1. This is an application by the Medical Officer, Municipal Board, Aligarh, praying for the setting aside of the order of the learned Sessions Judge of Aligarh, acquitting in appeal Puranmal accused of his conviction under Section 4, U.P. Prevention of Adulteration Act, 6[vi] of 1912.
2. Puranmal. accused, carries on oil shop at Aligarh. On 22nd June 1940 Syed Hasan Khan, Sanitary. Inspector of the Aligarh Municipal Board, went to the shop of the accused and asked for pure Laha oil on payment of price. The accused gave him the oil under a receipt in which he expressly declared that the oil was pure. The oil was sent to the public analyst for examination. The public analyst reported that the oil contained a small quantity of impurity. The accused was then prosecuted under Section 4 of Act 6[VI] 1912. The accused denied the charges 'simpliciter.' He did not plead, in his defence, the circumstances mentioned in Section 6 of the Act, as absolving him of the offence. The report of the public analyst, that the oil sold by the accused contained some impurity, was not challenged nor was the fact, that the accused sold this very oil to the Sanitary Inspector, challenged. The learned Magistrate was of opinion that the offence under Section 4 - was proved and he sentenced the accused to pay Rs. 75 and in default to undergo two months simple imprisonment.
3. Puranmal went up in appeal to the Sessions Judge of Aligarh. The Sessions Judge was of opinion that since the report of the public 'analyst showed that the impurity was 'small' land not large, it is possible that the impurity did not exceed 5 per cent. He observed:
It may further be remarked that Laha oil is cheap commodity and if cent per cent pure Laha oil is sold in the market, it would be very expensive. In other words, in the Laha oil sold in the market, a small percentage of impurities would always be found. The dealers also can have no opportunity to test so as to be able to determine if the oil purchased by them from the manufacturers is cent per cent pure.
The learned Judge further observed that the accused had been put to considerable harassment and expenses, having been tried not at Aligarh but by a Special Magistrate holding his Court at Hathras - he did not consider it advisable to order a retrial. In the result, he acquitted the accused. The Municipal Board of Aligarh has come up to this Court in revision. The contention advanced on behalf of the applicant by Mr. P.N. Bakshi is that the learned Judge's view that where the impurity is small or negligible, no offence is committed under Section 4, U.P. Prevention of Adulteration Act, is wrong. The learned Counsel says that as in the present case there was an express warranty that the article was 'pure' the case was governed by the second part of Section 4 and even the slightest impurity would entail, the commission of the offence. I think this contention of the learned Counsel is sound. Section 4, U.P. Prevention of Adulteration Act, runs as follows:
Whoever sells to the prejudice of the purchaser any article of food, or any drug which is net 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 (or which is sold or exposed for sale in a mannar contrary to any regulation issued by the Provincial Government under Sub-section (f), (g) or (h) of Section 14 shall be punished for the first offence with fine which may extend to two hundred rupees and for a second or any subsequent offence with fine which may extend to one thousand rupees or imprisonment of either description not exceeding three months or both.
Then there is a proviso to the following effect:
Provided that no article shall be deemed to have been sold to the prejudice of the purchaser in the following cases:
b. Where in the process of production, preparation, or conveyance of such article of food or drug some extraneous substance has unavoidably become intermixed therewith.
4. It is clear from a perusal of this section that it divides itself into two parts, (a) : whoever 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, (b) whoever 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.
4a. Mark the words 'which it purports to be' which occur in the second part of the section. An article can be said to purport to be of a particular nature either when there is a label upon it showing that it is of that nature or quality or there is a sign-board or advertisement indicating that the article sold is of that nature or quality or (this is important) the seller himself orally affirms that it is of that nature or quality. The difference, therefore, between a sale falling under part I and a sale falling under part II is that whereas in the first part it is the purchaser who demands the article of food or any drug of certain nature, substance or quality and the seller does not expressly say anything about the nature, substance or quality, in the second part it is the seller who says what the nature, substance or quality of the article is.
5. In the first part of the section prejudice to the purchaser has to be proved in addition to the fact that the article is not of the nature, substance or quality demanded by the purchaser. In the second part prejudice to the purchaser has not to be proved. It is enough that the seller declares an article to be of a certain nature, substance or quality. In the first part the seller does not give any express warranty. In the second part the seller gives an express warranty. Where the seller does not give an express warranty but supplies an article which is not cent per cent of the same nature, substance or quality as demanded by the purchaser, the section provides that the sale must be to the prejudice of the purchaser and the proviso to this section lays down several instances in which the article shall not be deemed to have been sold to the prejudice of the purchaser and one of those instances is mentioned in Clause (b) quoted above, namely, where in the process of production, preparation, or conveyance of such article of food or drug some extraneous substance has unavoidably become intermixed therewith.
6. The result, therefore, is that where the seller gives an express warranty that the article is cent per cent pure, then even though the impurity is negligible, he has committed an offence but he commits no offence if he does not give an express warranty and the case falls within the first part of Section 4 provided he can prove that the small impurity in the articles supplied is due to its being unavoidably intermixed in the process of production, preparation or conveyance of the article. Inasmuch as in the present case the seller gave an express warranty of the article being pure, his case falls under the second part of Section 4.
7. In Budh Sen v. Emperor : AIR1934All329 , it was held by Niamatullab J. that:
Section 4 of the Act does not exempt from punishment a person who sells as pure wheat flour, a flour which is not pure but contains some mixture 01 barley however slight. The fact that the amount of adulteration is negligible or is universally tolerated may affect the sentence but cannot affect the conviction.
The above statement of the law would be true only if the case fell within the purview of the second part of the section. In that case, however, the facts were that a Sanitary Inspector of the Municipal Board asked for a piece worth of 'pure wheat flour.' The accused supplied it without mentioning the fact that it might have a negligible percentage of barley flour. It does not appear from the report of the case that there was any express warranty given by the seller that the wheat-flour was pure. As such the case would fall within the purview of part I of Section 4. The learned Judge in that case did not consider Clause (b) of the proviso to that section, otherwise he would have come to a different conclusion. In the same volume there is another case decided by the same learned Judge, Mithanlal v. Emperor : AIR1934All439 . In that case the facts were that the accused was a dealer in wheat-flour. A Sanitary Inspector in the employment of the Municipal Board took sample of the flour which was then in his shop and sent it to the Public Analyst who detected a mixture of Barley flour. It does not appear from the report of the case whether the accused gave any express warranty about the purity of the wheat flour and as such the case fell within the purview of part I of Section 4. His Lordship held that a negligible quantity of barely is always found inevitably mixed up with wheat as barley gets mixed up in wheat crop when the latter is threshed and as such the accused could not be said to have committed any offence. I respectfully agree with the decision. I, however, do not agree with some of the observations made by his Lordship in the body of the judgment. The learned Judge observed that in a case falling under part I of Section 4, the seller is taken to have given an absolute warranty of quality and that the slightest breach of that warranty would make him guilty of the offence and that in the second part of Section 4 the warranty is an implied warranty and is not absolute and that under the second part if a particular article of food is commonly assumed to contain a foreign mixture not injurious to health and the article offered or exhibited for sale by the accused is found to contain such mixture and no more, the implied warranty held out by him is not broken and he cannot be held to be guilty of an offence falling under second part of Section 4. I think the true view is the other way round. I think the learned Judge really meant to say that the slight impurity which is inevitably mixed up in an article will take the case out of the section only if the case fell within the purview of part 1 and not of part II of the section.
8. Thus inasmuch as the present case falls within the purview of part II of Section 4 by reason of the express warranty given by the seller, I think the accused was guilty of the offence he was charged with.
9. The question then arises whether I should order a retrial in the circumstances of the case. I, however, think that this is a case in which-no trial should be ordered. There is a doubt, as the evidence on the record proves, that small quantity of sarson is inevitably mixed up with Laha seed and what is usually known Laha oil always is found to contain a small quantity of sarson oil in it and no reasonable man objects to this small negligible mixture. There was no attempt in this ease of deliberately and fraudulently mixing up some other oil with Laha oil to increase its bulk and to reduce the cost. For ought we know the accused may have purchased this oil in the same condition as it was from manufacturers. The offence, therefore, is purely a technical one and in view of the fact that the accused has already been made to suffer much monetary loss because of the trial having taken place at Hathras instead of at Aligarh, I do not consider it a fit case in which to order a retrial.
10. I, therefore, dismiss this application in revision.