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Patna High Court
Emperor vs Shib Das Marwari on 16 November, 1927
Equivalent citations: 106 Ind Cas 587
Bench: J Prasad, Ross


JUDGMENT

1. This is an appeal by the Government under Section 317 of the Code of Criminal Procedure against the order of the Magistrate, dated the 9th of July, 1927, acquitting the accused Slab Das Marwari. He is a shop-keeper in Mauza Katras. On the 16th of January, 1927, the Sanitary Inspector of Jheria Mines Board of Health went to his shop and found 15 tins of mustard oil exposed for sale. He demanded 2 chhataks of oil and told him that he required it for analysis. The chemical analysis disclosed that the oil was highly adulterated. The accused told the Inspector that he had purchased the tins of oil in. a sealed condition in the same condition in which he purchased them and he used to sell them in that very condition. A Sanitary inspector visited the Dhanbad Oil Mills on the 23rd of January and purchased a sample which was found to be slightly adulterated. The accused was then prosecuted for as offence under Section 3(1) of the Bihar and Orissa Food Adulteration Act (II of 1919), and was convicted by the Magistrate on the 25th of February, 1927. On appeal the conviction was set aside, by the Sessions Judge of Purulia by his order dated the 2nd of May, 1927, upon the ground that no evidence was gone into the case and that the accused had not admitted his guilt. The accused was ordered to be re-tried and was accordingly placed on his trial again on the 9th of July, 1927. He has again been acquitted by the Magistrate Upon the ground that the Sanitary Inspector did not take a full tin of oil in its unopened condition and consequently the accused was not given an opportunity of proving that he bought the oil in the same unopened tin and in the same condition in which it was exposed for sale. The Magistrate says that the procedure adopted by the Sanitary Inspector was irregular and the bona fide intention of the accused was not rebutted and that he was entitled to the benefit of doubt especially when according to the evidence he had purchased the tins only on the day previous to the date on which the sample was taken. The irregularity referred to in the judgment of the Magistrate relates to Section 14, Sub-clause (2) of the Act which says “no person shall be required under Section 6 to sell such food except in the unopened tin or packet in which it is contained.” The learned Government Advocate disputes the correctness of the view taken by the Magistrate and says that the above-mentioned Sub-clause (2) of Section 14 has no application to the case, inasmuch as it refers to “food sold or offered for sale or exposed for sale in an unopened tin or packet duly labeled” as is set forth in the preamble to Section 14 and the oil in question in this case was contained in an unopened tin but the same was not duly labelled. The case of the accused from the very beginning has been that he had purchased the tin containing the oil, sample of which was taken by the Inspector, along with other similar tins thirty-two in number bought from the Oil Mills at Dhanbad and that he used to sell those tins in the unopened condition in which he had purchased them with the oil therein in the same condition and that on the day and the time when the Inspector took sample from the tin in question it along with 14 others was exposed for sale. That this was his case is to be found in the statement of the case given by the Inspector in his complaint wherein he says that he found exposed for sale 15 tins of mustard oil and subsequently in order to test the explanation of the accusel he had the Oil Mills at Dhanbad inspected and sample of mustard oil taken from that Mill. The Inspector was examined on the 9th of July, 1927. The accused was asked to plead and did make his defence on the 8th of July, a day earlier. In his plea the accused stated to the Magistrate that he had taken sealed tins from the” Dhanbad Oil Mills and that they remained in the condition in which he had purchased them and he used to sell them in the same condition. The expression used by the accused “sealed tins” is meant to import the idea that the tins were purchased from a recognized shop with a distinctive markup on them. Accepting the contention of the learned Government Advocate as to the scope and meaning of “unopened tin or packet duly labelled” used in Section 14 it would come under that. The word “labelled” according to the ordinary acceptance of the term would denote written slip of paper or a metal or any other thing fixed or attached to articles of manufacture for the purpose of describing them or specifying their quality, etc., or the name of the maker. The accused says that the tins were sealed and apparently he could not mean anything else than that they bore the distinctive mark showing that they belonged to the Dhanbad Oil Mills from which the accused had purchased them. Let it be stated that neither the word “labelled” nor the word “sealed” necessarily means that it should contain the name of manufacturer. All that is required is that it must be distinctive from which the maker or manufacturer or the firm could be easily traced. The accused clearly gave the condition of the tins on the 8th of July as bringing it within Section 14 of the Act when he was examined in Court, in the cross-examination of the Inspector questions were directed to corroborate the case of the accused on the point. The prosecution, therefore, had full notice and knowledge of what the defence was, namely, that the tins in question came under the definition of it given in Section 14. The Inspector did not question it, but suggested that it was easy for the accused to put in adulterated matter into the tin, inasmuch as it could be easily opened and then closed easily because the mouth was closed with liquefied tin.

2. The suggestion then was that the accused after having purchased the tin from the Dhanbad Oil Mills opened it and farther adulterated the oil and then closed it again, which according to the Inspector would take a few minutes.

3. I, therefore, hold in agreement with the Magistrate that the tin in question was such as is contemplated by Section 14 of the Act and that the accused could not be required to sell the oil contained in it except the entire unopened tin as it was. Clause (2) of the section would, therefore, apply to the case. It was, therefore, wrong on the part of the Inspector to require the accused to sell to him 2 chattaks of the mustard oil by opening the tin.

4. The learned Government Advocate says that even if the Inspector had acted illegally in not purchasing the entire tin as is required by Clause (2) of Section 14, yet the oil of the tin hating been found to be highly adulterated the accused could not take advantage of the illegality or irregularity and must suffer the penalty of law for exposing the oil contained in the unopened tin for sale. He refers to Clause (1) Clause 14 and says that it was for the accused to show that the oil in the tin wad in the same condition in which it was sold to him by the Mill and after that after due care and attention he believed that it was genuine. The procedure adopted by the Inspector has to my mind prejudiced the accused seriously and deprived him of the best evidence to prove his bona fides. Had the tin containing the oil in question been taken possession of by the Inspector by purchasing it in the condition in which he found it, the accused could have been in a position to show that the oil in the tin was in the same condition in which he purchased it from the Mill. It could also have been seen whether the tin had any mark to indicate that it was surreptitiously opened and the contents thereof adulterated by the accused by the easy process referred to by the Inspector in his evidence. The accused made his own statement and examined the Assistant Manager of the Dhanbad Oil Mills, who admitted that only a day earlier the accused had purchased 32 tins of mustard oil from the Mill and that the tins were soldered with liquified tin. The tin in question also was soldered in similar manner. This would indicate that the accused was telling the truth and that he gave the best evidence that was available and that any further best evidence was very much affected by the illegal procedure adopted by the Inspector.

5. In the circumstances of the case the accused was entitled to an acquittal. The appeal is, therefore, dismissed.


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