K.C. Chunder, J.
1. This Rule was issued at the instance of the District Health Officer) Jalpaiguri, against an order of acquittal and an order under Section 13, Bengal Food Adulteration Act, passed by the Magistrate of the District.
2. The facts are not seriously in dispute. The Sanitary Inspector seized the stock of mustard oil which was found stocked by a firm of merchants at Banerhat in that District. He took samples from different portions and in analysis it has been found that the whole of the oil was highly adulterated. He had after seizure offered the price. 'It must also be pointed out that in this case prosecution was sanctioned not merely for selling mustard oil but for all the offences connected with mustard in Section 6, Bengal Food Adulteration Act. The Magistrate found that the mustard oil was highly adulterated. He considered that because at a considerable distance the Firm had a factory for soap-making the storing might be for such purpose though the storing was not at the place of soap making and no proof at all was given on behalf of the Firm that storing was actually for any such purpose. The Magistrate therefore considered that as it was a compulsory sale to the Sanitary Inspector there can be no prosecution under Section 6 of the Act. He then ordered under Section 13 of the Act that 'the seized oil shall be made unfit for human consumption and sold by the Chairman of the District Board and the sale proceeds may be made over to the accused Firm provided that if after the oil has been made unfit for human consumption the accused firm be desirous of using the said oil in their soap factory and satisfies the Chairman, District Board that the oil will be used only in soap making the oil shall be returned to the accused firm.' In this Rule both the orders of acquittal and the order under Section 13 are called in question.
3. We will, therefore, proceed to take them up one by one. As far as the acquittal is concerned it may be pointed out that the case on which the learned Magistrate has relied is not applicable to the present case, but at the same time it must be said that the position is not really very satisfactory as far as the case law is concerned. I shall proceed briefly to refer to the cases.
4. In a decision reported in -- 'Akhoy Kumar v. Corporation of Calcutta' : AIR1928Cal320 , a Bench of this Court consisting of Chotzner and Lort-Williams JJ. considered that there was no sale and they were of the opinion that a compulsory sale made under the provision of Section 424, Clause (1), cannot make any person amenable to the punishment provided for under Section 488, Calcutta Municipal Act. With the actual decision there can be no dispute. In that case no question of sale at all arose. Therefore there could be no conviction lor sale of the article. The Food Inspector seized a consignment of ghee at the railway station. The consignment was not sold to him nor was any sample taken out of it, so that no question of sale as mentioned in Section 424, Clause (1), Calcutta Municipal Act, arose. He removed the thing seized to the Municipal office and there he offered compensation in the shape of the price of the article to the person whose thing had been taken away by him either by force or under legal authority I need not decide. In any case, if any one takes away property without consent of the owner find subsequently pays him the compensation of the same it does not come within either the dictionary meaning or the legal meaning of sale which is based upon volition. Therefore all that was said in that case was simply 'obiter dicta'. No question under Section 424S Calcutta Municipal Act, really arose. Then again it is to be noted that the exact wording even in the 'obiter dicta' was not that every sale to a person who may hold the office of the Sanitary Inspector was either a compulsory sale or not a sale. A 'compulsory sale' made under the provision of Section 424, Clause (1), does not according to the Court bring into operation Section 488 as such a compulsory sale is not a sale. Obviously, their Lordships were of the opinion that a sale must be a voluntary transfer of property in goods for price received. There may be also a voluntary transfer of goods to a Sanitary Inspector if it is not known that he is a Sanitary Inspector, or if he does not claim to exercise his powers of compulsory acquisition under Section 424, Clause (1). Section 424, Calcutta Municipal Act, corresponding to Section 10, Bengal Food Adulteration Act, compels a man to sell to the officer concerned if he exercises his statutory powers. If no question arises of exercising of any such statutory powers I fail to see how the sale can be called a compulsory sale or how such a sale cannot be held to be a sale prohibited by punishment under Section 488, Calcutta Municipal Act or under Section 21, Bengal Food Adulteration Act. This point certainly has been throughout overlooked in all the decisions I am going to refer.
5. The obiter dicta in the case of Akhoy Kumar Ghose was dissented from and not considered to be binding by a Bench of this Court consisting of Sir Charu Chander Ghose, Acting Chief Justice and Mallik J. in the case of --'Davis Hewlet & Co. v Emperor' : AIR1933Cal598 . Their Lordships said that they did not consider themselves in that particular case bound by this authority and they were not prepared to follow the same. They gave no reasons whatsoever. Therefore as far as Divisional Benches are concerned the matter stands like this. There is a Single Judqe decision by Lodge J. in -- 'Narendra Nath Saha v. Emperor'. 51 Cal WN 260 (C). It appears that Lodge T. did not go into the question fully in that case but merely held himself bound by the Divisional Benrh decision in Akhoy Kumar Ghose's case. He did not notice the other case at all. Obviously the dissenting decision was not placed beforehim. Then again he did not consider whether all cases of sales voluntary or compulsory were taken out of the Act altogether simply because a person had the misfortune to hold an official position like the Sanitary Inspector. One can quite understand compulsory acquisition by exercise of statutory authority from being held not to be a sale at all but if without any such compulsion there has been a transfer of property in goods for price it does not appear that there is any reason why it should be taken out of the Act. In any case Lodge J. was at pains to point out that there might have been a conviction for storing for sale but in that case there was the difficulty that the sanction only related to actual sales and not to storing. Under Section 15, Bengal Food Adulteration Act, sanction has go to be taken of the higher authority and it is clear law that there can be no conviction for any offence which is not covered by the sanction. In the case before Lodge J. he pointed out that as there was no sanction for prosecution for storing for sale the conviction could not be upheld on that ground showing that had I here been any such sanction then even the authority of Akshoy Ghosh's case would not have stood in the way of the prosecution. In case of storng there is no question of actual sale and, therefore, there is no question of compulsory acquisition vitiating any sale. The gist of the offence is in the storing itself. The purpose of the storing is that it is for future sale. Storing is storing whether the article is sold or not sold to the Sanitary Inspector. In the present case as I have already pointed out that the sanction was general covering all the offences under Section 6. Therefore the Magistrate erred in law in not considering the case of storing for sale.
6. The acquittal must, therefore, be set aside and the case sent back to the Magistrate to consider the case of storing for sale which is covered by the sanction. In this connection it must be pointed out to him that there is a statutory provision under Section 6, Clause (4), i.e., a presumption, that if the articles mentioned are found in the possession of a person who is in the habit of manufacturing or storing like articles for sale then he is to be presumed to have manufactured or stored for sale such articles. It may be further pointed out that in this case the prosecution gave evidence that the accused firm did store for sale in their ordinary business such mustard oil. This proof given by the prosecution was not challenged by the accused, who in his statement under Section 342, Criminal P. C. held himself out as being a firm which stored mustard oil for sale. Therefore prima facie the presumption arises. The Magistrate will note this. When there is a presumption made by the Statute it is immaterial whether the accused might or might not have been able to do something, actual proof must be given that the accused did not store it for sale but have stored it for the purpose of soap making business. The presumption means that the duty to rebut what the statute considers should be taken as established by the Courts is on the accused himself. It is for him definitely to show that it is not so. I am drawing the Magistrate's attention to this because, --as I have pointed out-- of some observations made by him in the judgment to which I have referred to previously in connection with the soap business of the accused.
7. I now come to the question of disposal of the mustard oil actually found by the Magistrate to be adulterated under Section 13 of the Act.As the order of acquittal is set aside the matter must be reconsidered by him but in re-considering the matter the Magistrate will have toconsider that the law does not authorise the Magistrate to order destruction or other disposal of seized adulterated article except at the cost of the person in possession of the same at thetime of seizure. This is clear from the law enunciated in the section itself. In the present case no such order for costs was provided for and the Magistrate's order amounted to thisthat if after all the costs had been incurred by the authorities, the Firm wanted to have the which has been rendered unfit at some cost tor human consumption, then without paying anything for the cost incurred by the municipal authorities, the accused firm was to be made a present of the altered article. Such is not the law. I am aware in this connection that a Divisional Bench of this Court has held under 3. 13 of the Act that the only proper order is the order for forfeiture of the oil to the local authority in order that it may be destroyed by that authority at the cost of the person in whose possession it was at the time of seizure. This was decided by K. C. Das Gupta and Sarkar JJ. In -- 'Cri. Ref. Nos. 43 and 44 of 1951 (Cal) (D)'. I am not sure that the decision might not require reconsideration in a suitable case be-cause it obviously overlooks the words 'or otherwise disposed of'. In the section they appear after the word 'destroyed'. The effect of the decision is to delete, as it were these words in the statute itself. Therefore it must not be taken that I am expressing any concurrence with the decision given. In particular cases destruction may be the only proper order but other cases there is authority for orderingdisposal in some other way. At least such authority appears to be given by the legislatureand it will be for the Courts to consider whether what has been given by the legislature can be taken away by decision of the Divisional Benchof this Court.
8. This Rule is accordingly made absolute and the order under Section 13 of the Act is set aside and the case is remanded to the Magistrate for proceeding further in the light of this judgment.