P L D 1964 Dacca 152 (PLP)

4. Mr. Shamsuddin Ahmed, appearing for the petitioner, relies on the provision of section 44 of the Ordinance. and the table of sentence given thereunder. In the different columns of the table different sentences are provided for offences. Mr. Ahmed's contention is that the offence committed by the accused is second offence inasmuch as he committed similar offence under section 6(1) of the Bengal Food Adulteration Act, 1919 and, there fore, the offence for which he has now been punished is a second offence.

5. Mr. Abdul Hakim, Deputy Legal Remembrancer who appeared for the State rightly expressed his inability to agree with Mr. Shamsuddin Ahmed. Mr. Hamid, counsel for the opposite- party No. 2 also strenuously opposed the point made by Mr. Shamsuddin Ahmed. Section 44 of the Ordinance is in the following terms: "Whoever contravenes any provision of this Ordinance mentioned in the first column of the following table shall be punished for the first offence with a fine not less than that mentioned in the third column and not exceeding that mentioned in the fourth column of the said table, and for a second or subsequent offence of the same kind with punishment not less than that mentioned in the fifth column and not exceed ing that mentioned in the sixth column of that table."

6. On a careful examination of the section it is clear that the opening words provide that contravention of a provision of this Ordinance will be considered fresh offence. Latter part of the section indicates that both the offence must be committed under this Ordinance and, therefore, the offence committed under the Act of 1919 cannot be deemed to be an offence under this Ordinance. That being so, the offence for which the present proceeding has been instituted, is to be considered as the first offence and, therefore, it cannot be claimed that the accused should be sentenced in accordance with the sentence provided for the second offence. The words `offence of the same kind' appearing in the later part of section 44 refer to the kind of offence mentioned in the first part of the section. I am, therefore, of opinion that the first as well as the `subsequent offence' must be an offence under this Ordinance. An offence committed under the Ordinance cannot be connected with an offence committed under the Act.

7. It has been contended by Mr. Hamid that this being the first offence the learned Judge ought not to have awarded the maximum sentence provided for first offence. This contention is not without substance. He has also argued that in the absence of any rule having been framed, it is not possible to determine if any adulteration has in fact, taken place. The guidance for determination of adulteration is found in section 12 which is as follows: "In the case of mustard or any other rape seed oil, the Article manufactured or sold, as the case may be, shall be derived exclusively from mustard or any other rape seed, as the case may be, and shall ' fulfil such other conditions as may be prescribed."

8. I am not impressed by this argument. Section 12 itself lays down a: standard of purity of mustard oil and also makes it obligatory to fulfil such other conditions as may be prescribed. No rule having been framed, there will be no condition except those provided for this section. Therefore, absence of a rule does not make it impossible to determine adulteration or otherwise of the mustard oil.

9. The learned Judge in discussing the point observed as follows: "There is the report of the Public Analyst showing that the sample oil that was sent to him under proper seal, is highly adulterated. So there is the clear contravention of the provisions of section 12 of the Ordinance. This being the position, the appellant definitely renders himself liable to punishment as provided in third or the fourth column of the table appended to the section 44 of the Ordinance." The chemical examiner in this report says: "I am of opinion that the same is a sample of mustard oil which is highly adulterated." The learned Judge has accepted the report of the chemical examiner without application of his mind as to the nature of the report inasmuch as it gives no indication as to how the mustard oil is adulterated. The learned Judge should now apply his mind to the report and other evidence and thereafter arrive at a proper finding. The order of the Sessions Judge made on 30‑9‑61 should be set aside and the case should go on remand for rehearing of the appeal in accordance with law with direction to treat the offence complained of as first one and I order accordingly. The rule is made absolute. S. B/K. B. A. Rule made absolute.