1. This is a Reference by the District and Sessions Judge of Midnapore under Section 438, Criminal P.C., concerning a conviction of one Atul Chandra Pal under Section 21 read with Section 6(i)(e), Bengal Food Adulteration Act 6 of 1919(B.C.). The accused was sentenced to pay a fine of Rs. 100 for selling and exposing for sale adulterated mustard oil. There seems to be some doubt as to what actually occurred at the time when the Sanitary Inspector, employed by the Midnapore District Board, visited the shop belonging to Pal in company with the Circle Officer, Nagendra Nath Majumdar. It is to be regretted that the learned Magistrate who tried the case did not record in a systematic way the evidence of the two or three witnesses who were called before him. He recorded their evidence in indirect speech which makes it somewhat difficult to ascertain what the sequence of events in the shop really was. But the learned Magistrate has stated in his judgment:
The salient facts of this case are admitted. The accused Atul Chandra Pal has got a shop at Fatesingpur, P.S. Garbetta where he stores for sale flour, ghee, mustard oil, kerosine oil, salt, spices, etc. On 15th April 1932 the Sanitary Inspector of the Midnapore District Board visited the shop along with witnesses including Babu Nagendra Nath Majumdar, Sub-Deputy Collector and Circle Officer at Garbetta. In presence of these witnesses the Sanitary Inspector purchased from the agent of the accused, a man named Ambica De, some quantity of oil which the Sanitary Inspector purchased as mustard oil but which the seller insisted on describing as ''jalani tel' (fuel oil), (vide sale receipt Ex. 1 in the case).
2. The oil which the Sanitary Inspector, in fact, took was subsequently found, on analysis by the Public Analyst to the Government of Bengal, to be a sample of adulterated mustard oil. In his certificate the Public Analyst says: 'It is mustard oil in which linseed oil is present' and he describes it as 'adulterated mustard oil.' The case sot up for the defence seems to have been that the oil which was taken by the Sanitary Inspector was compounded of a number of different oils including mustard oil and that a notice was displayed in the shop of the accused to that effect and that the tin cannisters containing this oil were marked in letters engraven with acid 'jalani tel'. It was further said that the article in these cannisters was not intended to be sold as an article of food at all The learned Sessions Judge, in referring the matter to this Court, has suggested that the conviction was wrong in law, because, according to him, there is nothing in the Bengal Food Adulteration Act of 1919 to prevent a shop-keeper from selling or exposing for sale or storing for sale an article which happens to have as one of its ingredients a certain amount of mustard oil, provided always the composite article is not sold or intended to be sold as food for human beings. It seems to me however that in this particular case the learned Sessions Judge has somewhat misread the facts as they are set forth in the judgment of the learned Magistrate who tried the case; though the learned Sessions Judge himself does summaries those facts in this way:
The Sanitary Inspector of the District Board, Midnapore, went to the shop on 16th April 1932 and demanded mustard oil from the shopman. The latter said that he did not sell oil in the name of mustard oil and that the oil stocked was described in the books as jalani tel. The Inspector then demanded and got a sample, which on analysis was found to be adulterated mustard oil. The servant of the shop states that the oil is never used as a food, and that the words 'jalani tel' are inscribed in acid on the tin cannisters containing this oil. The shop also contained mustard oil for human consumption. He added that if a customer demanded cheaper oil it was not sold unless he stated the use for which it was required. He states also that the house-holders use ordinary mustard oil for fuel for their oil lamps.
3. Upon that statement of facts the learned Sessions Judge said:
The Magistrate holds the view that Section 6 of the Act, as interpreted in the case cited, that is to say the case of Rakhal Chandra v. Purna Chandra : AIR1930Cal273 , lays down that in no circumstances can anything containing mustard oil be sold other than pure mustard oil.
4. Then he proceeds to discuss the case which was cited and on which he bases his reference to this Court. But what the learned Sessions Judge has overlooked, I think, is this: that in this particular case it was not a question of the defendant, having or storing for sale in his shop some article which as one of its ingredients, contained mustard oil. The report of the Analyst seems to me to show that in this case the article was mainly mustard oil with a slight admixture of linseed oil. In that view of the matter, it seems quite clear that the accused was exposing for sale or storing for sale mustard oil which was not up to the standard required by the proviso in Sub-clause 5, Section 6(1), which says,
in the case of mustard oil, it shall be derived exclusively from mustard seed.
5. Reading that proviso with the main part of the section, the effect is that 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, mustard oil unless it shall be derived exclusively from mustard seed. Now, it has been argued before me that there can be no offence under the Act of 1919 unless the article in question is sold, exposed for sale or stored for sale for human consumption and not otherwise. The case of Rakhal Chandra Dutt v. Purna Chandra Ghosh : AIR1930Cal273 as also the unreported decision of M.C. Ghose, J., to which I have been referred seem to emphasise the fact that nowhere in this particular Act is there any qualification of that description; it is nowhere made an essential part of the offence that what is don should be done with a view to or for the purpose of human consumption of the oil. It is quite true, as Mr. Ganguly has said, that the articles enumerated in Section 6(1) are articles of food; and no doubt the policy of the Act is to prevent either the sale or the exposing for sale or the keeping or storing for sale of articles of food unless they are up to a certain standard of purity. But it cannot rightly be held in my opinion that it is a sufficient defence for the accused merely to say that it was never intended by him that the things should be used for human consumption. It is quite clear that the mere placing of a label on a cannister containing some article, if in fact it can be used as an article of food, will not help him in escaping a conviction. It seems to me that in the present case it is not necessary to go into the question which is the real question raised in the reference, namely as to whether it will be an offence merely to expose for sale or even to sell an article which, amongst other things, contains mustard oil. It is quite certain from the report of the Public Analyst to the Government of Bengal that the bulk of the commodity which was taken by the Sanitary Inspector was in fact mustard oil. I think the matter is concluded by the findings of fact arrived at by the learned Magistrate and that no fresh question of principle really arises. On the facts of this case, it does appear that in this shop there was stored for sale mustard oil which did not conform to the standard required by the section. That being so, this reference is not accepted and the conviction of and the sentence passed on the accused Atul Chandra Pal by the learned Magistrate of Midnapore, Mr. S.K. Majumdar, are upheld.