STATE OF MAHARASHTRA Vs. ISHWARLAL CHHAGANLAL

JUDGEMENT

(1.) THE question referred to this Full Bench is whether Rule 6 (B) (i) framed by the Government under the Bombay Prevention Of Adulteration Act, 1925, is ultra vires.

(2.) THE accused in the case which gives rise to this Pull Bench was charged under Section 4 (l) (a) and (b) of the Bombay Prevention of Adulteration Act and he was convicted by the Special Judicial Magistrate, Surat. On appeal he was acquitted by the learned Sessions Judge and Government came here In appeal against the decision of the learned Sessions Judge, and the Bench dealing with this appeal found it necessary that in view of a certain judgment of this Court the question as to the vires of this rule should be considered by a Pull Bench.

(3.) THE commodity in respect of which the accused was charged is ghee and when we turn to 8. 4 the offence is constituted by selling or causing to be sold or offering 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. There is an explanation to this section which provides that ghee or butter which contains any substance not exclusively derived from milk shall be deemed to be an article of food not of the nature, substance or quality it purports to be, and the case of the prosecution was that the ghee which the accused was selling or offering for sale contained a substance not exclusively derived from milk. Section 19 is the section which gives power to the Government to frame rules and the rule in question has been framed under Sub-section (1) (c) which authorises the Government to make rules for determining what deficiency in any of the normal constituents of any article of food or what addition of extraneous matter shall raise a presumption, until the contrary is proved, that such food is injurious to health within the meaning of Section 3 or is not of the nature, substance or quality it purports to be within the meaning of Section 4. Therefore, the power conferred upon the Government is to raise a statutory presumption. This section alters the rule of evidence which in a criminal trial casts the burden upon the prosecution and the rule would permit a presumption to be raised against the accused which would not be an irrebuttable presumption but which could be rebuttable by him and the presumption would be raised by determining the deficiency in the normal constituents of any article or the addition of extraneous matter in any particular article.