RAMESHWAR CHAUDHURY MARWARI Vs. PURULIA MUNICIPALITY

JUDGEMENT

(1.) Kishun Gopal Marwari is the proprietor of an oil mill who also keeps a shop in Purulia; and Rameshwar Choudhury Marwari assists the first petitioner in his shop. Outside the shop is a notice baying that oil is for sale mixed with linseed and sesame which is not fit for food or for massaging the human body. On the 9 of June 1932, the Sanitary Inspector of the Municipality, accompanied by a Municipal Commissioner, went to the shop where they asked for mustard oil for human food. The petitioner produced three kinds of oil, saying that two kinds were for human food, while the third kind was for burning. The purchaser proceeded to take samples of the two kinds of mustard oil which were stated to be fit for human food, whereupon the proprietor told them that none of the oil was for human use, and pointed to the sign-hoard outside his shop. The oil which had been purchased was found to be adulterated with linseed oil and oil of sesame; and the two petitioners were prosecuted for an offence tinder the Prevention of Adulteration Act of 1919. They were each or them convicted of offences punishable under Sub- sections (1) and (2) of Section 33 of the Act.

(2.) Mr. S.M. Gupta on behalf of the petitioners argues in the first place that the sign-board which was outside the shop made it clear to any purchaser that what was being sold was mixed oil which was not suitable for human food. He points out that it has not been proved that the oil sold would be actually injurious when used as food; and although the learned Magistrate appears to be of the opinion that the use of this oil as food would be injurious, it must at least be conceded that there is ground for doubt on that point. Mr. Gupta quotes the decision in Kirk V/s. Coates (1885) 16 Q.B.D. 49 : 55 L.J.M.C. 182 : 54 L.T. 178 : 34 W.R. 295 : 50 J.P. 148 wherein an Inspector purchased a pint of milk which the salesman had told him was new milk, although at the moment of purchase the salesman had told him that it was old milk. In that case it was held that no offence had been committed under the Food and Drugs Act of 1875. He also cites the decision in Sandys v. Small (1878) 3 Q.B.D. 449 : 47 L.J.M. C. 115 : 39 L.T. 118 : 26 W.R. 814 where a vendor who had sold whisky which was much below proof had posted notices to effect that all spirits sold in this establishment were mixed. Both of these cases turned on the provisions of the sixth Section of the Food and Drugs Act by which in order to demonstrate that an offence had been committed it was necessary to show that the sale had been made to the prejudice of the purchaser. Mr. Gupta cites also the decision in Sheo Proshad Halani V/s. Emperor 123 Ind. Cas. 744 : 33 C.W.N. 1032 : Ind. Rul. (1930) Cal. 376 : 31 Cr. L.J. 568 wherein the conviction of a person who had sold adulterated mustard oil was set aside on the ground that it had not been proved that the oil had been sold for consumption as an article of food. Sir Sultan Ahmed quotes the decision which has been relied upon by the learned Magistrate in Rakhal Chandra Ghosh V/s. Purna Chandra Ghosh 127 Ind. Cas. 57 : 51 C.L.J. 227 : 34 C.W.N. 281 : A.I.R. 1930 Cal. 273 : 31 Cr. L.J. 1151 : Ind. Rul. (1930) Cal. 809 : 57 C 1123 : (1930) Cr. Cas. 353 wherein it was held that the sale of an article of food for human consumption which was actually adulterated was an offence under the Bengal Food Adulteration Act even if it was advertised to be of a mixed character.

(3.) I do not consider that any ground has been made out for interference with the order of the learned Magistrate in this case. The case is not affected by the placing of a placard outside the shop to indicate that mixed oil was obtainable therein which was not fit for Human consumption; nor has the case anything in common with those case in which it may have been made clear to the purchaser when an article was offered for sale that the article which he was purchasing was adulterated. In the present case the petitioners purported to sell mustard oil for use as human food; and if the mustard oil which they sold was actually found on analysis to be not genuine in the sense that it was not the article which it purported to be or represented to be, or if it fell below the standard prescribed by rule, under Sub-section, (2) of Section 3 of the Act, the vendors became liable to penalty. Mr. Gupta suggests that in the present case it ought to have been proved on behalf of the prosecution that the mixed oil would be injurious to public health, but that is not necessary under the Bihar and Orissa Act. It is sufficient to show that the article is not what it purports to be or that it is not of the standard required by rule. It may possibly have been open to the defence (if they had chosen to adopt that line of defence) to show that the article sold, was actually something better than what it purported to be; but no attempt was made to prove this, and I cannot interfere with the finding or order of the learned Magistrate. The application is dismissed.