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HIGH COURT OF CALCUTTA
MITTER, SEN GUPTA
JAGDISH CHANDRA - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Criminal Revn. 897 Of 1952
Decided On : APRIL 15, 1953
CALCUTTA MUNICIPAL ACT, 1923 - SECTION 407, 422 - MUSTARD OIL - ADULTERATION - PRESUMPTION - VALIDITY OF NOTIFICATIONS - CONSTRUCTION OF STATUTES - STRICT CONSTRUCTION - ULTRA VIRES.
Fact of the Case:
The petitioner was convicted under Section 407 read with Section 488, Calcutta Municipal Act, 1923, for selling adulterated mustard oil. The prosecution's case was based on an analysis of a sample of the oil concerned disclosing a saponification value of 177.8. The petitioner's defense was that the oil was pure.
Finding of the Court:
The court held that the notifications issued by the Government under Section 422 of the Act, prescribing standards for mustard oil in terms of chemical reactions, were ultra vires the Act. The court found that the notifications did not declare the normal constituents of mustard oil, as required by Section 422, but rather prescribed standards for mustard oil in terms of chemical reactions. The court also found that the notification providing for a presumption of adulteration when the saponification value or iodine value of a mustard oil sample fell outside the prescribed ranges was contrary to the terms of Section 422, which authorized the Government to prescribe what addition of extraneous matter would raise a presumption of adulteration.
Issues: 1. Whether the notifications issued by the Government under Section 422 of the Act, prescribing standards for mustard oil in terms of chemical reactions, were ultra vires the Act. 2. Whether the notification providing for a presumption of adulteration when the saponification value or iodine value of a mustard oil sample fell outside the prescribed ranges was contrary to the terms of Section 422.
Ratio Decidendi: 1. The court held that the notifications were ultra vires the Act because they did not declare the normal constituents of mustard oil, as required by Section 422, but rather prescribed standards for mustard oil in terms of chemical reactions. The court found that the notifications did not comply with the terms of Section 422, which required the Government to declare the normal constituents of mustard oil and to provide for a presumption of adulteration based on a deficiency in those constituents or the addition of extraneous matter. 2. The court held that the notification providing for a presumption of adulteration when the saponification value or iodine value of a mustard oil sample fell outside the prescribed ranges was contrary to the terms of Section 422, which authorized the Government to prescribe what addition of extraneous matter would raise a presumption of adulteration. The court found that the notification was not in terms of Section 422 and that it independently provided for a presumption of adulteration based on the failure of a sample to give the chemical values characteristic of genuine mustard oil.
Final Decision: The court set aside the petitioner's conviction under Section 407/488 of the Calcutta Municipal Act, 1923.
( 1 ) THIS Rule was directed against the petitioner's conviction under Section 407 read with Section 488, Calcutta Municipal Act, 1923, for having sold adulterated mustard oil. The prosecution case was based upon an analysis of a sample of the oil concerned disclosing' a saponification value of 177,8. The petitioner's defence was thai the oil was pure.
( 2 ) THE validity of the conviction depends upon the construction to be placed upon the relative words of two Government Notifications, numbered respectively 735 P. H. and 736 P. H. , both dated 20-3-1928, issued in exercise of the power conferred by Section 422 of the Act.
( 3 ) THE material part of Section 407 of the Act is in these terms:"407 (1) No person shall directly or indirectly, himself or by any other person on his behalf, sell, expose or hawk about for sale, or manufacture or store for sale, any of the following articles, namely,. . . . . (e) mustard oil,. . . . . unless the following conditions are fulfilled, namely,. . . . . (v) in the case of mustard oil it shall be derived exclusively from mustard seed;"it is clear from the section that what is prohibited is the sale etc. of mustard oil which is not derived exclusively from mustard seed. Section 422 is as follows:"the Provincial Government may declare the normal constituents of any article of food or any drug and may determine, by rules in this behalf, what deficiency in any of these constituents, or what addition of extraneous matter or proportion of water in a sample of any article of food or drug, shall, for the purposes of this Act, raise a presumption until the contrary is proved that the article of food or drug is not genuine or is injurious to health; and a public analyst shall have regard to such rules in certifying the result of an analysis under this Act. "this section thus empowers Government (i) to declare the normal constituents of any article of food, and (ii) to determine, by rules in this behalf, what deficiency in any of these constituents shall raise a presumption until the contrary is proved that the article of food is not genuine. It also provides that a public analyst shall have regard to such rules in certifying the result of an analysis under the Act.
( 4 ) THE material portions of Notification No. 735 P. H. are as follows:"in exercise of the power conferred by Section 422, Calcutta Municipal Act, 1923 (Bengal Act 3 of 1923), the Government of Bengal (Ministry of Local Self-Government) are pleased to declare that the normal constituents of the articles of food named below are those specified against each such article, namely: mustard oil is the fixed oil express or extracted from mustard seed and shall have a saponification value of not less than 169 and not more than 175 and an iodine value of not less than 96 and not more than 104. "rule 7 of Notification No. 733 P. H. is in these terms:"7. Mustard oil. (a) where in a sample of mustard oil the saponification value is less than 169 or more than 175 it shall be presumed, until the contrary is proved for the purposes of the Act, that the mustard oil is not genuine by reason of the addition thereto of extraneous oil. (b) Where in a sample of mustard oil the iodine value is less than 96 or more than 104 it shall be presumed, until the contrary is proved for the purpose of the Act, that the mustard oil is not genuine by reason of the addition thereto of extraneous oil. "it is clear from the language of Section 422 that it is a certain quantum of deficiency in any of the normal constituents of mustard oil that raises a presumption that the oil is not genuine. That being so, unless the constituents are declared or known, the question of a deficiency does not arise. Section 407 provides that no one is to sell mustard oil unless it is derived exclusively from mustard seed. The question to be decided is whether the first-named Notification can be said to declare the normal constituents of mustard oil which is derived exclusively from
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