Gopinath Sahu vs Arrah Municipality

Wort, J.—This rule was granted with regard to the order of the Sub-divisional Officer refusing to transfer a case which order was made on 7th June 1929. In my judgment, the applicant has made out no case for transfer.

But a very important, question of law arises on the construction of some of the sections of the Bihar and Orissa Adulteration Act of 1919, being Act 2 of that year. A complaint was lodged by the Inspector under the Act against the applicant based on an inspection made by him of the applicant''s factory on 2nd December 1928. The inspection related to the manufacture of mustard oil which the applicant carried on in his factory. Samples of the oil were taken by the Inspector u/s 7 of the Act and an analysis was made by the Government analyst u/s 8 of the Act. The sample which was sent to the Government analyst is found to be adulterated. That was the reason for the prosecution. During the course of the trial in that case the accused person being the manager of the factory made an application under Sub-section (2),Section 9 of the Act that the sample in the hands of the local authority, which was kept by them under Sub-section (2), Section 7, may be sent to'' the Government analyst.

This application succeeded and therefore at this stage of the proceedings there were two samples which had been examined: the one sent direct, by the Inspector and the other at the request of the accused person which had been kept, as I have already stated, in the custody if the local authority. As a result of the examination of the sample kept in the possession of the local authority it was found that that sample, at any rate, contained unadulterated mustard oil and as a result of that piece of evidence on 6th April 1929, the accused person was acquitted of the charge under the Food Adulteration Act. In the meantime, however, and before the acquittal on 6th April 1929, another prosecution was lodged, and that case is now pending before the Court and in that case this application is made. This Inspector appears to have gone through the same process in accordance'' with the provisions of the Act, and sent one of the three bottles or phials to the'' Chemical Examiner, which sample according to the analysis or the Chemical'' Examiner''s report is found to be adulterated. The same request that had been made in the former trial was made by the accused u/s 9, Sub-section (2), in this case. The learned Magistrate trying the case held that by reason of the proviso to Section 9 he was prevented from-acceding to the application of the accused. The proviso reads:

Provided that the Court shall not cause any food to be cant if it is brought to the notice of the Court that a certificate u/s 8 in respect of such food has already been granted under the hand of the Chemical Examiner.

The point for my determination is what is meant by the expression "in respect of such food"? The District authorities are represented before me and the learned Counsel on their behalf argues-that a certificate was already granted u/s 8 in respect of this sample of mustard oil in that a certificate was already granted with regard to one phial u/s 8. It remains to be determined whether that contention is right. On behalf of the accused Sub-section (2), Section 7, is referred to and it is suggested that Sub-section (2) is redundant if the contention on behalf of the District authorities is upheld. The sub-section to which I have just referred reads:

The slid person shall, if requited to do so deliver one of the part to the Seller or his agent, and shall retain one part for future comparison and may submit the third part to the public analyst.

It is contended in this case that what the substance of the petition filed in the Court was that this third sample, which was in possession of the local authority, should be compared and, as I have already stated, it is argued that unless that construction is placed upon the section the provisions of the section are useless.

Now, the question, therefore, is, as I have already stated, whether there has been in this case a certificate u/s 8 of the contents of this phial which is in the possession of the authorities and which the accused person requires to be examined and analysed u/s 8. It is true that an analysis has been made of a portion of the bulk of this mustard oil from which this sample as well as the two others were taken. But it is obvious that that statement of facts can not be an answer to the petition which the applicant makes in this case, other wise it could be met with the contention that at some earlier date and in proceedings which had no relation to the proceedings then before the Court a .sample had been taken of the same bulk.

It seems to me that the section is best construed by asking one or two simple questions with regard to it. In the first place, with regard to this sample, which the accused person requires to be examined, the first question would be has there been an examination or an Analysis of that particular mustard oil u/s 8? That question in my judgment can only be answered in the negative, and if that answer is given it seems to me unnecessary to further enquire into the matter.

In my judgment, having regard to the view I take of Section 9, Sub-section (2), and the , proviso, the learned Magistrate in this case was wrong in not allowing the petition of the accused person to have this sample, which was in the custody of the local authority, analysed u/s 8

The substituted application for a transfer of the case is rejected, with the observations which I have made with regard to the true construction of Section 9 of the Act.