IN RE: RAMJAS MARWARI Vs. PURULIA MUNICIPALITY

JUDGEMENT

(1.) Ramjas Marwari is the proprietor of an oil mill within the limits of the Purulia Municipality in which mustard oil is manufactured as an article of sale for human consumption. In the beginning of February 1935 two carters who came from Balarampure were at the mill when some servant of the mill gave them twenty tins of mustard oil to deliver to a man of Balarampore to whom they had been sold. The carts broke down near the house of the Vice-Chairman of the Municipality, whereupon the Municipal servant who performs these functions was directed by the Chairman to seize the tins, acting under Section 285, Bihar and Orissa Municipal Act. The tins were sent to the Sub-Divisional Officer with the request that samples might be sent to the Public Analyst, which was done, with the result that the mustard oil was found to be below the standard fixed by the Local Government under the Food and Drugs Adulteration Act. The Commissioners then directed that a complaint should be made; and in due course, a formal complaint was made against Ramjas Marwari of an offence punishable under Section 3(2), Bihar and Orissa Food Adulteration Act. The Magistrate took cognisance on the complaint, and in due course, he convicted Ramjas Marwari and fined him fifty rupees. The Sessions Judge of Manbhum has referred the proceedings to this Court under Section 438, Criminal P.C., because he considers that the original seizure was illegal, and that the oil ought not to have been sent for analysis without notice to the petitioner and behind his back. The learned Sessions Judge is of opinion that storage of these tins in a broken-down bullock cart does not make that place a place used for the storage of articles intended for human consumption within the meaning of Section 285, Municipal Act, but if these articles had been intended for sale within the Municipality, I do not consider that there would have been necessarily anything irregular in their seizure under Section 286 of the Act.

(2.) Section 285 empowers the Commissioners without warrant to enter certain enclosed places for the inspection of articles intended for sale for human consumption; and Section 287 empowers them to obtain a warrant from a Magistrate for the inspection of such articles in other enclosed places; but it does not follow from this that they have no power to make an inspection of such articles which are not in enclosed places at all; otherwise itinerant vendors would not be liable to inspection. The greater includes the less; if the Commissioners can inspect and seize in a shop by virtue of a special provision which excludes the operations of the ordinary law of trespass, they should be held to be enabled also to inspect and seize on Municipal open places. It would follow that articles of the kind described in Section 285 intended for sale within the Municipality, which are in course of transit in public roads, can be seized by the Commissioners in virtue of the general powers given to them by Section 285, Municipal Act. But these articles were not intended for sale within the Municipality. I think that the learned Sessions Judge is right in thinking that they could not be legally seized under Section 286, Bihar and Orissa Municipal Act, not for the reasons given by him, but because the mustard oil was not being conveyed for sale within the Municipality. Articles of the kind described by Section 285, Municipal Act, cannot be inspected by the Commissioners merely because they are within Municipal limits in transitu. But when they had been seized, and it was found that their condition warranted a complaint of an offence punishable under Section 3, Food Adulteration Act, committed within the Municipal area, there was nothing to prevent the Commissioners from making a complaint in proper form before a Magistrate. The complaint was treated, I think wrongly, as a complaint by a public servant. The complainant ought to have been examined under Section 200, Criminal P.C. before process issued; but it is difficult to see how the formal examination of the complainant under Section 200, Criminal P.C. could have in any way been of benefit to the petitioner, and the omission to examine the complainant must at the worst be regarded as an irregularity which is to be disregarded by virtue of the provisions of Section 537(a), Criminal P.C.

(3.) The learned Sessions Judge also regards the proceedings as irregular because the procedure laid down in Secs.5, 6 and 7, Food Adulteration Act, was not followed at the time of the seizure, so that the proceedings were taken, as the learned Sessions Judge says, behind the back of the manufacturer. If a purchase had been made in the manner prescribed by Secs.5, 6 or 7, Food Adulteration Act, from the vendee of the mustard oil, the proceedings would have been equally behind the back of the manufacturer until he received notice from the Court when process issued on complaint. There is nothing in the Food Adulteration Act which prohibits a Magistrate from taking cognisance on complaint of an offence punishable under the Act wherever that offence may have been discovered. The learned advocate for the petitioner says that there is no evidence to connect him with the tins of mustard oil which are found to have been manufactured in his mill. But the petitioner Ramjas Marwari did not deny that it was his mill, and the evidence of the carter made it clear that these tins were handed over to him in the mill before delivering them to Balarampore. In the circumstances the learned Magistrate was entitled to apply the presumption which is permitted by Sub- section (4), Section 3, Bihar and Orissa Food Adulteration Act, that this mustard oil had been manufactured in that Mill; that is to say by Ramjas Marwari, who is the proprietor of the mill. I cannot interfere in this case. The reference is discharged and I maintain the finding and sentence.