SARUP LAL Vs. EMPEROR

JUDGEMENT

(1.) The petitioner was a salesman in a grocer's shop who was prosecuted and fined Rs. 30 under Section 3, Clause (1), Bihar and Orissa Prevention of Adulteration Act of 1919, on the allegation that he sold suji which was not genuine. The Health Officer of Rosera Municipality went to the shop and purchased a sample of suji which, as provided in the Act was divided into parts each part being sealed separately and one part being sent to the Chemical Analyst for examination. The Chemical Analyst reported on the sample submitted to him that the suji in his opinion was not genuine. The Magistrate fined the accused and the appellate Court, upheld the order. In appeal it is contended firstly that a prosecution is forbidden by Section 10 of the Act to be instituted without the order or consent in writing of the local authority or of a person authorized by the local authority in this behalf and that there is no such authority. This was a question of fact which ought to have been raised and determined in the Court of first instance. It would have been well if the trying Magistrate had of his own initiative examined the question whether there was the proper sanction for the initiation of the proceedings and recorded a finding. This would have avoided the necessity of a controversial discussion at a later stage and before a Court not having equal facility of access to the materials for determining whether the sanction is in order or not. But in revision, if there is an absence of a complaint by the local authority or an authorized person, and if the proceedings are irregular for that reason, Section 537 provides sufficiently to cure the irregularity. It is said that there is on the record a letter from the Chairman of the Rosera Municipality, but the local authority is the "Municipal Commissioners" and it does not appear whether the Commissioners authorized the Chairman or Seonandan Singh, whose name appears as complainant, to prefer a complaint under Section 10.

(2.) It was next contended that the proceedings are bad because it is not shown that the Bihar and Orissa Prevention of Adulteration Act has been brought into force by a notification of the Local Government in the Rosera Municipality. This again is a question which ought to have been raised and determined before the Court of facts. In the appellate Court the question appears to have been raised, but the pleader for the appellant stated at the time of argument that he was not pressing that point because he found that there was no merit in this contention inasmuch as it was pointed out by the other side that the operation of the Act was extended to the area. It would have been well if the notification extending the Act to the area had been cited in the appellate Court's judgment. The question has again been raised in revision, but it seems to me that the appellate Court's observations amount to a finding of fact.

(3.) The third point taken goes more to the merits. It is pointed out that "not genuine" is an expression defined in Section 4 of the Act. Food is deemed to be not genuine in three classes of cases. There is no finding by either of the Courts below under which of these classes the sample of suji examined was taken to be "not genuine." The Courts below have also had no regard to Excep. (ii) to Section 4. In my opinion this argument is not without substance. The first class of food which is deemed "not genuine" is food which is not the same as it purports or is represented to be as for instance if linseed oil is sold as mustard oil; but the Magistrate has not said that he thinks that the sample sold was not suji. The second class is food in which any matter or ingredient has been added fraudulently to increase the bulk, weight or measure, or to conceal the inferior quality. Probably if the Magistrate gave any attention to the matter at all it would be with reference to this provision that he might have held this sample to be "not genuine." The Chemical Analyst's report showed that it was not hundred per cent suji. There was found in it gluten 7.15%, ash 0.54%, moisture 11.2 % and on microscopic examination foreign starch grains were found under the microscope in fair number. The Chemical Analyst does not seem to have based any adverse opinion on the presence of moisture or on the presence of ash or on the presence of gluten.