MITHAN LAL Vs. EMPEROR

JUDGEMENT

(1.) This is an application for revision by one Mithan Lal, who was convicted of an offence under Sec. 4, U.P. Prevention of Adulteration Act, No. 6 of 1912, and sentenced to a fine of Rs. 30 by a Magistrate, 1st Class, Moradabad. The applicant deals in wheat flour. A sanitary inspector in the employment of the local Municipal Board took a sample of the flour which was then in his shop and sent it to the public analyst, who detected a mixture of barley flour. The analyst did not, however, mention the proportion in which barley flour was found mixed with the wheat flour. His report is consistent with the hypothesis that the percentage of barley flour was negligible or infinitesimal. It is equally consistent with the hypothesis that the extent of barley flour was quite appreciable. In this state of uncertainty the case must be decided on a hypothesis most favourable to the accused. The question is whether the applicant can be held to be guilty of an offence described in Sec. 4, U.P. Prevention of Adulteration Act. That Sec. is divisible into two main parts and may be stated as follows:

(2.) The proviso to the Sec. mentions several exceptions, one of which will have to be taken into consideration for the purposes of this case. It lays down that:

(3.) It seems to me that in a case falling under category (A) mentioned above, the seller is taken to have given an absolute warranty of quality. If the purchaser demands pure wheat flour and the seller professes to sell pure wheat flour, which turns out on analysis to have even a negligible mixture of barley flour, warranty of quality expressly given is clearly broken and the seller is guilty of an offence under Sec. 4. If the purchaser demands pure wheat flour but the seller warns him that a negligible percentage of barley flour is mixed with or may be found to be mixed with it, as is generally the case, it would seem that the seller cannot be held to be guilty under the first part if a mixture of barley flour is detected to an extent which is negligible and which doss not prejudice the purchaser. The whole object of this part of the Sec. seems to be to prevent deception or misrepresentation. If the accused frankly informed the purchaser that the wheat flour, which he offered for sale must contain a negligible quantity of barley flour as is the case with wheat flour generally accepted as pure wheat flour, he cannot be considered to have been guilty of any deception or misrepresentation if, on analysis barley flour is merely detected in the wheat flour. The purchaser, in such a case, should be deemed to have demanded, after hearing the statement of the seller, such wheat flour as is generally accepted as pure wheat flour but in fact contains a negligible proportion of barley flour. In Budh Sen Vs. Emperor A.I.R. 1934 All. 329 the purchaser demanded "pure wheat flour" and the seller supplied flour representing it to be such and without mentioning the fact that a negligible proportion of barley flour might be found mixed with the wheat flour. It was held that the offence was technically made out. It was clearly a case falling within the category (A) mentioned above. The public analyst had not mentioned in his report that barley flour was discovered in any particular proportion. It was also a case in which barley flour had merely been detected in the wheat flour. Conviction was upheld because of the unqualified warranty of quality given by the accused. The other cases contemplated by class (B) mentioned above stand on a slightly different footing. In such cases the seller is assumed to have given an implied warranty to the effect that the article of food which is offered or exhibited for sale is, in fact what it purports to be. If a particular article of food is commonly assumed to contain a foreign mixture not injurious to health and the article offered or exhibited for sale by the accused is found to contain such mixture and no more, the implied warranty held out by him is not] broken and he cannot be held to be guilty of an offence falling under class (B) mentioned above. In the present case the applicant offered to sell wheat flour, which is generally understood to mean wheat flour with a negligible admixture of barley flour. It is in evidence that wheat flour, however pure, must contain mixture of barley flour to an extent which can only be traced by an analyst and cannot be detected by an ordinary consumer, however fastidious he may be. It is a matter of common knowledge that wheat crop, when gathered, generally contains a certain percentage of barley which it is not worth while to remove in view of the trouble involved in the process and in view of the negligible proportion in which it exists. Mixture of barley flour arising: from such a cause cannot make the flour any the less pure wheat flour, as is popularly understood. Where, however, barley flour is mixed with wheat flour so as to increase the bulk of the latter, different considerations would obviously arise. Barley is cheaper than what, and if a seller takes advantage of the; great resemblance between the barley flour and the wheat flour and sells as pure wheat flour an article which has an appreciable proportion of barley flour, he cannot be considered to be selling what purpose to be wheat flour and generally accepted as such. In such a case an offence falling under the second category mentioned above is clearly made out.