1. This is a rule calling upon the District Magistrate of Midnapore and the Chairman of the Midnapore Municipality to show cause why the conviction of the petitioner should not be set aside. He has been convicted of an offence punishable under Section 6(1) read with Section 21, Bengal Food Adulteration Act. P.W. 1 is the Sanitary Inspector of the Midnapore Municipality. He took three samples of ghee from a tin in the petitioner's shop. One sample was sent to the local public analyst, one sample made over to the petitioner and another sample taken from another tin, which was said to be a part of the same consignment, was also sent for analysis. The result was that the Magistrate had three reports before him. The petitioner examined an expert witness who expressed the opinion after reading the reports that the sample taken by the Sanitary Inspector was adulterated and that of the others one was certainly pure and the other probably so. The Magistrate did not consider whether the ghee was pure or adulterated. He held that the reports showed that all the samples failed to comply with certain conditions prescribed by the Local Government under Section 6(1)(iii). These conditions were pub-lished by a notification in the Gazette on 24th July 1930. On the same day similar notifications were published under Section 4 and Section 20. The contention of the petitioner was that in view of the notification under Section 4 he was entitled to rebut the presumption raised therein, and to show that the ghee was not adulterated. He asked the Magistrate to accept the evidence of his expert witness on the point. The Magistrate, however, held that Section 4 had no application.
2. The effect of the presumption under Section 4 was the point for our consideration in Superintendent and Remembrancer of Legal Affairs Bengal v. Kshitish Chandra Benerjee : AIR1939Cal667 . This was an appeal against an acquittal. The article of food in question was mustard oil. The point of law argued was whether the Judge was right in the view which he took with regard to the rebuttal of the presumption. It was assumed by both sides that Section 4 applied to the case and the arguments were made on that supposition. Inasmuch as I thought that this assumption required further consideration I directed that the present rule should be beard by a Division Bench. The question is not free from difficulty and depends upon a consideration of that Section in conjunction with Section 6. It will appear that Section 6 also refers to the constituents of five specific articles of food - milk, butter, ghee, wheat, flour and mustard oil. It has therefore to be considered whether the Local Government has the power under Section 4 to declare the normal constituents of these articles of food and the effect of a repugnancy, if any. Now, there is nothing in the terms of Section 4 itself to suggest that these articles are excluded. The Section provides that the Local Government may declare the normal constituents of any article of food. It further appears that the two Sections are really dealing with different matters. The former is concerned merely with the constituents of different articles of food and the latter with the conditions under which they may be sold. Certain constituents are only mentioned in Section 6 in order to ensure a certain standard of purity in any article put on the market. I have, therefore, reached the (conclusion, though not without some hesitation, that the assumption made in the former case was correct. It is further clear that the presumption under Section 4 only applies to those articles of which the normal constituents have actually been declared. This is apparent from the use of the words 'what deficiency in these constituents' and also from Section 20(1)(a) which includes these words:
Determining what deficiencies in or additions to any article of food the normal constituents of which have been declared under Section 4.
3. One presumption arising is that the article is not genuine, that is to say that it had constituents other than those covered by the declaration. In the case of ghee, with which we are now concerned, the relevant part of the declaration is in these terms: 'Ghee is the pure clarified milk fat of cow or buffalo or cow and buffalo.' The remaining part of the notification has nothing to do with the constituents of ghee and is misconceived and ultra vires. The presumption would accordingly be that the ghee in the sample contained some substance other than the milk fat of cows or buffaloes. Inasmuch as in this particular case the notification is more severe than the conditions laid down in Section 6 the presumption would be of very little help to the prosecution. Under Section 6 ghee may contain curds and the prosecution would have to show that the additional constituents presumed to be present were something other than curds.
4. Whether the presumption can be drawn at all depends upon the rules made under Section 20. Under that Section the Local Government may make rules determining what deficiencies in or additions to any article of food, the normal constituents of which have been declared under Section 4, shall raise the presumption that such article is not genuine or is injurious to health. The essential thing therefore is that the rules should refer to deficiencies in or additions to any article of food, that is to say they must lay down the absence of something or the presence of something: for example, there may be a rule to the effect that a certain percentage of water in any sample should raise the presumption. In dealing with the rules made with regard to ghee I find it almost impossible to say whether they are ultra vires or not. There is no plain reference to any deficiencies in or additions to ghee From its terms the rule suggests that a new rule of evidence is being laid down to the effect that, if certain chemical results are not obtained, there is to be a presumption that the article is not genuine. The presumption in the Act is a rule of evidence made by Section 4 itself. It is not open to the local Government to make a further rule of evidence under Section 20. In the view which we take of this case it is not necessary to decide whether the presumption arises or not. But it seems desirable that the rules should be re-drafted in order that there may be no difficulty in their interpretation.
5. I have already noted that the Magistrate did not come to any finding on the question whether the ghee was adulterated or not. If such a finding had been necessary it would have been impossible to avoid a remand. It is true that the defence witness stated that in his opinion the sample seized by the Sanitary Inspector was adulterated. But it has not been ascertained what exactly he means by that. It is not clear whether in his opinion the sample failed to comply with the terms of the notification under Section 4 or with the conditions laid down under Section 6. There is the further question whether that sample was actually seized by the Sanitary Inspector or whether as suggested by the defence, he dishonestly substituted some inferior substance for it. Both these points would require to be cleared up. In my judgment however the Magistrate was right in the view which he took. The prosecution may prove either that the ghee does not fulfil the conditions laid down in Section 6 or that it does not fulfil such conditions as are prescribed by the Local Government. Although the ghee may be unadulterated, it may still be of poor quality. It appears from the evidence of the expert witness that its quality will be affected both by the food of the cow from whose milk it was made and by the amount of moisture acquired at the time of its preparation. The power conferred on the Local Government to prescribe conditions makes it possible to ensure that only ghee of good quality is placed on the market. The ghee in the present case did not comply with the requirements of the notification made under Section 6. It has therefore to be considered whether that notification can be said to preseribe conditions.
6. In view of the notification under Section 20 which is in similar terms, there can be little doubt that the figures adopted in the formula are the extremes within which, in the opinion of the expert advisers of Government, unadulterated ghee' will be found. They have probably been used in that notification, as I interpret it, to create a rule of evidence. Mr. Roy Chowdhury on behalf of the Crown contended that there is nothing to prevent them from being adopted as a standard of quality as well. I accept that contention. In my opinion, it is intra vires of the Local Government to fix a standard of quality and in so doing to prescribe conditions within the meaning of Section 6. The notification on which the prosecution relied does actually prescribe such conditions. The rule must accordingly be discharged.
7. I agree The provisions of the Act to which reference is necessary in the present case are Rs. 4, 6 and 20, and the Government notifications under those Sections. Section 4 vests in the Government power to declare the normal constituents of any article of food and to determine by rules what deficiency in any of these constituents or what addition of extraneous matters or proportion of water in a sample of any article of food shall raise a rebuttable presumption that the article of food is not genuine or is injurious to health. It would be only reasonable to read the expressions 'normal constituents,' 'deficiency in those constituents,' 'addition of extraneous matters, or proportion of water' in the ordinary dictionary sense of those words. The rules which this Section would seem to contemplate appear to be rules concerned with the presence or absence of solid or liquid substances to be denoted in those rules. It is not easy to understand therefore how in rules framed under this Section chemical reactions such as saponification value and Reichert 'Wollny value in the case of ghee, and saponification and iodine value in the case of mustard oil came to be formulated. The chemical standards set up in the rules are in reality criteria by reference to which an expert could arrive at a conclusion regarding the presence or absence of substances, solid or liquid, and the presumption that the article is not genuine or is injurious to health would or would not arise from such a conclusion. In my judgment it is however not necessary for the purpose of the present case to decide whether the laying down of chemical standards falls properly within the scope of the rules which Section 4 contemplates. In the present case we are not really concerned with Section 4 because the material Section is Section 6 which is in the following terms:
No person shall, directly or indirectly, himself or by any other person on his behalf, sell, expose for sale or manufacture or store for sale, any of the following articles, namely : (a) milk, (b) butter, (c) ghee, (d) wheat flour, (e) mustard oil, and (f) any other article of food which may be notified by the Local Government in this behalf. Unless the following conditions are fulfilled, namely:...
8. Then follow certain conditions in the case of each of Arts, (a) to (e) enumerated above, and in the case of ghee they are thus stated:
(iii) In the case of ghee, it shall contain only substances, other than curds, which are derived exclusively from the milk of cows or of buffaloes and shall fulfil such conditions as may be prescribed by the Local Government.
9. I would observe here that the word 'conditions' is quite obviously very wide. It embraces a multitute of things. It may range over such matters as storing, packing, temperature, standard of purity, physical condition and chemical condition. We find that the Local Government has in fact in exercise of the powers conferred by Section 6 : prescribed by notification conditions which in case of ghee run as follows:
Shall have a butyro-refractometer reading of not lass than 40 and not more than 42.5 at 40'C and in the casa of cow ghee a saponiflcation value of not less than 220 and a Reichert Wollny value of mot less than 24, in case of buffalo ghee a saponification value of not less than 222 and Reichert Wollny value of not less than 30, and in the case of mixed cow and buffalo ghee a saponiflcation value of not less than 222 and Reichert Wollny value of not less than 28.
10. This is perfectly intelligible. In the ease of ghee it is laid down that one of the conditions it shall satisfy is a certain chemical standard. In the case of this article the result therefore is that unless it satisfies that standard 'no person shall directly or indirectly, himself or by any person on his behalf' sell it, expose it for sale or manufacture or store it for sale. Section 6 enacts an absolute prohibition and renders any presumption, arising under Section 4 and the rules |made thereunder that the ghee is not genuine or is injurious to health, entirely superfluous. Suppose the prosecution proved the facts necessary to raise the presumption, and suppose the defence succeeded in rebutting the presumption. The position would nevertheless still be that the bar imposed by Section 6 remained for the simple reason that the ghee did not fulfil the conditions of the chemical test required by that Section read with the rules framed thereunder. The anomaly, in my judgment, does not arise from any necessary conflict or overlapping as between Section 4 and Section 6. In the case of ghee it arises from the manner in which the rules framed under these two Sections are expressed. In the presence of the essential and irrebuttal condition prescribed by the notification under Section 6 referred to above, it was necessary for the Local Government by a notification under Section 4 to make the declaration or rule which reads as follows:
Ghee is the pure clarified milk fat of cow or buffalo or cow and buffalo and has a butyro-refractometer reading of not less than 40 and not more than 42.5 at 40'C; in the case of cow ghee a saponification value of not less than 220 and Reichert Wollny value of not less than 24, in the case of buffalo ghee a saponiflcation value of not less than 222 and Reichert Wollny value of not less than 30, and in the case of mixed cow and buffalo ghee a saponification value of not less than 222 and Reichert Wollny value of not less than 28.
11. The notifications under Section 4, declaring the normal constituents of articles of food and enacting rules for determining what deficiency or addition in question, ought not to lose sight of the conditions laid down in Section 6 and the notifications made under that Section, for to do so might lead to conflict. As the case of ghee shows it has brought about a redundancy. It is only reasonable to suppose that the Legislature intended notifications under one Section to be either independent or supplementary of those under the other Section for the purpose of achieving the objects of the Act. The case of mustard oil would seem to provide an example. Section 6 absolutely prohibits the sale, exposure for sale, manufacture or storage for sale of mustard oil which is not derived exclusively from mustard seed. To determine whether a particular sample of mustard oil is derived from mustard seed one is taken to the notification under Section 4 which runs as follows:
Mustard oil is the fixed oil expresed or extracted from mustard seed and shall have a saponification value of not less than 169 and not more than 175 and an iodine value of not less than 96 and not more than 104.
12. I am assuming for the purposes of this illustration that the notification is not ultra vires of Section 4. If the chemical standard here set up is not satisfied, then under Section 4 there would arise the presumption that the oil was not genuine, that is to say that it was not the fixed oil expressed or extracted from mustard seed. But the presumption would be rebutted by showing that in spite of the oil failing to satisfy the chemical standard set up in the notification it was nevertheless an oil expressed or extracted from mustard seed. That would satisfy the condition laid down in clause (5), Section 6 and would remove the bar imposed, by that Section. Reference has been made to the case in Superintendent and Remembrancer of Legal Affairs Bengal v. Kshitish Chandra Benerjee : AIR1939Cal667 . That case was primarily concerned with the method by which a presumption arising under Section 4 in the case of mustard oil might be rebutted, and I am satisfied that there is nothing in our decision there which is irreconcilable with the conclusions to which we have been led in the matter now under discussion. At the outset I mentioned Section 20 as one of the Sections to which reference was called for. That is a Section which vests the Local Government with a general power to make rules. The words of that Section which are relevant to the present case are as follows:
The Local Government may, subject to the condition of previous publication, make rules to carry out the purposes of this Act.
In particular, and without prejudice to the generality of the foregoing power, the Local Government may makes rules,
(a) determining what deficiencies in or additions to any article of food, the normal constituents of which have been declared under Section 4, shall raise the presumption that such article is not genuine or is injurious to health.
13. Reference is made in Clause (a) to the specific power already conferred by Section 4 to declare the normal constituents of any article of food. There is a notification under Section 20 the terms of which in the case of ghee and mustard oil I would set out:
Ghee - (a) Where in a sample of ghee the butyro-refractometer reading at 40'C is less than 40 or more than 42.5, it shall be presumed, until the contrary is proved for the purposes of the Act, that the ghee is not genuine by reason of the addition thereto of extraneous fat or oil.
(b) Where in a sample of cow's ghee the Reichert Wollny value is less than 24 or the saponification value is less than 220, it shall be presumed, until the contrary is proved for the purposes of the Act, that the ghee is not genuine by reason of the addition thereto of extraneous fat or oil.
(c) Where in a sample of buffalo's ghee the Reichert Wollny value is less than 30 or the saponification value is less than 222, it shall be presumed until the contrary is proved for the purposes of the Act, that the ghee is not genuine by reason of the addition thereto of extraneous fat or oil.
(d) Where in a sample of mixed cow and buffalo ghee the Reichert Wollny value is less than 28 and the saponifieatioa value is less than 222, it shall be presumed, until the contrary is proved for the purposes of the Act, that the ghee is not genuine by reason of the addition thereto of extraneous fat or oil.
Mustard oil - (a) Where in a sample of mustard oil the saponiflcation value is less than 169 or more than 175, it shall be presumed, until the contrary is proved for the purposes of the Act, that the mustard oil is not genuine by reason of the addition thereto of extraneous oil.
(b) Where in a sample of mustard oil the iodine value is less than 96 or more than 104, it shall be presumed, until the contrary is proved for the purposes of the Act, that the mustard oil is not genuine by reason of the addition thereto of extraneous oil.
14. This language would seem to bring into something like relief what I have earlier stated about the chemical standards being mere criteria for determining the presence or absence of certain physical substances. It seems to me that the presumption arises from the presence or absence of those substances and that it arises not under any notification but under Section 4. But as I have already stated, it is not necessary for the purposes of this case to decide whether the setting up of a standard in terms of chemical reactions is properly within the scope of Section 4, and I would now add, of Section 20(1)(a), or whether the chemical criteria are outside those Sections and are really no more than postulates regarding a mode of evidence and the sufficiency thereof.