JUDGMENT
T. Kochu Thomman, J.
1. The first defendant in a suit for recovery of damages is the appellant. The suit was decreed by the trial court against the second defendant. But on appeal by the plaintiffs, the suit was decreed against both the defendants, and the compensation awarded by the trial court in the sum of Rs. 2,000/- was enhanced to Rs. 6,000/-together with interest.
2. The case of the plaintiffs is that the first plaintiff, a Partnership firm, was a licensee under the Drugs and cosmetics Act, 1940 (the “Drugs Act”) and the other two plaintiffs were partners of the firm. The first plaintiff purchased from the first defendant on 29-5-1971 a certain quantity of “Sweetin” bearing a guarantee that the articles did not “contravene in any way the provisions of Section 18 of the Drugs and Cosmetics Act, 1940”. Unknown to the plaintiffs, a notification had been issued on 25-5-1971, and published in the gazette on 26-5-1971, under Appendix B of the Prevention of Food Adulteration Rules, 1955, made under the Prevention of Food Adulteration Act, 1954 (the “Food Adulteration Act”), whereby sacchrine sodium was included in Appendix B prescribing certain standards of quality. To sell, distribute, or store an article of food which does not comply with the standards prescribed is an offence punishable under Section 7 read with Section 16 of the Food Adulteration Act. The plaintiffs sold the articles purchased from the first defendant to various customers. On 17-8-1971 the Food Inspector of the Kunnamkulam Municipality purchased a sample, containing the said article and sent the same for analysis. The Public Analyst reported that the article contravened the aforesaid provisions of the Food Adulteration Act, as it did not conform to the prescribed standards of quality. The plaintiffs were prosecuted. The trial court imposed imprisonment on plaintiffs 2 and 3 till the rising of the Court and imposed a fine of Rs. 1,0007- on each of the plaintiffs. The conviction was set aside by the Sessions Court, but on appeal by the Food Inspector, this court confirmed it as against the first and second plaintiffs, but they were released under Section 4 of the Probation of Offenders Act after executing a bond for Rs. 1,000/- each with two sureties each for the like sum for a period of one year.
3. Subsequently the present suit was brought claiming damages in the sum of Rs. 10,000/-. This sum includes the expenses incurred by the plaintiffs in defending themselves in the criminal case and for the menial agony suffered by plaintiffs 2 and 3. As stated earlier, the suit was decreed by the trial court as against the second defendant and the lower appellate court decreed the suit as against the first defendant also.
4. The question which arises in this appeal is whether the courts below are justified in awarding compensation in favour of the plaintiffs as against the defendants. Counsel for the appellant Shri Jose in his able arguments raises an interesting question of law. He submits that the plaintiffs were tortfeasors as much as the defendants were. The plaintiffs contravened the provisions of the Food Adulteration Act and the Rules as much as the defendants did Like the first defendant, the plaintiffs sold goods classified as food and manufactured in contravention of the statutory provisions regarding the prescribed standards of quality. That the goods sold did not conform to the standards of quality, as prescribed under the Food Adulteration Rules, was a charge equally applicable to the plaintiffs and the defendants. Neither the defendants nor the plaintiffs had any actual knowledge of this infirmity, but only presumed knowledge, a knowledge which arises from the presumption that he who deals in goods must know the law applicable to them. Counsel therefore submits that between the plaintiffs and the defendants, who are joint tortfeasors, there can be no contribution. The plaintiffs are not entitled to be indemnified by the defendants. Counsel further submits that, in any view, the right of contribution between tortfeasors can arise only when one tortfeasor has had to pay compensation to an innocent party who sued him in damages on account of the tort committed by him. He refers to the rule in Merryweather v. Nixan, (1799) 8 TR 186 as modified by subsequant decisions and also to the principles stated by Madhavan Nair, J. of the Madras High Court in Yagnanarayana v. Yagannadha Rao AIR 1932 Mad 1(2). I see great force in this argument.
5. Counsel for the respondents Shri P.V. Ayyappan submits that the articles sold by the defendants to the plaintiffs contained a guarantee that they did not contravene the provisions of the Drugs Act, but there was no guarantee as against contravention of the Food Adulteration Act and the Rules. What was sold was food by reason of the notification dated 25-5-1971 which was three days prior to the date of purchase. The defendants ought to have known that what was sold to the plaintiffs was food which had not conformed to the statutorily prescribed standards of quality.
6. It is not clear from the pleadings or the findings whether the article in question was also a drug. It was sold in a drug store and it had been manufactured by person who manufactured drugs. It was purchased by a licensee under the Drugs Act. But what is clear is that the article was notified as food specified in Appendix B of the Food Adulteration Rules, and on analysis it was found that it did not ponform to the standards of quality.
7. The plaintiffs who are licensees under the Drugs Act dealt with articles which came under the ambit of the Food Adulteration Rules. Although as a matter of fact they might not have known that the notification had been issued on 26-5-1971, they ought to have known, as licensees under the Drugs Act, that what they sold in their shop were goods which had been notified under the Food Adulteration Rules. No licensee under the Drugs Act can legitimately claim ignorance of the identity of the goods sold. Whether or not “Sweetin” was both a drug and a food, they ought to have known, or presumed to have, known, that what they sold was prohibited under the Food Adulteration Act and such sale was an o ffence under that Act. They were punished for that offence. They cannot therefore claim innocence of the offence. Their conviction was on the basis that they committed the offence knowingly. It is therefore no longer open to them to contend that they were not tainted by the knowledge of the offence. What they did was not only a criminal offence, but a civil wrong. They were therefore, as contended by Mr. Jose, as much tortfeasors as the defendants were.
8. The question then is, are the plaintiffs entitled to claim contribution. Mr. Ayyappah points out that theold common law principle enunciated in Merry weather v. Nixan, (1799) 8 TR 186 is no longer good law in England and cannot be treated as good law in India. It is true that the strict rule in Merryweather v. Nixan is no longer applicable in England after the Parliament enacted the Law Reform (Married Women and Tortfeasors) Act, 1935, and finally, the Civil Liability (Contribution) Act, 1978. But even in terms of the 1978 Act, one tortfeasor cannot claim indemnity from the other tortfeasor, if the former knew, or is presumed to have known, that he was committing an unlawful act: see Winfield and Jolowicz on Tort, 12th Edn., page 609. This has always been the law in England before or after the, statutes. It is true that the rule in Merryweather v. Nixan had been followed, subject to certain modifications, by the Madras High Court in Yegnanarayana v. Yagannadha Rao, AIR 1932 Mad 1(2) prior to the statutory change which occurred in England. Nevertheless, the principle stated by that Court is still the law in India. There is neither equity nor reason nor justice that the doer of the act who knew, or is presumed to have known that the act he committed was unlawful as constituting either a civil wrong or a criminal offence should be entitled to claim contribution or indemnity from the other tortfeasors. No principle of law, justice or equity has been brought to my notice to warrant the conclusion that this principle is no longer good law. This is an aspect which is vital and fundamental and which was lost sight of by the courts below.
9. Accordingly I set aside the judgment and decree of the lower appellate court in so far as the first defendant is concerned. The appeal is allowed in the above terms. The first defendant is entitled to costs here and in the court below.