1. The petitioner has been convicted under Section 7 of the Bengal Food Adulteration Act VI of 1919. He has obtained this Rule upon grounds Nos. 2, 5 and 6 of the petition.
Ground No 2.--'For that the leave in writing from the local authorities under Section 15 of the Act not having been proved in the case, the proceedings were without jurisdiction.' The Magistrate says in his explanation that there was a sanction granted by the Chairman of the District Board which, through oversight, was not filed and as the prosecution has now filed it he has sent it up to this Court. When cognizance was taken by the Court of the offence it was expressly stated by the complainant that there was such a sanction.
Ground No. 5.--'For that the learned Magistrate has acted with material irregularity in acting upon the report of the Director of Public Health without the same being proved as the identity of the article found during investigation being established.' From the Magistrate's explanation as well as from the records it is clear that the petitioner did not object to the report going in evidence, and it also appears that the identity of the article in respect of which the report was made was taken by the defence as an admitted fact.
These two grounds, therefore, fail.
Ground No. 6--''For that the prosecution having admitted that the mill in question manufactured oils for purposes other than for human consumption the trial Magistrate has erred in assuming that the sample of the mixture of the seed was meant for human consumption.' Here, there is a conflict. On the one hand there does not appear that any such admission was ever made on behalf of the prosecution. On the other hand there is no proof that the mixed oil which the petitioner sells was intended as an article of food for human consumption. The course of proceeding may to some extent suggest that the petitioner took his stand on the defence that the mixed oil was intended for human consumption, that admixture of surguja was necessary to squeeze out the oil, and that by such admixture the oil as an article of food is not injuriously affected; but there is no positive admission of this position anywhere upon the record. Nor would it be right to hold that the prosecution was relieved of the necessity of proving this element because--to quote the words of the explanation--'The accused did not take the plea nor proved that he manufactures or sells oil other than for human consumption.'' It was for the prosecution to prove this fact.
2. For a conviction under Section 7 of the Act, it has to be proved that sarguja (which is admittedly contained in the mixed oil) was found in the place. This has been proved. The intention to use the sarguja for mixing it with the mustard oil is also amply established, even quite apart from the presumption contained in Section 7 (2). Unless, however, the mixed oil is proved to have been intended as an article of food for human consumption the Act itself will not come into play.
3. In view of the fact that there was no positive case set up by the petitioner that the mixed oil was not for consumption as an article of food, and in view also of the course of proceedings which suggests that the prosecution may possibly have been misled into omitting to prove what they otherwise could, I would, while setting aside the present conviction and sentence, direct that the case be retried. The fine, if paid, should be refunded.