STATE OF MAHARASHTRA Vs. AMRATLAL BHOGILAL

JUDGEMENT

(1.) THIS is an appeal by the State of Bombay against the order passed by the Additional Stipendiary Magistrate, First Class, Ahmedabad, acquitting the opponent, who was prosecuted under Section 4 (1) (a) and Section 4 (1) (b) of the Bombay Prevention of Adulteration Act, 1925. The opponent, who was accused No. 2 in the trial Court, is the manager of a shop in Ahmeda-bad, at which ghee and other articles are sold. On March 7, 1952, the food inspector of the Ahmedabad Municipality, witness Dave, went to this shop. He purchased 3/4 lb. of ghee from the opponent and paid him Rs. 1-11-0 for it. He told the opponent that the ghee was to be sent for analysis. He then divided the ghee purchased by him in three parts, put each of them in a separate bottle and sealed, labelled and signed each bottle. One of the three bottles was given to the opponent, who was asked to pass a receipt. The opponent then gave the inspector a receipt stating that he had received Rs. 1-11-0 for 3/4 lb. of ghee sold to the inspector for getting it analysed and that he had also received a sample bottle. The other two samples were sent to the municipal laboratory for examination. The public analyst found that the ghee was adulterated to the extent of 14 per cent. In his opinion it was not genuine ghee. Its B. R. reading at 40" C was 44-3 and its R. W. value was 21. 1. The opponent, along with the owner of the shop, who was accused No. 1 in the trial Court, was then prosecuted for selling and keeping or exposing for sale adulterated ghee under Section 4 (1) (a) and Section 4 (1) (b) of the Bombay Prevention of Adulteration Act (hereinafter referred to as the Act ). Both the accused pleaded not guilty. The owner of the shop stated that the opponent, accused No. 2, looked after the entire business of the shop, that he never attended to it and that consequently he was not liable. The opponent (accused No. 2) in his statement also stated that he had been entrusted with the management of the shop and that accused No. 1 had no concern with it. The learned Magistrate, therefore, acquitted accused No. 1. The opponent further stated that all tins of ghee kept for sale at his shop had been tested in the laboratory of the Ahnieda-bad Ghee Merchants' Association, who had certified it as genuine ghee and that he had therefore taken sufficient care to see that the ghee which was sold at his shop was pure ghee. The opponent examined one Chimanlal, who claims to be the President of an association of ten ghee merchants in Ahmedabad. Chimanlal has deposed that he had employed one Bansilal for taking B. R. readings of the ghee sold by him, that he never sold ghee of which the B. R. reading was more than 44 at 40? C and that he had sold two tins of ghee to the opponent on March 5, 1952, i. e. two days before the opponent's shop was visited by the food inspector. The learned Magistrate accepted the opponent's defence that the ghee sold by him was pure, as according to the evidence of Chimanlal its B. R. reading was less than 44. He also appears to have been of the opinion that the sale of ghee to a food inspector would not be 'sale' within the meaning of Section 4 (1) of the Act. The learned Magistrate has also observed that from the "statements and demeanour" of the accused, it was clear that they were not guilty. It is not easy to understand how the learned Magistrate came to this conclusion, for the oral statement of accused No. 1 consists of only one sentence that he was filing a written statement, while that of the opponent consists of five sentences. The learned Magistrate accordingly acquitted the opponent. Against his order acquitting the opponent, the present appeal has been filed.

(2.) SECTION 4 (1) (a) of the Act provides that any person who sells or causes to be sold or offers for sale to the prejudice of the purchaser any article of food which is not of the nature, substance or quality demanded by or on behalf of the purchaser, shall, on conviction, be punished with the punishment prescribed in this section. Clause (b) of Sub-section (1) of this section makes it an offence to offer, keep or expose for sale any article of food which is not of the nature, substance or quality which it purports to be. Section 8 of the Act states that a local authority may appoint any person to be an inspector under the Act either specially for any article of food or generally for all articles of food. Section 9 empowers an inspector to procure and send for analysis any article or sample of food offered, kept or exposed for sale. Section 11 provides that if any inspector shall apply to 'purchase' any article or sample of food exposed or offered for sale, whether wholesale or retail, and shall tender the price for the quantity which he shall require for the purpose of analysis not being more than shall be reasonably requisite and the person exposing or offering such food for sale refuses to 'sell' such article or sample, the person so refusing shall, on conviction, be punished with the punishment specified in the section. It has been urged that as there is an obligation to sell an article of food exposed or kept for sale to an inspector, the sale of the article to him is not a yoluntary sale and that consequently it cannot be regarded as a sale within the meaning of Section4 (1) (a) of the Act. There is no substance in this argument. If the article supplied to the inspector is found to be adulterated, there can be no doubt that an offence under Clause (b) of Sub-section (1) of Section 4 has been committed, for the article which was kept or exposed for sale was not of the nature, substance or quality which it purported to be. There is also no reason why in such a case the article should not be held to have been sold to the inspector within the meaning of Section 4 (1) (a ). He has paid for the article purchased by him like any other customer. Moreover Section11 itself uses the words "purchase" and "sell" in regard to the inspector's obtaining an article for the purpose of analysis and paying the price for it. It is, therefore, clear that the Legislature wanted such a transaction to be regarded as a sale for the purposes of the Act.

(3.) IT has also been contended that when an inspector purchases an article for the purpose of analysis and not for his own use, there is no sale "to the prejudice of the purchaser", because the inspector is not personally affected, whether the article is pure or adulterated. We are unable to accept this contention. The words "to the prejudice of the purchaser" appear to have been inserted in the section in order to ensure that the supplying of an article, superior in quality to that demanded, would not ordinarily be regarded as an offence under the section. These words, In our opinion, mean, to the prejudice of an ordinary person who purchases or may purchase such an article. If an ordinary person is likely to be prejudiced by the purchase of such an article, the offence under Section 4 (1) (a) would be committed, even though the actual purchaser in the particular case may not have been prejudiced. The words "to the prejudice of the purchaser" are also used in the English Act, the Food and Drugs (Adulteration) Act, 1928. In Halsbury's Laws of England, Second Edition, in paragraph 244 in Vol. XV, it is stated: