DEVABRATA GANGULI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is the Manager of the Hanuman Mills, Sultanganj, in the district of Bhagalpur. He has been convicted under Section 27 read with Section 9 (2) (e), Bihar Prevention of Food Adulteration Act, 1947 (Bihar Act v [5] of 1948), and sentenced to a fine of Rs. 125, or in default, rigorous imprisonment for four months. Under Section 22 of the Act, he hag also been directed to pay a sum of Rs. 60 as costs.

(2.) The case against the petitioner was that he as a Manager of the said Mills, kept or stored for sale mustard oil which was not exclusively derived from mustard seeds and thereby contravened the provisions of Section 9 (2) (e), Bihar Prevention of Food Adulteration Act, 1947. The section which punishes such contravention, is Section 27 of the Act. It appears that the Sanitary Sub-Inspector of Bhagalpur took a sample of mustard oil from the petitioner. This sample was sent to the Chemical examiner of Government, who found that the oil was adulterated and not made exclusively from mustard seeds. It appears that at the request of the petitioner the same sample was sent again to the analyst of the Harcourt Butler Technological Institute, Kanpur, in the U. P. now called Uttar Pradesh. That analyst also submitted a report to the effect that the sample contained traces of linseed. In the circumstances, the petitioner was found guilty of contravening the provisions of Sub-section (2) Clause (e) of Section 9, Bihar Prevention of Food Adulteration Act, 1947.

(3.) The material portion of that section reads as follows : "No person shall, directly or indirectly, himself, or by any other person on his behalf, sell, expose for sale or manufacture or store for sale mustard oil, unless it is exclusively derived from mustard seeds." It is clear that the oil, of which a sample was taken and which the petitioner stored or exposed for sale, was not mustard oil exclusively derived from mustard seeds. Learned counsel for the petitioner has contended before me that in view of the report of the analyst of the Harcourt Butler Technological Institute, Kanpur, the proviso to Section 8 of the Act will come into operation. There are two difficulties in the way of accepting the contention of learned counsel for the petitioner. Firstly, it seems to me that the report of the analyst of the Technological Institute Kanpur, was not admissible in evidence. The analyst of the Technological Institute, Kanpur, was not a public analyst within the meaning of Section 3 (h) of the Act; nor was he, in my opinion, a chemical examiner within the meaning of Section 3 (b) of the Act. The learned Magistrate was I think, wrong in thinking that the analyst of the Technological Institute, Kanpur, was a Chemical Examiner within the meaning of Section 3 (h) or Section 16 (2), Bihar Prevention of Food Adulteration Act, 1947. Secondly, even if the report of that analyst is taken in evidence in the absence of the analyst being himself examined, that report also shows that the oil in question was not mustard oil exclusively derived from mustard seeds. Section 8 refers to articles of food in general. That section, in my opinion, has no application to the present case, which is specifically dealt with in Clause (e) of Sub-section (2) of Section 9 of the Act. Therefore, the question of applying the proviso to Sub-section (1) of Section 8 does not arise.