1. This application arises from the conviction of one Raghubar Dayal for an offence under Section 4/5, Act 6 of 1912. Section 4 of this Act, renders any person who sells to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance or quality of the article or drug demanded by such purchaser or sells or offers or exposes for sale or manufactures for sale any article of food or any drug which is not of the nature, substance or quality which it purports to be, liable to a fine of Rs. 100. Section 5 brings within the scope of Section 4 the case of any person who on a demand for ghee or butter supplies an article which is not exclusively derived from milk. The case against the accused is that a food inspector of the Agra Municipal Board saw some substance at the accused's place of business and offered to purchase it. He purchased a small quantity apparently under the impression that it was ghee, but the accused has consistently stated that it was not ghee but coconut oil and that it was not intended for food but for manufacture into soap. Chemical analysis proved that the substance was adulterated coconut oil, and as there is nothing to show that ghee was demanded and this article offered in its place Section 5 of the Act does not apply. Section 4 would only apply if the article sold was an article of food or a drug. The Magistrate who tried the case says that cocoanut oil is a food, and I have no doubt that it is edible, but I have never heard that it is sold as food in any of the bazars of this part of India, and I very much question whether in the opinion of the public of this part of the country coconut oil is a food, and certainly there is no evidence that the accused kept this article for sale as food. The charge was clearly based on the assumption that he was selling this mixture of coconut oil as ghee, and this has not been proved against him. There is therefore an initial difficulty in the prosecution of this case, namely, that it is uncertain whether the facts which have been proved constitute any offence.
2. But this is only one of the many objections which have been raised to the conduct of these proceedings. In the first place under Section 15, Act 6 of 1912, it is necessary that every summons issued in a prosecution under Section 4 of the same Act shall specify the particulars of the offence charged and the name of the prosecutor. The summons in this case stated that the King-Emperor through the Municipal Board was the prosecutor and this may possibly be held to be a compliance with the Act. But particulars of the offence were certainly not given. All that was said was that the offence was under Sections 4 and 5, Act 6 of 1912, together with the bye-laws relating to ghee. This is no description of the offence, and in so far as it does indicate the nature of the prosecution it gives a false impression of the charge brought against the accused. The mandatory nature of the provisions of Section 15, Act 6 of 1912, has been emphasized by a judgment of this Court in the case of Benarsi Das v. Emperor : AIR1930All595 where it was held that the failure to state the particulars of the offence charged was fatal to the prosecution.
3. This leads to the second defect which also began with the summons. There was a second charge against the accused that he was keeping a ghee shop without a proper signboard, and the two charges were tried together. There is no connexion whatever between selling adulterated coconut oil and failing to expose a signboard over a ghee shop. It is true the Magistrate finding that this was not a ghee shop and no signboard was necessary acquitted the accused of the charge under the ghee bye-law, but clearly the combination of such an offence with that for which the accused was convicted was prejudicial to him in every way. It imported into the case the idea that he was selling adulterated ghee, and this charge was never established against him. It is now accepted law that a misjoinder of charges of this nature is fatal to the prosecution despite anything that may be contained in Section 537, Criminal P. 0.
4. The last objection raised as to the proceeding was that the person who instituted the prosecution was not authorized to do so. The person who signed the complaint was a gentleman named Maha Shankar. Under Section 12 of the Act the Municipal Board authorized this gentleman to institute and conduct prosecutions under the Act on 21st August 1930, but he made his complaint on 15th July 1930, when it does not appear that he was so authorized. Apparently it has been accepted by the Courts below that he was at that time executive officer, and possibly this fact may cure the alleged defect, although it is hardly clear how the Courts below have arrived at their conclusion.
5. In addition to the numerous irregularities which I have already pointed out the sentence was illegal. The maximum sentence for the offence alleged to have been proved was a fine of Rs.. 100, and I am surprised that this fact was not brought to the notice of the learned Sessions Judge. I do not think that the Sessions Judge is right in brushing aside what he called technical illegalities in this trial. I consider that although many of them were technical the accused was prejudiced throughout in that he never had a proper understanding of the case which he was supposed to meet. And I doubt whether he would ever have been prosecuted at all had the inspector accepted his statement at the outset that the article purchased by him was cocoanut oil and not ghee. The prosecution was based on the idea that this sub-stance was sold as ghee, and when this fact was not established the accused was entitled to an acquittal.
6. I allow this application, and set aside the conviction and sentence. The fine, if paid, will be restored to the applicant.