Karnidan Sarda and another vs Emperor

Rowland, J.—The petitioners in this case are two brothers, members of a joint Mitakshara family and owners of an oil mill in Purulia. They were prosecuted before a Deputy Magistrate at Purulia on the allegation that the accused were manufacturing for sale and offering for sale, on 24th December 1934, mustar oil which was below the standard prescribed by the Local Government under Bihar and Orissa Act II of 1919. The standard prescribed in Notification No. 9363-L.S.C., dated 16th December 1924, is that mustard oil shall for the purposes of S. 3 be deemed to be below the standard prescribed by rule if the iodine value is loss than 96 or more than 108, or if the total saponification value is less than 169 or more than 176. An officer of the Municipality on the date in question went to the mill and asked for samples which were furnished. On a chemical analysis the sample was found to be below the prescribed standard,--the iodine value being 124 and the total saponification value 180. The oil admittedly was manufactured at the mill of the accused and admittedly is not a pure mustard oil. It appears that the accused at the time of furnishing the sample informed the Inspector that it was their "mahabir" brand of Guja mixed mustard oil. At the trial the accused Karnidan Sarda said that the composition of the oil was mustard oil and Guja oil in equal quantities and the mark on the label affixed to the sample by the Inspector shows that this was what the oil was represented to him to be at the time.

It is contended that in the absence of any evidence of deceit or that the oil was other than that which it was represented to be, the accused cannot be held guilty of the commission of any offence. It was also suggested that as it is the practice of the accused to sell the oil in sealed tins, it was improper of the Inspector to take a small sample. In the original proceedings it was contended also that the second petitioner had nothing to do with the manufacturing and sale of the oil which were in the hands of his elder brother Karnidan. This last point, however, is a matter of fact which was determined adversely to the second petitioner in the Court of first instance and I do not think I can re-open it in revision.

I shall, therefore, examine first the question whether the offence under S. 3 (2) of the Act has been committed. It is an offence to sell or offer for sale or expose for sale or manufacture for sale any food which is below the standard prescribed by rule ; and mustard oil is a food for which is a standard has been prescribed by rule under the Act. The point for decision, therefore is whether the accused, who were manufacturing and offering for sale their "Mahabir Brand Mixed Guja Mustard Oil," were thereby committing the offence ; and it comes to this : Were they selling or manufacturing mustard oil ? The arguments adduced were that when the full description of the article itself showed that the oil offered did not purport to be pure mustard oil, there would be no offence. Substantially, a similar contention was raised in Rameshwar Chaudhury v. Purulia Municipality, 1933 Pat 193= 1933 Cr C 586= 143 IC 65= 34 Cr LJ 572= 14 PLT 146. In that case it was held that the placing of a placard outside the shop to indicate that mixed oil was obtainable, which was not food for human consumption, did not affect the case. Apparently, the article, in respect of which a conviction was had in Rameshwar Chaudhury v. Purulia Municipality, 1933 Pat 193= 1933 Cr C 586= 143 IC 65= 34 Cr LJ 572= 14 PLT 146, was sold as mustard oil. The judgment of James, J., makes lit clear that if an article is sold as mustard oil and is not in accordance with the prescribed standard for mustard oil, the offence under S. 3, of the Act, is committed notwithstanding that there may be a placard or other advertisement enabling the public or the literate position of the public to ascertain before making their purchases that the oil is some other article than pure mustard oil. In the present case we have in the description of the article the words "mustard oil" as the concluding and substantive portion of the description with some adjectival description preceding the substantive name. This preliminary adjectival description may give the intending purchaser notice that what he is getting is not pure mustard oil; but this is not, in my opinion, a compliance with the law. What S. 2, Cl. (2), means in my view is that the name "mustard oil" with or without prefixes is not to be used for an article which is not mustard oil of the standard prescribed by rule under the Act.

I may turn now at once to the argument addressed to me by Mr. Gupta on the question of sentence, the substance of which is that the accused believed themselves to be acting in accordance with the law and doing nothing illegal. It is pointed out in para. 3 of the petitioners'' application that from time to time the mustard oil manufactured by the accused and known as "Jahaz" brand was sampled on various occasions and always found to be in accordance with the standard specified by the Government. This assertion is not challenged on behalf of the prosecution. The accused Karnidan in hiss examination has candidly stated:

I prepaid oil by mixing half quantity of Guja and half quantity of mustard. But that was no offence. We can do so.

And in para. 4 of the application it is similarly stated that the "Mahabir" brand oil is a different kind of oil and not mustard oil. It seems to me by no means impossible that the accused may have been under the impression that it was lawful to manufacture and sell this mixed oil as a mixed mustard oil. That is a matter which I shall consider when I come to the question of sentence. But I must first deal with the other branch of the legal argument, that the procedure followed by the Inspector was wrong and the proceedings were not lawfully instituted. S. 6 of the Act declares that a person authorized by a local authority may purchase a sample of food and submit it for analysis. Sub-S. 2 imposes a penalty on the person in possession of food offered or exposed or manufactured for sale, if when an authorized person proposes to purchase such food and tenders the price for a quantity reasonably requisite for analysis, he refuses to sell the same. These provisions are to be read with those of S. 14 of the Act, which applies to food sold or offered for sale or exposed for sale in an unopened tin or packet duly labelled. In those cases the person selling the food is not deemed to have committed an offence under sub-S. (1), S. 3, if he proves that he bought the food in the same unopened tin or packet and in the same condition in which it was so offered and exposed and using due care and attention he believed such food, when he so sold or offered or exposed it, to be genuine ; and no person shall be required under S. 6 to sell such food except in the unopened tin or packet in which it is contained.

The argument is that as the Inspector had not power to compel the sale to him of a small quantity as sample, it was contrary to law for him to take such a small quantity. The cases which have been referred to in this connection are Emperor v. Shib Das Marwari, 1928 Pat 213 = 106 IC 587= 29 Cr 75= 9 PLT 434 and Pranjivan v. Emperor, 1931 Pat 337= 131 IC 541= 1931 Cr C 785= 32 Cr LJ 741= 12 PLT 470. These cases, in my opinion, do not advance the contention of the petitioners. In both of them the facts were that the Inspector on demanding a sample was supplied with a sample by opening a, sealed tin. In neither case, apparently, did the vendor object to selling a small quantity: At the trial in each case the defence was that the accused had purchased the oil in sealed tins which had not been tampared with since and that the accused in good faith believed the contents of the tins to be genuine and unadulterated. The result of opening the tin for the purpose of giving a sample to the Inspector in each case was that it became difficult, if not impossible, for the accused to prove by positive evidence that the tins had not been tampered with between the time of his purchase and of the taking of the sample. In Emperor v. Shib Das Marwari, 1928 Pat 213= 106 IC 587= 29 Cr 75= 9 PLT 434 it was said that the procedure had "prejudiced the accused." If I understand correctly the judgment of Jwala Prasad, J., the reference was not to prejudice in general but prejudice in the very particular matter of establishing the defence (which under S. 14 of the Act, would have been an answer to the charge) that the accused had purchased the oil in a sealed tin which had not been tampered with. In Pranjivan v. Emperor, 1931 Pat 337= 131 IC 541= 1931 Cr C 785= 32 Cr LJ 741= 12 PLT 470 the facts were similar and the position is stated with still greater clearness. The principle on which the judgment of James, J., proceeded was that the accused was not liable to be punished unless there was reason to believe that he was not speaking the truth when he said that he believed the goods purchased by him in a sealed tin to be genuine. Neither of those decisions is applicable to the present case. Here no question arises of the accused having bought the goods from another manufacturer and accepted them in good faith without inspection.

There is some evidence that this Mahabir brand" oil is ordinarily sold in sealed tins; but there is no evidence that the sample taken was in such a tin or was obtained by opening such a tin. Even if it be assumed that the oil was taken from a sealed tin, there is no suggestion that the vendor demanded that a complete and entire tin should be taken. S. 14 exempts the vender from the legal compulsion to sell a small sample, in case he wishes to sell a whole sealed parcel. It does not nullify the sale if he voluntarily sells a small sample. The position seems to me to be this. The fact that the statute gives an authorized person the power of compulsory purchase does not affect the right which such authorized person has in common with every member of the public of proposing to purchase goods and, if the vendor assents of making that purchase. Therefore there is nothing in the proceedings of the Inspector which can affect the correctness of the conviction in this case. The convictions of both accused must therefore be affirmed. Earlier in the judgment I have mentioned the points bearing on the question of sentence namely that the accused may have been, under the impression that it was lawful to manufacture and sell this mixed oil under the description of a mixed mustard oil. In view of the previous record of the accused, it seems to me that it was inappropriate to impose on each of the; petitioners the maximum sentence which could be imposed by law for a first offence. I would therefore reduce the sentence on Karnidan Sarda to a fine of Rs. 15 and that on Motilal Sarda to a fine of Rs. 10, the excess already realized from the accused to be refunded to them.