1. This is an appeal by the Local Government under Section 417, Criminal P.C., against an order of acquittal passed by the learned Sessions Judge of Jalpaiguri. The accused was convicted by a Magistrate of an offence punishable under Section 6 read with Section 21, Bengal Food Adulteration Act. The appellant has a shop in a bazar named Barnes in the District of Jalpaiguri. On 21st July 1938 the Assistant Health Officer purchased 12 ounces of mustard oil for the purpose of chemical analysis. In accordance with the procedure laid down under the rules the oil was placed in three bottles which were sealed, one of the bottles being made over to the accused. One bottle was sent to the analyst employed by the District Board. The accused's bottle was sent at his request to the Government Test House at Alipur to be analyzed. As a result of the analysis made by the analyst of the District Board, which showed that the oil was adulterated, the accused was put on his trial and convicted. The point of law urged on behalf of the Crown in the appeal is concerned with the interpretation of Section 4 and Section 20 of the Act. Section 4 lays down that in certain circumstances a presumption is to be drawn that the article in question is not genuine. There can be no doubt that, if the certificate given by the District Board analyst is accepted, in view of the rules framed by the Local Government under Section 20 (2)(a) the mustard oil was not genuine. It is plain from his judgment that the learned Sessions Judge appreciated this. But according to the submission of the Crown he has stultified this provision of the law by the way in which he dealt with the question whether the presumption had been rebutted.
2. The learned Advocate-General put forward two points. His first contention was that the presumption could only be rebutted by following the oil from the mustard seeds throughout the proceed of manufacture right up to its arrival in the shop of the accused and demonstrating that no deleterious substance had been introduced. In the second place he argued as an alter, native that the only other way in which the presumption could be rebutted is by the accused proving that there was no adulterant, common or rare, of any sort in the oil. In support of the first proposition he relied on a series of English cases which were concerned with the interpretation of Section 6, Sale of Food and Drugs Act of 1875. Under the provisions of that Section no person shall sell to the prejudice of the purchaser any article of food which is not of the nature, substance and quality of the article demanded by the purchaser under a penalty. Section 4 makes provision for the raising of a presumption in circumstances similar to those in the Bengal Act.
3. The first of these decisions is that in Hunt v. Richardson (1916) 2 K.B. 446 which was heard by a Court of five Judges in the Kings Bench Division. They differed by 3 to 2. They were largely concerned with the meaning to be attached to the provisions of Section 6 which have no application to the Bengal Act. The only decision which goes so far as the contention of the learned Advocate-General is that in (1939) 160 1 T 5072 decided last April in which the accused was not represented. In my opinion the weight of the decisions is not in favour of this contention. Then again all these cases were concerned with milk-which is quite a different commodity from mustard oil. It is produced by an animal and sold within a few hours of its production. There can be no difficulty in tracing its history in any particular consignment from the animal to the distributor. If such a rule were to be applied to mustard oil, the burden cast upon the accused would be one which it would be quite impossible for him to discharge.
4. The question really depends upon the terms of Section 4 and Section 6. The presumption raised under Section 4 is that the article is not genuine. Section 6 lays down that mustard oil must be derived exclusively from mustard seeds. We cannot find any warrant for the [proposition that the accused person can be tied down to any particular method for establishing his defence. On the second point the judgment of the learned Judge was criticized with regard to this passage:
The only conclusion I can come to on the evidence and the two reports before me is that the report submitted by the defence comes nearer to showing that the oil is pure mustard oil than the report of the prosecution to showing that it is adulterated. In my opinion when the common, adulterants are proved to be absent the prosecution should show what the actual adulterant is because, the presumption arising under the rules is for all practical purpose rebutted.
5. The contention of the learned Advocate. General was that this is to render the provisions of Section 4 nugatory. He contended) that the true position is exactly the opposite and that the presumption is not rebutted unless the accused himself proves that, no adulterant of any sort is present. In our judgment neither of these views is correct. If the learned Judge meant that when the accused shows that none of the common adulterants was present, the Court must hold that the presumption has been rebutted. Then in our opinion he went too far. In the present case unless he was prepared to hold himself on the evidence that, the presumption was fully rebutted, he should uphold the conviction. On the other hand the contention of the learned Advocate-General goes too far in the other direction as it ignores the precise point which the accused has to prove. I will repeat the relevant provisions of that Act. Under Section 4 there is a presumption that the article is not genuine. Under Section 6 genuine mustard oil must be derived from mustard seeds. The presumption is rebutted if the accused calls evidence which satisfies the Court that the article in question is derived exclusively from mustard seeds.
6. Turning to the facts of the present case the first point for determination is whether the presumption is to be raised at all. Under Section 14(2) of the Act the certificate of the analyst is made evidence without formal proof, but there is no presumption that it is accurate. In the present case we have conflicting reports by two experts whose-integrity has not been and cannot be called in question. It is thus abundantly plain, that errors are possible and a slight variation from the standard might justify the Court in refusing to raise a presumption as all. In the present case the District Board analyst found nothing wrong with the iodine value. Both the analysts found that the saponification value was excessive. In these circumstances we are of opinion that the presumption should be raised. It remains to be considered whether it has been rebutted. It has been proved that none of the common adulterants was present. This has obviously taken the accused a very long way towards his goal. The Chemical Assistant in the Government Test House who made the analysis is thoroughly competent. He formed the opinion that the mustard oil was genuine. He further explained that different mustard seeds give different saponification value owing to the peculiar properties of the seeds. This is quite enough to account for what was found in the present case. We accept that opinion and in view of that opinion it must be held that the presumption has been rebutted. The appeal is dismissed.
7. I agree.