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1953 Supreme(Bom) 77
IN THE HIGH COURT OF BOMBAY
Gajendragadkar P.B. and Chainani H.K. , JJ.
Appellants: State
Vs.
Respondent: Amratlal Bhogilal and Anr.
Criminal Appeal No. 641 of 1953
Decided On: 06.08.1953
Counsels:
For Appellant/Petitioner/Plaintiff: A.A. Mandgi, Adv.
For Respondents/Defendant: Rajani Patel and I.C. Bhatt, Advs.
The sale of ghee to a food inspector is a valid sale within the meaning of Section 4(1)(a) of the Bombay Prevention of Adulteration Act, 1925, and ghee with an R.W. value of less than 24 is presumed to be adulterated under Rule 6(B)(i) of the Bombay Prevention of Adulteration of Articles of Food Rules.
Headnote:
BOMBAY PREVENTION OF ADULTERATION ACT, 1925 - SALE OF ADULTERATED GHEE - SECTIONS 4(1)(A), 4(1)(B), 4(3), 8, 9, 11 - RULES 6(B)(I) - SALE TO FOOD INSPECTOR - PRESUMPTION OF ADULTERATION - DEFENCE OF WARRANTY - INTERPRETATION.
Fact of the Case:
The opponent, manager of a shop selling ghee and other articles, was prosecuted for selling and keeping or exposing for sale adulterated ghee under Sections 4(1)(a) and 4(1)(b) of the Bombay Prevention of Adulteration Act, 1925. The food inspector purchased 3/4 lb. of ghee from the opponent, divided it into three parts, and sent two samples for examination. The public analyst found the ghee to be adulterated with a B.R. reading of 44.3 and an R.W. value of 21.1. The opponent claimed that the ghee was pure as it had been tested and certified by the Ahmedabad Ghee Merchants Association. The trial court acquitted the opponent, holding that the sale to the food inspector was not a voluntary sale and that the ghee was pure based on the association's certification.
Finding of the Court:
The High Court reversed the trial court's order and convicted the opponent under Sections 4(1)(a) and 4(1)(b) of the Act. The court held that the sale to the food inspector was a valid sale within the meaning of the Act, even though the inspector purchased the ghee for analysis and not for personal consumption. The court also held that the ghee was presumed to be adulterated under Rule 6(B)(i) of the Bombay Prevention of Adulteration of Articles of Food Rules due to its R.W. value being less than 24. The court rejected the opponent's defense that he had no reason to believe the ghee was adulterated, as the proviso to Section 4(3) of the Act requires all three conditions of the proviso to be satisfied, including the purchase of the ghee under a warranty, which was not the case here.
Issues: 1. Whether the sale of ghee to a food inspector is a valid sale within the meaning of Section 4(1)(a) of the Bombay Prevention of Adulteration Act, 1925? 2. Whether the ghee in question was adulterated? 3. Whether the opponent had a valid defense under the proviso to Section 4(3) of the Act?
Ratio Decidendi: 1. The court held that the sale of ghee to a food inspector is a valid sale within the meaning of Section 4(1)(a) of the Act, even though the inspector purchased the ghee for analysis and not for personal consumption. The court reasoned that the Act intended such transactions to be regarded as sales for the purposes of the Act, as evidenced by the use of the words "purchase" and "sell" in Section 11. 2. The court held that the ghee in question was adulterated based on the presumption under Rule 6(B)(i) of the Bombay Prevention of Adulteration of Articles of Food Rules. The rule states that ghee with an R.W. value of less than 24 is presumed to be adulterated. The public analyst's report showed that the ghee had an R.W. value of 21.1, which satisfied the presumption of adulteration. 3. The court held that the opponent did not have a valid defense under the proviso to Section 4(3) of the Act. The proviso allows a seller to avoid liability if they can prove that they purchased the ghee as an agent with a written warranty, had no reason to believe it was adulterated, and sold it in the same state as they purchased it. However, the opponent did not purchase the ghee under a warranty, so the proviso did not apply.
Final Decision: The High Court set aside the trial court's order acquitting the opponent and convicted him under Sections 4(1)(a) and 4(1)(b) of the Bombay Prevention of Adulteration Act, 1925. The court sentenced the opponent to pay a fine of Rs. 100 under Section 4(1)(a) of the Act.
1. This is an appeal by the State of Bombay against the order passed by the Additional Stipendiary Magistrate, First Class, Ahmedabad, acquitting the opponent, who was prosecuted under Section 4 (1) (a) and Section 4 (1) (b) of the Bombay Prevention of Adulteration Act, 1925.
The opponent, who was accused No. 2 in the trial Court, is the manager of a shop in Ahmeda-bad, at which ghee and other articles are sold. On March 7, 1952, the food inspector of the Ahmedabad Municipality, witness Dave, went to this shop. He purchased 3/4 lb. of ghee from the opponent and paid him Rs. 1-11-0 for it. He told the opponent that the ghee was to be sent for analysis. He then divided the ghee purchased by him in three parts, put each of them in a separate bottle and sealed, labelled and signed each bottle. One of the three bottles was given to the opponent, who was asked to pass a receipt. The opponent then gave the inspector a receipt stating that he had received Rs. 1-11-0 for 3/4 lb. of ghee sold to the inspector for getting it analysed and that he had also received a sample bottle. The other two samples were sent to the municipal laboratory for examination.
The public analyst found that the ghee was adulterated to the extent of 14 per cent. In his opinion it was not genuine ghee. Its B. R. reading at 40" C was 44-3 and its R. W. value was 21.1. The opponent, along with the owner of the shop, who was accused No. 1 in the trial Court, was then prosecuted for selling and keeping or exposing for sale adulterated ghee under Section 4 (1) (a) and Section 4 (1) (b) of the Bombay Prevention of Adulteration Act (hereinafter referred to as the Act).
Both the accused pleaded not guilty. The owner of the shop stated that the opponent, accused No. 2, looked after the entire business of the shop, that he never attended to it and that consequently he was not liable. The opponent (accused No. 2) in his statement also stated that he had been entrusted with the management of the shop and that accused No. 1 had no concern with it. The learned Magistrate, therefore, acquitted accused No. 1. The opponent further stated that all tins of ghee kept for sale at his shop had been tested in the laboratory of the Ahnieda-bad Ghee Merchants Association, who had certified it as genuine ghee and that he had therefore taken sufficient care to see that the ghee which was sold at his shop was pure ghee.
The opponent examined one Chimanlal, who claims to be the President of an association of ten ghee merchants in Ahmedabad. Chimanlal has deposed that he had employed one Bansilal for taking B. R. readings of the ghee sold by him, that he never sold ghee of which the B. R. reading was more than 44 at 40° C and that he had sold two tins of ghee to the opponent on March 5, 1952, i.e. two days before the opponents shop was visited by the food inspector. The learned Magistrate accepted the opponents defence that the ghee sold by him was pure, as according to the evidence of Chimanlal its B. R. reading was less than 44. He also appears to have been of the opinion that the sale of ghee to a food inspector would not be sale within the meaning of Section 4(1) of the Act.
The learned Magistrate has also observed that from the "statements and demeanour" of the accused, it was clear that they were not guilty. It is not easy to understand how the learned Magistrate came to this conclusion, for the oral statement of accused No. 1 consists of only one sentence that he was filing a written statement, while that of the opponent consists of five sentences. The learned Magistrate accordingly acquitted the opponent. Against his order acquitting the opponent, the present appeal has been filed.
2. Section 4 (1) (a) of the Act provides that any person who sells or causes to be sold or offers for sale to the prejudice of the purchaser any article of food which is not of the nature, substance or quality demanded by or on behalf of the purchaser, shall, on conviction, be punish
