Edgley, J - (1.)THIS Rule is directed against an order dated 11 July 1939 under which Mr. H.C. Sen, Deputy Magistrate of Midnapore, found the petitioner guilty under Section 6 read with Section 21, Bengal Food Adulteration Act, (Act 6 of 1919) and sentenced him to pay a fine of Rs. 100 or, in default, to undergo simple imprisonment for two months. By the same order the learned Magistrate directed that 25 tins of mustard oil which had been seized by the Sanitary Inspector and. produced before the Court should be declared forfeited under Section 13(2) of the Act. The case for the prosecution was to the effect that a consignment of 25 tins of mustard oil was received at the Garbeta station and then loaded in a cart in order that the tins might be transmitted to the petitioner's shop at Kharkusum situated some 10 miles from the Garbeta Railway Station. Delivery was taken of these goods at Garbeta on 27 February 1939. When the cart had proceeded a short distance from the station it was stopped by the local Sanitary Inspector who suspected that the tins contained adulterated mustard oil. The following day a sample of the oil was taken in the presence of the petitioner, who had been summoned by the Inspector for the purpose, and after analysis it was found that the oil was adulterated. The petitioner was thereupon placed on his trial under the relevant provisions of the Bengal Food Adulteration Act of 1919, His main defence was that the provisions of Section 6 of the Act were not applicable to this case as the goods were merely in transit to him and, if he had found on receipt of the consignment that the mustard oil had been adulterated, he would have returned the consignment to his consignor. On behalf of the opposite party in this case it has been argued that the petitioner was rightly convicted by the learned Magistrate inasmuch as it had been established that he was storing for sale the consignment of mustard oil which was found to have been adulterated. According to the admitted facts of the case, it appears that at the time when the consignment was found by the Sanitary Inspector it was merely in transit from the Garbeta Railway station to the petitioner's shop at Kharkusum and it therefore follows that in the ordinary sense of the expression the goods in question were not being "stored for sale." It is however argued that in view of the provisions of Sub-section (4) of Section 6 of the Act, it must be presumed that these goods were being stored for sale at the time when they were found by the Sanitary Inspector. THIS subsection is to the effect that in any prosecution under Section 6 the Court shall unless and until the contrary is proved, presume that any of the articles specified in Clause (a), (b), (c, (d) and (e) of Sub-section (1), found in the possession of a person who is in the habit of manufacturing or storing like articles for sale has been manufactured or stored for sale by such person.
(2.)IT is argued that, in the case with which we are now dealing, the goods were in the possession of the petitioner's servant and were therefore constructively in the possession of the petitioner and, this being the case, the presumption raised under Sub-section (4) of Section 6 must apply in view of the facts which have been proved. I am however not prepared to accept this argument. In my view, in a case in which a person is prosecuted for storing adulterated food for sale, it must ordinarily be proved affirmatively that such food is actually being stored and, in my opinion, such storage cannot be taken to include transit to a place of storage unless the adulterated food in question is actually in the physical possession of a person to whom Sub-section (4) of Section 6 expressly applies. In this respect I am in agreement with the view expressed by Biswas J. in Ram Charita Ram V/s. District Board of Rajshahji in which the learned Judge expressed the view that "possession in Sub-section (4) must mean actual physical possession" and that this word "must be given a strict interpretation and cannot be extended to include constructive possession." In the case with which we are now dealing the consignment was found in the possession of the petitioner's carter. Such a person is obviously not one "who is in the habit of manufacturing or storing like articles for sale" and this being the case, the presumption raised by Sub-section (4) of Section 6 of the Act can have no application. IT therefore follows that it has not been proved that the tins of mustard oil which were found by the Sanitary Inspector on 27 February 1939 and from which a sample was taken by him on the following day were stored for sale within the meaning of Section 6(1) of the Act. Admittedly, there is no question in this case of selling, exposing for sale or manufacture for sale and, this being the case, the prosecution fails. As regards that part of the order of the learned Magistrate which relates to the forfeiture of the consignment of adulterated oil the position is different. Although the Bengal Food Adulteration Act of 1919 contains no direct provision under which a person can be prosecuted in respect of adulterated food found in his possession while such food is in transit, there is nevertheless a clear provision to the effect that if an authorised person has reason to believe such food to be adulterated, he may seize it in order that the same may be dealt with in accordance with the provisions of Section 13. In this particular case the consignment was seized by the Sanitary Inspector under the provisions of Section 12 of the Act, and the order with regard to the forfeiture of the consignment was passed by the Magistrate tinder Section 13 (2) as it appeared to him on adequate materials that the food in question was adulterated. IT is argued on behalf : of the petitioner that this order was unreasonable in view of the fact that a sample had been taken from one tin only. IT is, however, admitted that all the tins were of the same brand and formed part of one consignment. In circumstances of this sort I do not think that it would be reasonable to expect the Sanitary Inspector to take a sample from each tin and, in view of the report received by the Magistrate as a result of the analysis, I am of opinion that it was quite proper for him to make the forfeiture order with regard to the whole of the consignment. The result, therefore, is that the Rule is made absolute with regard to the conviction of the petitioner under Section 6 read with Section 21, Bengal Food Adulteration Act of 1919. The conviction is set aside and the fine, if already paid, will be refunded. The order of forfeiture under Section 13(2) of the Act will stand.