T.N.R. Tirumalpad, J.C.
1. This is an appeal filed on be-half of the Agartala Municipality by its Food Inspector against the acquittal of the respondent Gopal Chandra Saha by the Sessions Judge in Criminal Appeal No. 70 of 1958. The respondent was convicted in Criminal Case No. 217 of 1958 by the first class Magistrate, Agartala under Section 16 of the Prevention of Food Adulteration Act, 1954 and sentenced to a fine of Rs. 51/-. But on appeal he was acquitted by the Sessions Judge.
2. The facts may be briefly stated:- The respondent and one Govinda Chandra Saha were the employees of a Firm called Srikishna Stores Carrying on whole-sale and retail business in mustard oil in Agartala. On 16-4-1958 the appellant, the Food Inspector of the Agartala Municipality on receipt of information that the two persons were filling up mustard oil in the godown of the Firm from a big barrel of mustard oil into smaller tins having the embossed marks of the manufacturers of various brands of mustard oil.
He rushed to the place along with two peons and saw that 8 such tins had already been filled from the big barrel and sealed with lead and that 12 other ting were being filled with mustard oil from the same barrel. They were also sealed with lead while he was present at the place. There were on the whole 18 such tins which were marked as Exts. M-l to M-18 in the trial which followed. The Food Inspector seized the tins and prepared a seizure list Ext. P-1 in which P. Ws. 2 and 3 signed. Out of the 18 tins, 6 contained the embossed marks, of "Deer Brand" mustard oil, 4 of "Ghani Brand, 3 of "Sakhi Brand", 3 of "Bottle Brand", 1 of "Narayan Brand" and 1 of "Elephant Brand".
On 17-4-1958 he applied to the Administrator Agartala Municipality for written consent to institute proceedings against the two persons as required under Section 20 of the Prevention of Food Adulteration Act. It may be mentioned here that the Agartala Municipality had been superseded by the Chief Commissioner in 1955 and the Collector and District Magistrate of Agartala. was appointed the Administrator under Section 293 of the Tripura Municipal Act and hence the appellant applied for written consent of the Administrator under Section 20. Ext. P-2 is the said application for written consent. We find an endorsement on the said application signed by the Administrator, Agartala Municipality dated 17-4-1958 authorising the Food Inspector to start a case,
3. On 18-4-1958 the appellant filed the complaint in the Court of the S.D.M. Agartala. In paragraph 6 of the complaint he stated that the matter was duly reported to the Administrator Local Authority1 Agartala Municipality seeking the permission to institute Criminal case against the accused persons for violating the provisions of Section 16 of the Prevention of Food Adulteration Act and the Magistrate was requested to take cognizance. The case was sent by the S. D. O, on the very same day to the first class Magistrate for enquiry and trial.
The accused persons were arrested and released on bail, on 1-5-1958. After 3 more adjournments, the accused wanted on 3-7-1958 that the question whether sanction has been obtained as contemplated by Section 20 of the Prevention of Food Adulteration Act, should be decided before the case was proceeded with. The prosecution had not produced the written consent in Court till then and the Magistrate directed them to produce the order of sanction with their evidence. Again there were 3 further adjournments as the complainant was not ready to go on.
On 16-8-1958, the written consent Ex. P-2 was produced in Court. On 28-8-1958, the accused were questioned by the Magistrate under Section 242 Cr. P.C. as it was a summons case and the trial proceeded. The prosecution examined 3 P. Ws. The accused were then examined under Section 342 Cr. P.C. but they did not adduce any evidence on their side. Elaborate arguments were heard by the Magistrate on 5 days and finally he acquitted Govinda Chandra Saha and convicted the respondent herein as stated above.
4. What was argued before the Magistrate was that under Section 20 of the Prevention of Food Adulteration Act, the written consent of the Administrator, Agartala Municipality was not sufficient as he was not the local authority or a person authorised in that behalf by the local authority. But the Magistrate repelled that argument and held that the Administrator was competent to give the written consent. It was also argued before the Magistrate that there was no misbranding of the mustard oil within the meaning of Section 2(ix) and Section 7(ii) of the Act and hence the accused had not committed any offence in filling up the said tins with the oil and in sealing the tins for the purpose of storing them far sale in the shop.
But the Magistrate held that in filling up the 18 empty tins of 6 different brands bearing the embossed marks of the original Firms from a barrel of an unknown brand and in sealing up the said tins and making them ready for sale for human con sumption, the accused allowed the tins to be deceptive with respect to their contents and did not label them in accordance with Rule 32 framed under the Act so as to indicate their true character as prescribed by law and thereby it was intended that the unwary purchaser should suppose that he would be purchasing the articles of the particular brands embossed on the tins and that thereby the respondent was guilty of misbranding the mustard oil within the meaning of Section 2(ix)(g) and Section 7(ii) of the Act.
5. When the matter came up before the Sessions Court on appeal by the respondent, it was for the first time argued before the Sessions Court that the written consent Ext. P-2 was an antedated document and that though the Administrator Agartala Municipality has purported to sign in the document on 17-4-1958 it cannot have been signed by him on that date but only subsequently. It was pointed out that in paragraph 8 of the complaint dated 18-4-1958 the fact that the written consent was given on 17-4-1958 was not mentioned and further that the written consent was actually produced into Court only on 16-8-1958 and hence it must have been antedated to satisfy the requirements of Section 20 of the Act. This argument found favour with the Sessions Judge and he held that the sanction order had been clearly antedated and hence the Magistrate had no-jurisdiction to take cognizance of the offence as there-was no sanction order before him.
On the other two points namely, the authority of the Administrator to grant the sanction and on the question of misbranding, the learned Sessions fudge disagreed with the Magistrate and held that the Administrator was not a person authorised to accord the sanction, that such a defect will not be cured by Section 535 or 537 of the Criminal Procedure Code and that the defect vitiated the prosecution. On the other question, he held that the fact that the tins contained mustard oil though the brands shown outside on the tins were of different kinds would mean that there was no misbranding and that in. order to be guilty of misbranding the substance inside the tins must have been altogether a different article of food other than mustard oil and hence there was no misbranding.
6. It is against these findings in appeal that the present appeal against the acquittal has been brought.
7. I shall first deal with the question of sanction under Section 20 of the Act. Ext. P-2 shows that the Food Inspector applied for the sanction to the Administrator, Agartala Municipality on 17-4-1958 and that the Administrator endorsed sanction thereon on-17-4-1958 itself. The first contention was that the Administrator was not the proper authority to grant the written consent. Under Section 20, no prosecution for an offence under the Act shall be instituted except with the written consent of a local authority or a person authorised in that behalf by the local authority. The Agartala Municipality is the local authority in the present case as defined under Section 2(viii) of the Act.
The Agartala Municipality was superseded on 23-4-1955 by the Chief Commissioner acting under Section 292 of the Tripura Municipal Act and the Collector and District Magistrate of Tripura was appointed the Administrator. Ever since then, the Administrator has continued in-charge of the Municipality. The learned Sessions Judge has given a finding that the Administrator was not the person authorised to give the written consent by the Municipality and hence his written consent was invalid.
There is no doubt that this is a wrong finding. The learned Sessions Judge totally lost sight of Section 293 of the Tripura Municipal Act under which on supersession of a Municipality all the duties and powers which the Chairman, the Vice-Chairman, the Commissioners or Board of Commissioners were entitled to perform were to be performed or exercised by the Administrator so appointed. The learned Magistrate has referred in his judgment to the section and has quoted it verbatim. One does not know how the appellate Judge lost sight of it altogether and in its place referred to Section 89 of the Same Act which is totally irrelevant.
Actually under Section 293 the Administrator performs all the duties and powers of the Municipality including, of course, the power under Section 20 of the Prevention of Food Adulteration Act to give the written consent for the prosecution. There is no meaning, therefore, in the finding of the Sessions Judge that the Administrator is not the person authorised in that behalf by the local authority. The Administrator is the local authority itself. Hence there is no question of Ext. P-2 the written consent given by him being invalid.
8. The learned Sessions Judge has gone further and characterised the written consent Ext. P-2 purporting to have been given by the Administrator on 17-4-1958 as an antedated document. This finding is somewhat surprising to me. I do not know whether the Sessions Judge himself realised the full import of such a finding. It amounts to stating that a responsible Officer like the Collector and District Magistrate of Tripura who is the Administrator of the Agartala Municipality has been guilty of deliberately antedating a written consent required under Section 20 of the Prevention of Food Adulteration Act in order to see that the prosecution against the respondent herein which was originally instituted without such a written consent should not fail on the ground of want of sanction.
The respondent himself did not contend in the Magistrate's Court that Ext. P-2 was antedated. No such suggestion was made to P. W. 1 in cross-examination. The only suggestion was that he did not take the permission of the proper authority according to the provisions of Section 20. This is certainly not a suggestion of the document having been deliberately antedated. If such a suggestion had been made to P. W. 1 or if such a defence had at all been raised in the Magistrate's Court, the prosecution would have had an opportunity to examine the Administrator to prove that he signed it on 17-4-1958. A perusal of the appeal grounds in the Sessions Court does not also show that the plea of antedating of Ext. P-2 was taken in the appellate Court.
The learned Sessions Judge, therefore, should not have allowed such a plea to be raised on a question of fact for the first time at the stage of arguments. Under Section 114, illustrations (e) and (f) of the Evidence Act, the Court had to presume that official acts have been regularly performed and that the common course of business has been followed in particular cases. No doubt, such presumption could be rebutted. But when no attempt was made before the Magistrate to question it and it was not raised as one of the grounds of appeal, the learned Sessions Judge was wrong in going out of the way in dealing with that question and in giving such an adverse finding without even giving an opportunity to the official concerned to explain.
9-10. Now, let us see the points relied on by the Sessions Judge to hold that Ext. P-2 was antedated. (His Lordship considered these points and proceeded).
I. must therefore express my disagreement with the Sessions Judge that Ext. P-2 was an antedated document. The learned Magistrate was right in treating Ext. P-2 as a proper sanction order within the meaning of Section 20 and the learned Sessions Judge was wrong in basing his acquittal of the respondent on such a finding.
11. Now we shall go into the merits of the case. The respondent was charged under Section 16(l)(a) of the Prevention of Food Adulteration Act for contravening Section 7(ii) of the Act, The charge against him was that he was guilty of misbranding the mustard oil which he had stored for sale in his godown. As to actual facts there is no dispute. The respondent was caught by P. W. 1 filling the 18 tins, which were marked Exts. M-l to M-18 with mustard oil from a big barrel containing 5 to 6 maunds of oil and sealing the said 18 tins with lead.
The 18 tins included 6 tins of "Deer Brand" mustard oil, 4 tins of "Ghani Brand", 3 tins of "Sakhi Brand, 3 tins of "Bottle Brand", 1 tin of "Narayan Brand" and 1 tin of "Elephant Brand". The tins had the embossed marks of the particular brands displayed on them while the big barrel from which they were being filled did not show that it was of any particular brand of mustard oil. In the course of the cross-examination of P. W. 1 it was suggested to him that "Sakhi Brand" indicated the name oi Sakhicharan, the father of the proprietor of Srikrishna Stores.
The learned Magistrate, therefore, accepted the defence case that "Sakhi Brand" was the brand of Srikrishna Stores and that therefore there was no mis-branding as far as the 3 tins of "Sakhi Brand" were concerned and his conviction was only in respect of the misbranding of the remaining 15 tins. It was clear from the defence suggestion that the 15 tins were being filled with mustard oil of "Sakhi Brand" which was their own brand. After filling into the 15 tins they were also sealed with lead by the respondent. The above facts are admitted. NOW the question is whether the respondent was guilty of misbranding the mustard oil within the meaning of Section 7(ii) and Section 2(ix).
12. The respondent denied that he was guilty of misbranding. His cross-examination of P. W. I brought out that such empty tins were sold in the market, that 5 to 7 of the 18 tins were somewhat old, that the original tins of the manufacturers of the particular brands contained seals in lead at the place of opening, that the seized tins did not contain the said seals of the original manufacturers, that such tins like the ones seized were used for keeping articles for family use and also in shops, that the respondent filled : up the different tins for the convenience of sale as it was inconvenient to sell from barrels, and that no purchaser made any complaint to P. W. 1 that the respondent sold oil of one brand as the oil of another brand.
13. The above answers were elicited from P. W. 1 in order to show that there was no intention on the part of the respondent to pass them off to the public as the mustard oil produced by the manufacturers of those particular brands and that he had only purchased the empty tins of the various brands from the market and had filled up $>e tins and sealed them for the purpose of convenient storing of his mustard oil for the purpose of sale. Now the question is whether absence of any intention to mislead the public by storing one brand of mustard oil in the tins of other manufacturers will in any way affect the question of the respondent's liability under Section 7 of the Act.
The learned Sessions Judge was of opinion that the policy of the Act was to prevent the sale and storing of articles of food unless they were of a certain standard of purity, that as the mustard oil in the present case was not examined by any Analyst and found unfit for human consumption, the fact that this particular mustard oil from a big barrel of no brand was stored in 15 different tins of different brands of mustard oil will not make the respondent guilty of misbranding within the meaning of Section 2(ix).
14. The object of the Prevention of Food Adulteration Act was not only to prevent adulteration of food. It was also to prevent Misbranding of food articles. Adulteration is defined under Section 2(i) of the Act while "Misbranding" is defined in Section 2(ix) of the Act. Both "adulteration" and "Misbranding" have been made offences under Section 7 of the' Act, The definition of "Misbranding" is indeed very exhaustive and is quite distinct from the definition of "Adulteration". When a person is charged for Misbranding, it is not necessary to have any proof of Adulteration as the learned Sessions Judge thinks.
Nor is it necessary to prove that there was any intention to mislead or to deceive on the part of the person accused of misbranding as in the case of many of the offences under other Penal enactments. Thus any attempt to prove that the respondent was not trying to mislead or deceive the public and that he was not trying to get any extra profit for himself by misbranding will not help the accused under Section 7 of the Act. Misbranding per se is an offence. Thus the respondent cannot get off by showing that he had purchased empty tins of other brands for the purpose of convenient storing of mustard oil and that he did not seek to mislead or deceive the public by doing so.
15. We are only concerned with Section 2(ix)(g) in the present case which is to the following effect: An article of food shall be deemed to be misbrand-ed
If the package containing it, or the label on the package, bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents.
16. Package has been defined in Section 2(x) as including a tin. Thus the 15 tins in the present case will come under Section 2(ix)(g). Now the 15 tins containing mustard oil bore the embossed marks of the manufacturers of particular brands of mustard oil. The 15 tins here were admittedly filled and sealed with mustard oil which were not of the brands whose embossed marks were displayed on the outside of the tins.
Thus the respondent's mustard oil which, as I said, was of "Sakhi Brand" was filled in tins described as the mustard oil of other brands. The public who come to purchase mustard oil to the respondent's shop are led to think from the tins that they contained mustard oil of that particular brand whose name is inscribed on the outside of the tins What we are concerned with under Section 2(ix)(g) is not whether the respondent intended to deceive or mislead the public by filling tins of different brands of mustard oil with his own brand of it, but whether the public are likely to be misled or deceived.
No doubt he tried to make out that the public are not likely to be deceived as in the case of the original brands in addition to the embossed marks on the outside of the tins there would b6 another seal at the opening which was absent in the case of these tins. But as has been pointed out by the learned Magistrate very relevantly in his judgment, we are here dealing not with experts but with the lay public and with the unwary purchaser and that the standard of comparison is not that there should be resemblance in all respects.
The section itself says that it was enough that if the statement design or device on the package was false or misleading in any material particular. It cannot be denied that in the present case it was false and misleading as the mustard oil in the tins were not mustard oil manufactured by the makers of those particular brands.
17. The learned Sessions Judge thinks that only if one kind of food is passed off as another article of food viz., when linseed oil is passed off as mustard oil, then alone the liability would come in. Of course that is provided for under another clause in 2(ix) namely 2(ix)(c). But as far as Section 2(ix)(g) is concerned, even if mustard oil of one brand is passed off as the mustard oil of. another brand in sealed tins, it will amount to misbranding. We must remember that we are now in an age where articles of food are manufactured on a commercial scale by various manufacturers and in the minds of the public, each brand has come to have its own special value even where the same article of food is manufactured by various manufacturers.
Thus one man may have a special liking for 'Deer Brand" mustard oil while another may like the "Elephant Brand" and the third the "Sakhi Brand". He will get satisfaction only by using the particular brand for which he has got a liking. It is to prevent the public being misled in this particular respect that Section 2(ix)(g) has been specifically provided for. Otherwise it has no meaning. There is no doubt therefore that the finding of the learned Sessions Judge that there was no misbranding in the present case was wrong and if the said finding is allowed to stand prosecutions under Section 7 of the Act would become impossible.
18. The. acquittal of the respondent by the learned Sessions Judge on his mistaken findings under Section 7 and Section 20 of the Act cannot therefore be allowed to stand. Even within the meaning of the Supreme Court decision Aher Raja Khima v. State of Saurashtru, , there are compelling reasons why I should interfere with this acquittal. The order of acquittal is set aside and the conviction and sentence passed by the learned Magistrate against the respondent are restored.