Vyas, J.:— This is an appeal by the State of Bombay from an order of acquittal passed by the learned Sessions Judge, Poona, whereby the learned Judge has acquitted Bharat Shankar Tapkir, original accused, of an offence under S. 4(1)(c), Bombay Prevention of Adulteration Act.

2. The facts of the case which gave rise to the prosecution of the accused may now briefly be stated. Raghunath Jagannath Joglekar, who is the Food Inspector, was on duty on 24th July, 1951. At about 8-30 in the morning on that date he saw the accused going along on a bicycle. On the handle of the bicycle there was a charwi whose capacity was three seers. In that charwi there was milk and the quantity of milk was about one seer.

3. On the same bicycle there was also another pot. There was milk therein also, and the quantity of that milk was about a seer and a half. Then on the carrier of the bicycle there was a brass pot with a capacity of seven seers. That pot was brimful with milk. The Food Inspector examined the milk from the charwi. When he questioned the accused in the matter, the accused said that it was mixed milk of cow and buffalo. The Food Inspector suspected adulteration. So he applied lactometer test.

4. Then he told the accused that he wanted to purchase milk, and the accused quoted the rate of a rupee for a seer and a half. There were three empty bottles which were shown to the accused, and into each one of these bottles the accused put six ounces of milk. Then the bottles were sealed. One sealed bottle was given over to the accused and the other was sent to the Public Analyst for examination. The result of the examination by the Public Analyst was that the milk had 32.2 per cent water content, 4.1 per cent fat content and 6.1 per cent solids other than milk fat.

5. Upon these facts the accused was prosecuted. He was convicted by the Special Municipal Magistrate F.C, Poona; but on appeal he was acquitted by the learned Sessions Judge, Poona. It is against that order of acquittal that the present appeal is filed by the State of Bombay.

6. During the course of his judgment the learned Sessions Judge held that the accused had sold to the Food Inspector milk which was not of the nature, substance and quality demanded by the Food Inspector. But he came to the conclusion that no prejudice was caused to the complainant Food Inspector by reason of the sale of milk to him by the accused. On the basis of that finding he ordered the acquittal of the accused. While holding that there was no prejudice to the Food Inspector by reason of the sale of milk to him by the accused, the learned Sessions Judge said this:

“He (meaning thereby the Food Inspector) did not believe the milk to be mixture of cow and buffalo. Knowing that, he purchased that milk, the purpose of the purchase was to find out the constituents of the milk and not for his own consumption. I, therefore, fail to see how it could be said that the Food Inspector purchased this milk to his prejudice, when he purchased it after having been told that it was a mixture of cow and buffalo milk and having refused to accept that statement, particularly after applying the lactometer.”

7. I am not in agreement with the view of the learned Sessions Judge that the sale of the milk to the Food Inspector by the accused was not to the prejudice of the Food Inspector. It is not disputed in this case that the milk which was sold to the Food Inspector was really not the mixed milk of cow and buffalo. It was adulterated buffalo's milk. The learned Sessions Judge was not right in holding that, simply because the Food Inspector had already suspected that the milk was not mixed milk of cow and buffalo, there was no prejudice caused to him.

8. The expression “to the prejudice of the purchaser” in S. 4, sub-s. (1), Cl. (a), of the Act, has been construed by this Court in — ‘State v. Amratlal Bhogilal’, AIR 1954 Bom 216 (A) to mean prejudice to the generality of purchasers and not prejudice to the actual purchaser in a particular case. A particular person in a given case may not be prejudiced by the purchase, but if an ordinary person who purchased an article of food was likely to be prejudiced by the purchase, there would be committed an offence under S. 4(1)(a) of the Act. It is stated in Halsbury's Laws of England, 2nd Edn., Vol. 15, para. 244:

“……The prejudice, however, is not confined to pecuniary prejudice, nor to prejudice arising from the consumption of unwholesome food, nor to prejudice or damage to the actual purchaser in the particular case. But there is prejudice whenever there is a sale of an article in such a state that an ordinary unskilled person would have been prejudiced if he had received it in response to his demand for an article of that denomination, although for some reason, peculiar to himself, the actual purchaser is not prejudiced. It is no defence to a prosecution to allege that the purchaser, having bought only for analysis, was not prejudiced by the sale.”

9. In the case of — ‘Pearks, Gunston and Tee Limited v. Ward: Hennen v. Southern Counties Dairies Company’, (1902) 2 KB 1 (B), it was held that a sale might be to the prejudice of the purchaser, although the purchaser had special knowledge, not derived from information given by the seller, that the article sold was not of the nature, substance, and quality demanded by him, and that the test was whether the sale would have been to the prejudice of a purchaser who had not that special knowledge. In these circumstances, we are unable to agree with the view of the learned Sessions Judge that the sale of milk in this case by the accused to the Food Inspector was not to the prejudice of the Food Inspector.

10. We must, however, uphold the order of acquittal, because in our view R. 6(A) of the Rules framed by the Government of Bombay in exercise of the powers conferred upon them under Ss. 19 and 19A, Bombay Prevention of Adulteration Act, 1925, is ‘ultra vires’ of the Act, being inconsistent with S. 19(1)(c) of the Act. Section 19(1)(c) says that the Government of Bombay may make rules, not inconsistent with the provisions of this Act, for

“determining what deficiency in any of the normal constituents of any article of food or what addition of extraneous matter shall raise a presumption, until the contrary is proved, that such food is injurious to health within the meaning of section 3 etc.”

11. The words “shall raise a presumption until the contrary is proved” show that the presumption contemplated by S. 19(1)(c) of the Act is not an absolute presumption, but a conditional presumption, the condition being that the accused must be allowed an opportunity of showing that the article of food concerned was not injurious to health within the meaning of S. 3, or was of the nature, substance or quality it purported to be within the meaning of S. 4.

12. Now, if we turn to R. 6(A) of the rules framed by the Government of Bombay under Ss. 19 and 19A of the Act, we find that the words used there are:

“The following articles of food when constituted as shown hereunder shall be deemed to be not of the nature, substance or quality which they purport to be.”

13. The words “shall be deemed to be” show that the rule speaks of an absolute presumption, as distinguished from a conditional presumption, to be drawn regarding the nature, substance and quality of milk from a deficiency in the normal constituents of milk or from an addition of an extraneous matter to those constituents. As S. 19(1)(c) of the Act speaks of the power of Government to make rules regarding conditional presumption to be drawn in respect of the nature, substance, etc. of an article of food from a deficiency in or an addition of an extraneous matter to the normal constituents of the said article, and as R. 6(A) which is made under S. 19 of the Act speaks of an absolute presumption to be drawn in the said connection, it is clear that the rule is inconsistent with S. 19(1)(c) of the Act.

14. It is argued for the State of Bombay that the word “deemed” is used in various senses. It is contended that sometimes the word “deemed” means “generally regarded”, that at other times it signifies “taken prima facie to be”, and that at yet other times it means “taken conclusively to be”. For this contention reliance is put on Iyer's Law Lexicon, page 302. The contention must fail the word in R. 6A is not “deemed”. The words are “shall be deemed to be”, and we think it is absolutely clear that these words speak of an absolute presumption.

15. In this context it would not be out of place to refer to R. 7, and in R. 7 we find the words which are to be found in S. 19(1)(c) of the Act, namely, the words “shall be deemed, until the contrary is proved.” If the contention that the words “shall be deemed to be” do not give rise to a conclusive presumption, but give rise to a conditional presumption, has force, we do not see why we find the words “shall be deemed, until the contrary is proved” in R. 7. In that case in R. 7 also the words “shall be deemed to be” would have been used.

16. It is then argued that R. 6(A) is not a rule which has reference to S. 19(1)(c) of the Act, but that it refers to S. 19(1)(e) of the Act. We see no force in this contention either. The caption of R. 6 is:

“Deficiency in normal constituents and addition of extraneous matter.”

17. Now, if we turn to S. 19(1)(c) we find that Cl. (c) begins with the words:

“determining what deficiency in any of the normal constituents of any article of food or what addition of extraneous matter shall raise a presumption, until the contrary is proved, etc.”

18. Putting the language of S. 19(1)(c) of the Act and the language of the caption of R. 6 together, there is no doubt that R. 6 has a reference to S. 19(1)(c) of the Act. The subject-matter of S. 19(1)(e) of the Act has a reference, not to R. 6 of the Rules, but to R. 8(B) of the Rules. Therefore, this contention also which is pressed before us on behalf of the State of Bombay must fail.

19. As we are of the view, for the reasons stated above, that R. 6(A) of the Rules, being inconsistent with S. 19(1)(c) of the Act, is ‘ultra vires’ of the Act, the acquittal must be upheld and the appeal must fail. The appeal is dismissed.

Bavdekar, J.:—

20. In my view, the words “to the prejudice of the purchaser” in S. 4(1)(a) denote “to the prejudice of the purchaser who actually purchases the article which is not of the nature, substance or quality demanded by the purchaser.” But in this case, in spite of the fact that the Inspector wanted the milk for analysis, that condition is satisfied. The reason is that the intention of S. 4, as is evidenced by the words “which is not of the nature, substance or quality demanded by or on behalf of the purchaser” was that the purchaser must get the article which he demands, and it is not a matter for the vendor to inquire into the question as to why the purchaser wanted the article and defend a charge made against him for selling an adulterated article by pointing out that no actual loss was caused to the purchaser.

21. The words “to the prejudice of the purchaser” must necessarily be given a meaning, but they are put in order that persons who, e.g have sold milk which has been fortified by vitamins should not be punished in case the purchaser, without telling the vendor that he does not want milk fortified with vitamins, asks for pure milk and gets pure milk to which vitamins are added. In such a case it is obvious that the sale will not be to the prejudice of the purchaser; but apart from such cases, if the purchaser did not get milk which he demanded, there is prejudice within the meaning of that term as used in S. 4 of the Act.

22. It is true that in this case the accused said that the milk was milk of cow and buffalo mixed, and in case it had been shown that it was milk of cow and buffalo mixed, no offence could have been committed. But the analysis showed in this case that what the purchaser got was buffalo's milk, which milk was deficient in certain normal constituents. If the rule upon which the prosecution relied was not ‘ultra vires’, the accused would have been guilty. But for the reasons which have been stated by my learned brother the rule was ‘ultra vires’ of the power conferred upon the Government of Bombay by S. 19 of the Act. The appeal must, therefore, be dismissed.

A/K.S.B

Appeal dismissed.