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1953 Supreme(Cal) 37
HIGH COURT OF CALCUTTA
K. C. Chunder
MAKHANLAL BHOWMIK - Appellant
Versus
RAM BHAKAT SHARMA - Respondent
Criminal Revn. 988 Of 1952
Decided On : FEBRUARY 18, 1953
AJIT KUMAR DUTT
A sale of adulterated food to a Sanitary Inspector is not a compulsory sale and thus not exempt from prosecution under the Bengal Food Adulteration Act.
Headnote:
FOOD ADULTERATION - BENGAL FOOD ADULTERATION ACT, 1919 - SECTION 6, 10, 13, 15 - CALCUTTA MUNICIPAL ACT, 1923 - SECTION 424, 488 - SALE OF ADULTERATED MUSTARD OIL - COMPULSORY SALE TO SANITARY INSPECTOR - WHETHER SALE - PRESUMPTION UNDER SECTION 6(4) - DISPOSAL OF SEIZED ADULTERATED ARTICLE - COSTS.
Fact of the Case:
The District Health Officer, Jalpaiguri, challenged an order of acquittal and an order under Section 13 of the Bengal Food Adulteration Act passed by the Magistrate. The Sanitary Inspector seized a stock of mustard oil found stocked by a firm of merchants, which was highly adulterated. The Magistrate found that the mustard oil was highly adulterated but considered that because the Firm had a factory for soap-making at a considerable distance, the storing might be for such purpose and ordered that the seized oil be made unfit for human consumption and sold by the Chairman of the District Board, with the sale proceeds to be made over to the accused Firm.
Finding of the Court:
The court held that the acquittal was erroneous as the sale to the Sanitary Inspector was not a compulsory sale and the presumption under Section 6(4) of the Bengal Food Adulteration Act was not rebutted by the accused. The court also held that the Magistrate's order under Section 13 was improper as the law does not authorize the Magistrate to order destruction or other disposal of seized adulterated articles except at the cost of the person in possession of the same at the time of seizure.
Issues: 1. Whether the sale of adulterated mustard oil to the Sanitary Inspector was a compulsory sale and thus not a sale within the meaning of the Bengal Food Adulteration Act? 2. Whether the presumption under Section 6(4) of the Bengal Food Adulteration Act was rebutted by the accused? 3. Whether the Magistrate's order under Section 13 of the Bengal Food Adulteration Act was proper.
Ratio Decidendi: 1. A compulsory sale made under the provision of Section 10 of the Bengal Food Adulteration Act does not bring into operation Section 21 as such a compulsory sale is not a sale. However, if there has been a transfer of property in goods for price without any compulsion, it is a sale prohibited by punishment under Section 21 of the Bengal Food Adulteration Act. 2. The presumption under Section 6(4) of the Bengal Food Adulteration Act that a person in possession of adulterated articles is presumed to have manufactured or stored them for sale is a statutory presumption and the duty to rebut it lies on the accused. 3. The Magistrate's order under Section 13 of the Bengal Food Adulteration Act was improper as the law does not authorize the Magistrate to order destruction or other disposal of seized adulterated articles except at the cost of the person in possession of the same at the time of seizure.
Final Decision: The court set aside the order of acquittal and remanded the case to the Magistrate for proceeding further in light of the judgment. The court also set aside the order under Section 13 of the Bengal Food Adulteration Act and remanded the case to the Magistrate for reconsideration.
( 1 ) THIS Rule was issued at the instance of the District Health Officer) Jalpaiguri, against an order of acquittal and an order under Section 13, Bengal Food Adulteration Act, passed by the Magistrate of the District.
( 2 ) THE facts are not seriously in dispute. The Sanitary Inspector seized the stock of mustard oil which was found stocked by a firm of merchants at Banerhat in that District. He took samples from different portions and in analysis it has been found that the whole of the oil was highly adulterated. He had after seizure offered the price. 'it must also be pointed out that in this case prosecution was sanctioned not merely for selling mustard oil but for all the offences connected with mustard in Section 6, Bengal Food Adulteration Act. The Magistrate found that the mustard oil was highly adulterated. He considered that because at a considerable distance the Firm had a factory for soap-making the storing might be for such purpose though the storing was not at the place of soap making and no proof at all was given on behalf of the Firm that storing was actually for any such purpose. The Magistrate therefore considered that as it was a compulsory sale to the Sanitary Inspector there can be no prosecution under Section 6 of the Act. He then ordered under Section 13 of the Act that "the seized oil shall be made unfit for human consumption and sold by the Chairman of the District Board and the sale proceeds may be made over to the accused Firm provided that if after the oil has been made unfit for human consumption the accused firm be desirous of using the said oil in their soap factory and satisfies the Chairman, District Board that the oil will be used only in soap making the oil shall be returned to the accused firm. " In this Rule both the orders of acquittal and the order under Section 13 are called in question.
( 3 ) WE will, therefore, proceed to take them up one by one. As far as the acquittal is concerned it may be pointed out that the case on which the learned Magistrate has relied is not applicable to the present case, but at the same time it must be said that the position is not really very satisfactory as far as the case law is concerned. I shall proceed briefly to refer to the cases.
( 4 ) IN a decision reported in -- 'akhoy Kumar v. Corporation of Calcutta', AIR 1928 Cal 320 (A), a Bench of this Court consisting of Chotzner and Lort-Williams JJ. considered that there was no sale and they were of the opinion that a compulsory sale made under the provision of Section 424, Clause (1), cannot make any person amenable to the punishment provided for under Section 488, Calcutta Municipal Act. With the actual decision there can be no dispute. In that case no question of sale at all arose. Therefore there could be no conviction lor sale of the article. The Food Inspector seized a consignment of ghee at the railway station. The consignment was not sold to him nor was any sample taken out of it, so that no question of sale as mentioned in Section 424, Clause (1), Calcutta Municipal Act, arose. He removed the thing seized to the Municipal office and there he offered compensation in the shape of the price of the article to the person whose thing had been taken away by him either by force or under legal authority I need not decide. In any case, if any one takes away property without consent of the owner find subsequently pays him the compensation of the same it does not come within either the dictionary meaning or the legal meaning of sale which is based upon volition. Therefore all that was said in that case was simply 'obiter dicta'. No question under Section 424s Calcutta Municipal Act, really arose. Then again it is to be noted that the exact wording even in the 'obiter dicta' was not that every sale to a person who may hold the office of the Sanitary Inspector was either a compulsory sale or not a sale. A "compulsory sale" made under the provision of Section 424, Clause (1), does not acco
