NOWRANGA LAL MARWARI Vs. CHAIRMAN, MIDNAPORE MUNICIPALITY

JUDGEMENT

(1.) This is a rule calling upon the District Magistrate of Midnapore and the Chairman of the Midnapore Municipality to show cause why the conviction of the petitioner should not be set aside. He has been convicted of an offence punishable under Section 6(1) read with Section 21, Bengal Food Adulteration Act. P.W. 1 is the Sanitary Inspector of the Midnapore Municipality. He took three samples of ghee from a tin in the petitioner's shop. One sample was sent to the local public analyst, one sample made over to the petitioner and another sample taken from another tin, which was said to be a part of the same consignment, was also sent for analysis. The result was that the Magistrate had three reports before him. The petitioner examined an expert witness who expressed the opinion after reading the reports that the sample taken by the Sanitary Inspector was adulterated and that of the others one was certainly pure and the other probably so. The Magistrate did not consider whether the ghee was pure or adulterated. He held that the reports showed that all the samples failed to comply with certain conditions prescribed by the Local Government under Section 6(1)(iii). These conditions were pub-lished by a notification in the Gazette on 24 July 1930. On the same day similar notifications were published under Section 4 and Section 20. The contention of the petitioner was that in view of the notification under Section 4 he was entitled to rebut the presumption raised therein, and to show that the ghee was not adulterated. He asked the Magistrate to accept the evidence of his expert witness on the point. The Magistrate, however, held that Section 4 had no application.

(2.) The effect of the presumption under Section 4 was the point for our consideration in Superintendent and Remembrancer of Legal Affairs Bengal V/s. Kshitish Chandra Benerjee . This was an appeal against an acquittal. The article of food in question was mustard oil. The point of law argued was whether the Judge was right in the view which he took with regard to the rebuttal of the presumption. It was assumed by both sides that Section 4 applied to the case and the arguments were made on that supposition. Inasmuch as I thought that this assumption required further consideration I directed that the present rule should be beard by a Division Bench. The question is not free from difficulty and depends upon a consideration of that Section in conjunction with Section 6. It will appear that Section 6 also refers to the constituents of five specific articles of food - milk, butter, ghee, wheat, flour and mustard oil. It has therefore to be considered whether the Local Government has the power under Section 4 to declare the normal constituents of these articles of food and the effect of a repugnancy, if any. Now, there is nothing in the terms of Section 4 itself to suggest that these articles are excluded. The Section provides that the Local Government may declare the normal constituents of any article of food. It further appears that the two Secs.are really dealing with different matters. The former is concerned merely with the constituents of different articles of food and the latter with the conditions under which they may be sold. Certain constituents are only mentioned in Section 6 in order to ensure a certain standard of purity in any article put on the market. I have, therefore, reached the (conclusion, though not without some hesitation, that the assumption made in the former case was correct. It is further clear that the presumption under Section 4 only applies to those articles of which the normal constituents have actually been declared. This is apparent from the use of the words what deficiency in these constituents and also from Section 20(1)(a) which includes these words: Determining what deficiencies in or additions to any article of food the normal constituents of which have been declared under Section 4.

(3.) One presumption arising is that the article is not genuine, that is to say that it had constituents other than those covered by the declaration. In the case of ghee, with which we are now concerned, the relevant part of the declaration is in these terms: "Ghee is the pure clarified milk fat of cow or buffalo or cow and buffalo." The remaining part of the notification has nothing to do with the constituents of ghee and is misconceived and ultra vires. The presumption would accordingly be that the ghee in the sample contained some substance other than the milk fat of cows or buffaloes. Inasmuch as in this particular case the notification is more severe than the conditions laid down in Section 6 the presumption would be of very little help to the prosecution. Under Section 6 ghee may contain curds and the prosecution would have to show that the additional constituents presumed to be present were something other than curds.