish as to how Prabhu Dayal and Devi Dayal Respondents were actually connected with the said dairy or that the butter of which the sample was taken was actually manufactured by the same dairy. The evidence led by the prosecution on these various points of fact is either unsatisfactory or there is no evidence at all. Therefore, we find it difficult to fasten the liability on the two alleged proprietors of the dairy. 8. The learned Counsel for the Appellant placed reliance on the language of Section 7 of the Act which says: 7. Prohibition of manufacture, sale etc. of certain articles of food. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute- (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health; or (v) any article of food in Contravention of any other provision of this Act or of any rule made thereunder. It was contended that since the aforesaid two Respondents had manufactured the butter in question, they had>incurred the liability created by Section 7 of the Act. We would like to italiclse the words "by any person on his behalf" occurring in the section. Admittedly this is not a case in which the alleged proprietors were themselves selling the butter. It was for the prosecution to establish by necessary evidence that Jagdish Respondent was either the servant of the other two Respondents or was selling butter on their behalf. Admittedly this is not a case in which the alleged proprietors were themselves selling the butter. It was for the prosecution to establish by necessary evidence that Jagdish Respondent was either the servant of the other two Respondents or was selling butter on their behalf. The allegation that he was their employee could be easily established by summoning the accounts book or other relevant documents in this regard but no such attempt was made by the prosecution and hence it is not possible to record a finding that Jagdish Respondent was an employee or servant of the other Respondent or that he was acting as their agent. The prosecution tried to take advantage of the recital contained in Exhibit Ka 3 which was an endorsement executed by Devi Dayal Respondent. He had stood surety for Jagdish Respondent and the said endorsement contained "a recital that Jagdish sold his butter. From the mere fact, however that Jagdish sold the butler of Devi Dayal it does not necessarily follow that the particular butter of which the sample was taken by the Food Inspector was also the one manufactured by Devi Dayal. Of course, Prabhu Dayal does not come in picture so far as this recital is concerned. It is curious that it was not put to any of the two Respondents Prabhu Dayal and Devi Dayal that the butter of which the sample was taken was the one manufactured by them. Even Exhibit Ka 3 was not put to the Respondent Prabhu Dayal. Moreover, this recital does not establish the relationship of agency between Jagdish Respondent on the one hand and Prabhu Dayal and Devi Dayal Respondents on the other. If a person has on some occasion purchased an article of food from a manufacturer or has otherwise casually made a purchase from him, it does not establish any relationship of agency with that person. When Section 7 of the Act casts vicarious liability on the manufacturer of an article of food, it does contemplate an actual relationship of master and servant or principal and agent between the two. This relationship must be of a more regular or viable character than is evidence by mere casual transactions between the two. When Section 7 of the Act casts vicarious liability on the manufacturer of an article of food, it does contemplate an actual relationship of master and servant or principal and agent between the two. This relationship must be of a more regular or viable character than is evidence by mere casual transactions between the two. In the absence of any such evidence in the instant case and in the face of a categorical denial by the accused about any such relationship, we are unable to hold that the Respondents Prabhu Dayal and Devi Dayal had manufactured the butter which was being sold by Jagdish Respondent and of which a sample was taken by the Food Inspector. We are also unable to infer from the said recital in Exhibit Ka 3 that Jagdish was an employee or servant of the other two Respondents. A person may have sold butter of a dairy without being its employee. The learned Counsel for the Appellant also emphasised the fact that the butter was being sold in a wrapper which bore the name of the New India Dairy. That circumstance is wholly inconclusive, for anyone can procure such wrappers and use them for selling butter. Consequently, in our opinion the Respondents Prabhu Dayal and Devi Dayal had not committed any offence under the Act and their acquittal by the appellate court was correct. 9. We now proceed to consider the construction put on Rule 43 framed under the Act and that relates to the crucial point argued before us. In short, the contention of the Respondents was that inasmuch as they had complied with Rule 43 by notifying on the label of the package of butter the quantity of addition, admixture or deficiency they could not be held guilty of the offence for which they were charged. Rule 43 runs as follows: * * * * (Their Lordships then quoted Rule 43 and proceeded on to observe:-) It would be also relevant to refer to Rule 44 which is in the following terms: * * * * (Their Lordships then quoted Rule 44 and proceeded on to observe :-) So far as butter is concerned there is a separate provision about it in Rule 46 which runs as under: * * * * (Their Lordships then quoted Rule 46 and proceeded on to observe :-) 10. It is submitted by the learned Counsel for the Respondents that the effect of compliance of Rule 43 is that a vendor is not guilty of any offence under the Act. It is, however, strenuously urged on behalf of the Appellant that no such exemption was contemplated by Rule 43, that a seller was not in any event absolved of the liability of selling an article which did not conform to the prescribed standard under the Act and that no rule could directly or indirectly provide what was not permitted by the Act itself. Reliance was placed on Section 7 of the Act the terms of which were imperative and imposed absolute liability on the vendor. According to Section 7 of the Act no person was permitted to sell any adulterated food. The definition of the word "adulterated" is found in Section 2 of the Act. Section 2, Sub-section (i), Clause (1) provides that an article of Food shall be deemed to be adulterated "if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability." The submission was that the object of Rule 43 could be never be to waive the liability unequivocally imposed by Section 7 of the Act, otherwise the very purpose of the Act would be defeated. Our attention was drawn to the preamble of the Act according to which the object of the Act was "to make provision for the prevention of adulteration of food." In other words, by merely complying with Rule 43 a person could not obtain a licence to sell adulterated food with impunity and thereby contravene the expressed provision of Section 7 of the Act. 11. The learned Counsel for the Appellant placed reliance on a decision of the Bombay High Court in Ganpat v. Lingappa AIR 1962 Bom 101. With great respect we are unable to agree with the views expressed therein by Shah, J. as he then was. We feel that there are certain aspects of the case which can be appreciated by reference to some provisions in the Act itself which were not canvassed in Ganpat's case (supra). With great respect we are unable to agree with the views expressed therein by Shah, J. as he then was. We feel that there are certain aspects of the case which can be appreciated by reference to some provisions in the Act itself which were not canvassed in Ganpat's case (supra). There is no gainsaying the fact that Section 7 of the Act does cast an absolute liability for sale of adulterated food, but the Central Government has at the same time reserved to itself the power of granting exemption from the Act or of any requirements contained therein with regard to any article of food. This power is clearly embodied in Section 23 of the Act which confers the rule making power on the Central Government. Some of the provisions of the said section relevant for our purpose may be noted below: * * * * (Their Lordships then quoted Section 23 and proceeded on to observe:-) Thus, it is manifest that it is open to the Central Government to mitigate the rigour of the Act by making appropriate rules. The exemption may be complete or partial. Broadly speaking, the term implies the softening of the strictness or rigidity of any provision or enactment. It can assume various forms. Therefore, Under Clause (k) of Section 23 of the Act the Central Government has the power to exempt the action of the seller from the consequences of what may be ostensibly 'adulteration'. We have already referred to Section 2 of the Act which contains the definition of the term 'adulterated'. It is true that each of the various sub-sections of Section 2 is independent and furnishes an example of adulteration but the effect of any one of these provisions may be either completely nullified or partly modified by exercising the wide power of exemption conferred by 23(k) of the Act. Rule 43 in our opinion furnishes such example of exemption from the Act and the requirements contained therein. If Clause (1) Sub-section (i) of Section 2 alone is taken into consideration any article which falls below the prescribed standard or its constituents are in excess of the prescribed limits of variability, it would be an adulterated article. On the other hand, Clause (a) Sub-section (i) of Section 2 which illustrates another example of adulteration is very significant and may be reproduced below: 2....... On the other hand, Clause (a) Sub-section (i) of Section 2 which illustrates another example of adulteration is very significant and may be reproduced below: 2....... (i)...an article of food shall be deemed to be adulterated. (a) If the article sold by a vendor is not of the nature, substance, or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be. The effect of the above Clause (a) is that a vendor who sells an article which is not of the quality, nature or substance demanded by the purchaser or which is not of the nature; substance or quality which it purports to be or which it represents to be, shall be deemed to be selling an adulterated article. If the above provisions are analysed, its corollaries are that where a purchaser demands a pure article the vendor is under a duty to supply a pure or unadulterated article to him. The same conclusion would also follow if none of the two parties i.e. the vendor or the purchaser makes any representation. In that case the presumption would be that the article purported to be unadulterated. Similarly, where a vendor expressly represents an article to be pure and it turns out otherwise, i.e. it is found not to be pure, he would be guilty of selling an adulterated article. But these twin dangers of failing to supply a pure article demanded by the purchaser or of an article of inferior quality in comparison to the pure or unadulterated article which either the article sold purports to be or it is so represented by the vendor, are safely avoided where a vendor complies with the procedure prescribed by Rule 43. In the first place, the article of food must be described as containing an addition, admixture or deficiency. Secondly, the package containing the article of food must be labelled with the declaration about the nature and percentage etc. of the admixture or addition. Thus, the defects or deficiencies contemplated by Clause (a) of Section 2(i) which constitute adulteration are negatived by the protection enjoined by Rule 43 and observed by the vendor. Therefore, so far as Section 2(i)(a) is concerned, there would be no adulteration in an article if Rule 43 has been complied with. of the admixture or addition. Thus, the defects or deficiencies contemplated by Clause (a) of Section 2(i) which constitute adulteration are negatived by the protection enjoined by Rule 43 and observed by the vendor. Therefore, so far as Section 2(i)(a) is concerned, there would be no adulteration in an article if Rule 43 has been complied with. As we have already observed, there is nothing in the Act which imposes a bar on the powers of the Central Government to exempt from the Act or any requirements contained therein any article or class of articles of food u/s 23 (1)(k). A perusal of Clauses (d), (1), (m) etc. of Section 23(1) of the Act makes it abundantly clear that the rules can be made regulating even the sale of an article known to be used as an adulterant of food or with regard to addition of water or other diluent or adulterant to any article of food. If that be the intention of the legislature, there is nothing wrong if mere excess of moisture is made permissible in case of butter u/s 23(1)(k) so as not to make it amount to adulteration which may be punishable under the Act. 12. Rule 43, therefore, fits in with the scheme envisaged by the Act itself and cannot be said to be in excess of its provisions. The Central Government was competent to exercise its power of exemption in so far as adulteration contemplated by Clause (1) of Section 2(i) was concerned. The result is that notwithstanding the fact that an article of food may be sub-standard in the sense that it does not conform to the prescribed standard under the Act, it may still not be adulterated so as to amount to an offence on the part of the person selling it. 13. The learned Counsel for the Appellant further submitted that Section 23(1)(k) contemplated a wholesale exemption on any article or class of article of food and not the kind of exemption which was urged by the learned Counsel for the Respondents. We are unable to accede to this contention. As we have already observed, the exemption may be total or partial. It may be in substance merely a waiving of the rigour or rigidity of any provisions of the Act. We are unable to accede to this contention. As we have already observed, the exemption may be total or partial. It may be in substance merely a waiving of the rigour or rigidity of any provisions of the Act. The aspect relating to the wide power of exemption was not examined in the case of Ganpat (supra) nor was Clause (a) of Sub-section (i) of Section 2 of the Act considered. 14. The last contention put forward on behalf of the Appellants that the applicability of Rule 43 is confined to an article to which something has been added or with which something has been mixed and not to articles which are pure in themselves and that the latter class of article must initially conform to the standard prescribed by the Act or the Rules. Reliance was placed on the observation in the case of Ganpat (supra) by Shah, J. at page 106 which is as follows: The rule can never mean that the vendor of the article can make a declaration on the label of the package containing article specifying the amount of addition, admixture etc. regardless of the standard Laid down by the Act or the Rules in respect of that article and contend that having complied with the provisions of that rule he cannot be held bound by the provisions of Section 7 of the Act and that he can sell even an "Adulterated" article to any one he liked. If this contention were to be accepted, the result to my mind would be preposterous because in every case where such a declaration is made by a vendor of an adulterated article he can always claim to be sell such article with impunity and the consequence that would necessarily follow therefrom would be that the public health would considerably suffer from consumption of such article and the object of the Act would be entirely frustrated. 15. In our opinion the applicability of Rule 43 cannot be confined to cases of articles to which something has been added or mixed. Sub-rule (1) and Sub-rule (2) of the said rule expressly use the word 'deficiency' also and hence it is clear that Rule 43 would be attracted even to cases of mere deficiency arising out of the prescribed limits of variability of the constituents of articles as provided by Section 2(i)(1). Sub-rule (1) and Sub-rule (2) of the said rule expressly use the word 'deficiency' also and hence it is clear that Rule 43 would be attracted even to cases of mere deficiency arising out of the prescribed limits of variability of the constituents of articles as provided by Section 2(i)(1). Secondly, the instant case is not one of admixture or addition but of deficiency alone. The label affixed to the sample of butter taken in the present case contained a declaration to the following effect: This unpressed butter contains not more than Thirty percent of moisture and Kasin, not less than Seventy percent Ghee. Thus the content of moisture was only in excess of the prescribed standard and the fat was less than the prescribed standard. It is not a case of the admixture or addition of any extraneous substance. Hence, if Rule 43 covers a case of deficiency also i.e. of departure from the prescribed standard, in that case, the Respondents would be entitled to the benefit of the said rule. Thirdly, the argument advanced on behalf of the Appellant loses sight of the fact that deficiency or a mere deviation from the prescribed standard may not necessarily be prejudicial to public health. The legislature may in its wisdom exempt from or soften the stringent provision of the Act by providing that the article would not be treated as adulterated and hence not attended with the penalty prescribed by Section 7. That is why the Rules suggest in distinction between the articles which must be sold in pure condition and those to which this condition may not apply. Sub-rule (4) of Rule 43 on which the learned Counsel for the Appellant placed reliance itself envisages such distinction. It says: (4) Nothing contained in this rule shall be deemed to authorise any person to sell any article of food required under the Act or these rules to be sold in pure condition, otherwise than in its pure condition. Further, Sub-rule (5) of Rule 43 and Rule 44 already quoted specify the articles which must be sold in pure condition. It is significant that about milk which is item (b) in Rule 44 there is a specific provision that it may not contain any added water. There is no such provision with regard to butter. Further, Sub-rule (5) of Rule 43 and Rule 44 already quoted specify the articles which must be sold in pure condition. It is significant that about milk which is item (b) in Rule 44 there is a specific provision that it may not contain any added water. There is no such provision with regard to butter. Butter does not find place in the Jist of articles specified in Rule 4 or Sub-rule (5) of Rule 43. Rule 46 does impose some restriction even with regard to ghee or butter but that relates to admixture or addition and not to mere deficiency. It the intention of the legislature was to prohibit even deficiency from the prescribed standard and treat such article as adulterated ghee or butter there could be no difficulty in making a specific provision about it in Rule 46 itself. Thus, in our opinion Rule 43 enjoins a procedure which if complied with would exonerate the person from the peril of such article being treated as adulterated. 16. The matter may be summed up by saying that Rule 43 is a two dimensional provision. On the one hand, its compliance dissipates the possibility of the type of adulteration which may arise u/s 2(i)(a); on the other hand, it eludes the pitfall of another type of adulteration which is contemplated by Clause (1) of Section 2(i) by pressing into service the power of exemption vested in the Central Government by Section 23(k). 17. So the Respondents were entitled to seek protection of Rule 43 and were not liable to be convicted u/s 7/16 of the Prevention of Food Adulteration Act. We, therefore, do not find any force in this appeal and it is accordingly dismissed.