Chauth Mull v. Emperor Opposite Party.

1. The petitioner has been convicted by the Honorary Magistrate of Patna under Section 251 of the Bengal Municipal Act (Act 3 of 1884). The conviction has been affirmed by the Additional District Magistrate in appeal.

2. On 23rd August, 1917 the Medical Registrar of Patna Municipality (P.W 1) went to the shop of the accused and “wanted to purchase some good ghee for food purposes.” The petitioner brought out some canisters of ghee and offered the ghee wanted by the Medical Registrar. The Registrar took some ghee and smelt it and found it had and he told the petitioner that it was “unfit for human consumption” and put the ghee in 3 phials in the presence of the petitioner and some witnesses and sealed them up. Two phials of the ghee were made over to the Health Officer of the Municipality, who was also present at the time. The Health Officer sent the phials to the Government Chemical Examiner at Gulzarbagh in Patna City. The Chemical Examiner's report was received by the Municipality. It bears the date 29th August, 1917. The report stated as to the ghee sent to him, purporting to belong to Bindh Raj Sultan Mull of ??? that it was “adulterated and unfit for human consumption.” Upon the receipt of this report sanction of the Municipality was obtained on 2nd September, 1917 under Section 355 of the Municipal Act, for the prosecution of the petitioner under Section 251 of the Act. Thereupon the Registrar of the Municipality lodged a formal complaint in the Court of the Honorary Magistrate on 7th September, 1917, enclosing with the petition the report from the Chemical Examiner, the bottles of the sample ghee and the receipt given by the accused and also the sanction given by the Chairman of the Municipality.

3. On behalf of the prosecution the Registrar was examined as a witness (P.W 1). He stated in his evidence that he asked the petitioner to sell to him good ghee for food purposes and that ghee was offered to him for sale and he took some samples therefrom and made over to the Health Officer who was present there. Upon this point he says:

“I made over the two phials to the Health Officer. Ex. 1 is the signature of the Health Officer on the phial Ex. 2. What happened after wards I don't know about these two phials. Ex. 1 is the report of the Chemical Examiner.”

4. The Chemical Examiner's report was marked upon this evidence. The accused took objection in the trying Court as to the admissibility of the report of the Chemical Examiner under Section 510 of the Cr PC, This objection was apparently overruled. The Chemical Examiner was not examined to prove that the ghee was adulterated and unfit for human consumption. Under Section 510 of the Cr PC, the report of the Chemical Examiner may be used as evidence of enquiry without the evidence of the Chemical Examiner in cases where the report is made in the course of any proceedings under the Code of Criminal Procedure. The prosecution was started upon the complaint lodged on 7th September, 1917 and the report was received about 2nd September, 1917, i.e, prior to the initiation of the prosecution. The report was therefore not made in the course of any proceeding instituted under the Code of Criminal Procedure. The examination of the Chemical Examiner cannot, therefore, be dispensed with. I therefore allow this contention of the petitioner and hold that the Chemical Examiner should have been examined.

5. It is also contended that identity of the ghee examined by the Chemical Examiner has not been proved in this case. The evidence on this point consists only of the evidence of the Registrar of the Municipality. He made over the ghee to the Health Officer, but he does not know what be same of it after wards until he saw the report of the Chemical Examiner. The connecting link is therefore missing. Evidence should have been given on behalf of the prosecution as to-the transmission of the identical ghee to the Health Officer and of his having received it. The Health Officer got it from the Registrar and he ought to have-been examined by the prosecution and given any further evidence, if any to show how the identical ghee reached the hands of the Chemical Examiner. This has not been done in this case.

6. It has also been said that the Chemical Examiner's report dees not show the nature of the adulteration and exactly what he found by analysis, i.e, what the adulteration consisted of. The report says that the ghee was adulterated and unfit for human consumption. The objection of the defence is that the details of adulteration were necessary. In support of the contention the learned counsel on behalf of the petitioner has cited the case of Moti Lal Pal v. Corporation of Calcutta(1), which was a case under Section 495 of the Calcutta Municipal Act (3 of 1899). The terms of that section entirely agree with the terms of Section 251 of the Bengal Municipal Act (3 of 1884) and the principle of that ruling will apply to the present case. I do not feel inclined to agree with the contention of the learned counsel on this point. The authority cited in the case goes against the contention of the learned counsel. There the Food Inspector of the Municipality purchased samples of mustard oil from the manufactory of the accused which on analysis were found to be adulterated with til oil and the accused were convicted under Section 495 of the Bengal Act 3 of 1899. The learned Judges who decided that case observed that the Inspector asked for mustard oil and was entitled to get mustard oil unadulterated with til or anything else, and the supply of the adulterated mustard oil was held sufficient to bring the vendor within the section of the Act. Here the Registrar wanted good ghee for human consumption. The meaning is clear that he wanted pure quality of ghee as is mentioned in the ruling quoted above. To give him adulterated ghee, no matter how it was adulterated, would bring the petitioner within Section 251 of the Act. The proviso to that section relied upon by the learned counsel for the petitioner does not apply to this case at all.

7. Another contention of the learned counsel has been that the ghee was not offered for sale and that the petitioner does not sell ghee. It is admitted that the canisters of ghee were produced from a room of his shop by the petitioner himself. It is admitted in evidence of the defence that the Registrar went to the shop and asked for ghee from the accused and the accused said that he had ghee in his possession and the ghee was given. So the demand of the ghee and the offer of it is admitted. The only question is whether the ghee was for purchase and it was offered for that purpose. The Registrar in his evidence say that he “asked the accused for ghee on price” and that the canisters of ghee were brought out by the servant of the accused and one canister was opened. The accused told him to take ghee from any one he liked. Prom the evidence of the Registrar there can be no doubt that he asked the accused to sell him ghee and that the ghee was given to him for that purpose. The subsequent act of the Registrar in taking the ghee as sample, after suspecting it to be adulterated, does not at all affect the decision that when he first asked the accused to give ghee he wanted to purchase it. In the ruling quoted above, the Inspector of the Municipality in a similar way took samples of the mustard oil from the accused in that case and sent them for analysis. I therefore overrule this contention of the petitioner.

8. The result is that I do not see any ground for setting aside the conviction an this case upon the contentions raised by the learned counsel referred to above. But the case is one which required additional evidence to be given in order to prove the adulteration of the ghee. The report of the Chemical Examiner as observed above, was not properly admissible in evidence and the Health Officer of the Municipality should have been examined and evidence should have been given as to the identity of the ghee that the Chemical Examiner analysed.

9. I would therefore remand the case to the lower Court with the direction to examine the Health Officer and the Chemical Examiner, and to take such evidence of the prosecution in order to prove that the ghee in question was the ghee which was analysed by the Chemical Examiner. The evidence thus taken shall be returned to this Court by 6th February, 1918. The accused will be entitled to cross examine.

V.S/R.K

10. Case remanded.