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PETITIONER: M/S.  MADAN MOHAN DAMMA MAL LTD. AND ANR.

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL AND ANR.

DATE OF JUDGMENT: 24/11/1960

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR IMAM, SYED JAFFER SARKAR, A.K.

CITATION:  1961 AIR 1013            1961 SCR  (2) 664

ACT: Food     Adulteration--Storing    adulterated    oil     for sale--Presumption, rebuttal of--Calcutta Municipal Act, 1951 (W.B. XXXIII of 1951), s. 462.

HEADNOTE: The first appellant No. 1 sent a consignment of mustard  oil in a tank wagon from Firozabad, U. P. to itself at  Calcutta where  it  took  delivery  of the  wagon  from  the  railway authorities.   The  Food Inspector took samples of  the  oil from   the  wagon  which  on  analysis  were  found  to   be adulterated.  The appellants were prosecuted under s. 462 of the  Calcutta  Municipal Act, 951  for  storing  adulterated mustard oil for sale.  The 665 appellants  contended that the presumption under sub-s.  (4) of  s.  462  that the mustard oil was stored  for  sale  was rebutted  in view of certain arrangements between the U.  P. Oil  Millers  Association  and the  Deputy  Commissioner  of Police  and  of a letter written by the  appellants  to  the Association asking that a sample may be taken and tested  so that the appellants "may take the delivery of oil only if it is found pure on analysis." Held,   that   this  was  not  sufficient   to   rebut   the presumption’. that the oil was stored for sale.  The  letter did  not  say  that the oil would not be sold;  it  was  not stated  as to what would be done if the oil was found to  be impure.   There was no arrangement between  the  Association and  the  Corporation which was the sole authority  to  take action.   The  arrangement and the letter were a  device  to make detection difficult.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 118  of 1959. Appeal  by special leave from the judgment and  order  dated July 2, 1957, of the Calcutta High Court in Criminal  Appeal No. 101 of 1956 arising out of the judgment and order  dated January  16,  1956,  of the Second Court  of  the  Municipal

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Magistrate, Calcutta, in case No. 208B of 1955. C.  B. Aggarwala, B. B. Tawakley and B. P.  Maheshwari,  for the appellant. Nalin Chandra Bannerjee, Sunil K. Basu, S. N. Mukherjee  for P. K. Bose, for the respondent No. 2. 1960.  November 24.  The Judgment of the Court was delivered by RAGHUBAR  DAYAL,  J.-This  is an  appeal  by  special  leave against the ’Order of the Calcutta High Court affirming  the conviction of the appellants Messrs.  Madan Mohan Damma  Mal Ltd.,  and Om Prokash Manglik, its Manager, under s. 462  of the  Calcutta  Municipal Act, 1951 (W.  B. XXXIII  of  1951) hereinafter called the Act. The  facts  leading to this appeal are that  Messrs.   Madan Mohan  Damma Mal Ltd., (hereinafter called appellant No.  1) sent  a  consignment  of mustard oil, about  499  maunds  in weight, from Firozabad, the place of manufacture, to itself, at Calcutta, on December 25, 1954, in tank wagon No.  75612. This wagon was placed at the Pathuriaghat siding at Calcutta at 666 about 8.45 a.m., on January 3, 1955.  Dr. Nityananda  Bagui, Food  Inspector of the Calcutta Corporation, accompanied  by certain police officers, went to that siding and took  three samples  of  mustard  oil contained  in  this  wagon,  after arranging with Om Prokash Manglik, appellant No. 2, who  was found  near the wagon, the purchase of 12 ounces of oil  for annas  eight.   He took the sample of oil in  three  phials. They were properly sealed.  One of them was given to  appel- lant  No. 2. The other two were kept by Dr. Bagui.  He  sent one of them to the Public Analyst for examination, the  same day.  Ashit Ranjan Sen, the Public Analyst, examined the oil contained  in that phial on January 3, 1955, but  could  not come  to any positive opinion about its purity.  Dr.  Bagui, however, seized the tank wagon that evening, sealed it  with the  Corporation’s  seal  and  left it  in  the  custody  of appellant  No.  2.  The oil in the tank was  allowed  to  be removed to the godown of the appellants on January 6,  1955. The lock of the godown was then sealed with the seal of  the Corporation.  Mr. Sen reported on January 4, 1955, that  the oil  was adulterated.  He sent a detailed report  about  the result  of the examination on January 24, 1955.  On  receipt of  the report about the mustard oil being adulterated,  Dr. Bagui  filed a complaint against the appellants on  February 4, 1955, with respect to their. selling and keeping for sale mustard  oil, a sample of which was found on analysis to  be mustard oil which was adulterated with groundnut oil. During  the  course  of the trial, the trial  Court,  on  an application  on  behalf  of  the  appellants,  ordered   the despatch of the third sample phial of the oil in the custody of  the  Corporation’s Health Officer, to  the  Director  of Health Services, Government of West Bengal, for analysis and report.   This  sample was analysed by  Dulal  Chandra  Dey, Court  Witness  no.  1, and found  to  be  adulterated  with groundnut oil.  The report of the Analyst was, however, sent to the Court under the signature of Dr. S. K. Chatterjee, D. W. 2, Deputy Director of Health Services, Government of West Bengal. 667 The  appellants  appear to have sent the sample  of  oil  in their  possession  to  Om Prakash, Oil Expert  to  the  U.P. Government,  who reported on July 27, 1955, that the  sample ’conforms  to  Agmark Specification for Mustard Oil  and  is considered  to  be  free from adulterants  such  as  sesame, groundnut  and linseed oil’.  This report, however, has  not

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been proved. The  Deputy  Commissioner  of  Police,  Enforcement  Branch, Calcutta, sent a sample of mustard oil on January 10,  1955, to  the  Public Analyst, Food & Water,  West  Bengal  Public Health Laboratory.  Sri S. N. Mitra, D. W. 7, examined  this sample  and  reported, on the basis  of  its  saponification value  to  be 173.3, and iodine value to be  105,  that  the sample approximated to the standards of genuine mustard oil. This  report does not establish that the sample was of  pure mustard oil.  Sri Mitra’s reply to the query from the Deputy Commissioner  of Police for clarification, makes  this  very clear.  It is: "But,  unless  conclusive  evidence of  the  presence  of  a foreign  oil, corroborated in some instances by the  figures of  the usual oil contents, is obtained, the sample  is  not and cannot be declared adulterated.  In the present case the sample of mustard oil has already been examined exhaustively and  has been certified as ‘approximating to standards’  but not as genuine.  The legal implication of the expression  is that the sample will have the benefit of doubt." Further,  there  is  no  good  evidence  on  the  record  to establish  that  the sample sent to Sri Mitra was  a  sample from the appellants’ tank wagon. Dr.  Bagui does not depose about the police people taking  a sample  of  oil.   He was not questioned  about  the  police taking  any  sample of the oil.  There seems to be  no  good reason for the police taking a sample of oil for the purpose of analysis and finding out whether the mustard oil was pure or  not.   The  case  put to Dr.  Bagui  during  his  cross- examination,  on behalf of the appellants, appears  to  have been  that he himself had taken four samples of the  mustard oil  in question and that one of those samples was  sent  to the Enforcement Branch.  Dr. Bagui denied that he had taken 668 four  samples  of the mustard oil, His  statement  is  fully corroborated  by  the  statement of  Kalidas  Ganguli,  Sub- Inspector,  Calcutta Enforcement Branch, Police  Department, who  had accompanied Dr. Bagui on the occasion.   He  stated that  the Corporation Food Inspector took three samples  and the  police took the one ,,sample which was sealed with  the Corporation  seal.   We are not satisfied  that  the  police actually  took one sample of the oil and had it sealed  with the Corporation seal as deposed to by Kalidas Ganguli. The Courts below found on the evidence that the mustard  oil in the appellants’ tank wagon was adulterated with groundnut oil, that the appellants were in possession of that oil  and had  stored  that oil for sale, in view of  the  presumption arising under subs. (4) of s. 462 of the Act, and which  had not  been  rebutted on behalf of  the  appellants.   Learned counsel for the appellants has questioned the correctness of these findings. We  have  considered  the evidence in  connection  with  the analysis  of  the samples of mustard oil  by  the  Chemists. Ashit  Ranjan Sen, P.W. 2, Public Analyst, who examined  the first  sample sent by Dr. Bagui on January 3-4, 1955,  found it  adulterated,  on the basis of the data that  the  B.  R. Index  at  40 degree C was 60.4 and the Bellier’s  test  for groundnut oil was positive inasmuch as it gave turbidity  at 28  degree  C.  Court Witness no. 1, Dulal  Chand  Dey,  who actually  analysed the sample sent by the Court, also  found it   adulterated,  on  the  basis  of  his   obtaining   the saponification  value  to  be  175.5,  iodine  value  to  be 106degree 8 and the appearance of turbidity at 27 degree  C. He  also found indication of the presence of a small  amount of  linseed  oil.  The correctness of his opinion  on  these

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data   is   admitted  by  Sri  Mitra,  D.W.  7.   In   these circumstances,  the  finding of the Courts  below  that  the mustard oil in the appellant’s tank wagon was adulterated is correct.   It is not established that the sample of  mustard oil  sent  to Sri Mitra by the Deputy  Commissioner  of  the Enforcement  Branch  contained mustard oil  from  this  tank wagon.   The opinion of Sri Mitra about the nature  of  that sample therefore does not go against the opinion 669 of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnut oil. The  other contention for the appellants is that  they  were not in possession of the oil when the sample of mustard  oil was  taken  by Dr. Bagui and that therefore  no  presumption under sub-s. (4) of s. 462 of the Act can be raised  against them  for  holding  that the oil was stored  for  sale.   It appears  from  the judgment of the High Court  under  appeal that  it was not disputed at the hearing before it that  the appellants  were  in  possession of the  mustard  oil  whose sample had been taken.  On the evidence on the record we are of opinion that they were in possession of the mustard  oil. The  consignment  of oil was from  the  manufacturing  firm, appellant  no.  1,  to itself  at  Calcutta.   Its  manager, appellant no. 2, took delivery of the wagon from the railway authorities on January 3, 1955.  There is no direct evidence to  the  effect that such delivery was taken  prior  to  Dr. Bagui’s   taking  sample  of  the  mustard  oil.   But   the circumstances,  in our opinion, conclusively establish  that appellant no. 2 had taken delivery of the wagon prior to Dr. Bagui’s  visit  and taking samples of oil  from  the  wagon. Appellant  no. 2 is not expected to and could not  have  got the wagon opened for ’the purpose of taking samples of  oil, if  he had not taken delivery of the wagon from the  railway authorities.  The railway authorities themselves would  have seen  to  it that nobody tampers with the  contents  of  the wagon  in its charge.  Appellant no. 2 must  have  therefore paid  the freight for the wagon prior to Dr.  Bagui’s  visit and thus obtained delivery of the wagon.  It was  thereafter that he got control over the wagon and was in a position  to take  out oil from it or to permit anyone else to  take  out oil.   We  therefore  hold  that  the  appellants  were   in possession of the oil in the tank wagon when Dr. Bagui  took samples of the oil from it. The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by  the appellants,  under  sub-s.  (4) of s. 462  of  the  Act,  is rebuttable  and has been fully rebutted in view  of  certain arrangements between the 83 670 U.P. Oil Millers Association and the Deputy Commissioner  of Police, Enforcement Branch, and the letter of the appellants to  the Secretary of the Association (Exhibit R) on  January 3,  1955.   We have considered the various  documents  which have been referred to in support of the arrangement  between the  Association stand the Deputy Commissioner,  Enforcement Branch,  but  do  not  find  therein  anything  which  would restrain legally the appellants from selling the oil even if it  is  found  to be adulterated.  The  proceedings  of  the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and  Assistant Commissioner  of  the Enforcement Branch show that  no  such agreement  has been arrived at. Even the suggestion  of  the Deputy Commissioner that all the members of the  Association should write to their respective mills that all the quantity

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of oil which would be imported should at first be passed and then  made delivery of, was not fully accepted, the  members simply stating that they always and invariably imported pure mustard  oil.  It was, however, decided that the samples  of oil be taken from the next morning, i.e., June 10, 1954.  We however  find  that in November 1954 the U. P.  Oil  Millers Association wrote to appellant no.  I that according to  the decision  of the Deputy Commissioner of Police,  Enforcement Branch, every application to draw sample and test it  should be accompanied by a certificate signed by the Chemist or the Manager  or the Proprietor of the Mills to the  effect  that the mustard oil in the tank wagon was pure mustard oil  free from  Argemoni, linseed or any other adulteration, and  that in February 1955 and April 1955, the Deputy Commissioner  of Police,  Enforcement  Branch  had to remind the  U.  P.  Oil Millers  Association that it should advise all  its  members that  whenever  they  indent any mustard  oil  from  outside Bengal,  they  would  see  that  the  railway  receipts   be accompanied  by a clear certificate of examination from  the Chemist  of  the  factory  who  examined  the  same.    Such directions   from   the  Deputy  Commissioner   of   Police, Enforcement Branch, do not appear to have 671 had any great effect, as the consignment of oil received  by the  appellants was without any such certificate.   Mahendra Kumar  Gupta,  D.W.  1, Chemist  of  the  appellants’  mill, deposed however that he had taken the sample of the oil sent in  that wagon and found it to be genuine mustard oil,  free from  any  adulteration.   Any such  certificate  about  the purity  of  the  mustard  oil sent is  not  proved  to  have accompanied  the railway receipt and to have been  shown  or made  over to Dr. Bagui, or to the Police Officers  who  had accompanied  him at the time.  Letter Exhibit R was sent  on behalf of appellant no.  I to the Secretary of the U. P. Oil Millers  Association  at 10 a.m., on January 3,  1955.   The letter said: "Please  arrange  for  sample and test  through  the  proper authorities  concerned, so that we may take the delivery  of oil  only  if  it  is found  pure  on  analysis."  Any  such statement can hardly be sufficient to rebut the  presumption that  the  oil which was consigned by appellant  no.   I  to itself  at Calcutta was stored for sale.  The letter  itself does not say that the oil will not be sold.  It simply  says that  they  may take the delivery of the oil only if  it  is found pure on analysis.  What would be done to the oil if it is  found to be impure, is not stated.  The Association  was not  in any arrangement with the Corporation which  had  the sole authority to take action with respect to the adulterat- ed  mustard oil.  The Enforcement Branch of the  Police  had nothing  to do with it.  In the circumstances, all  the  so- called arrangement with the Enforcement Branch of the Police and  the  consequent letters, similar to letter  Exhibit  R, seem to be a subtle device to make things difficult for  the proper  authorities responsible to see that mustard oil  fit for sale be pure. It  is  obvious  in  this case  itself,  how  this  sort  of arrangement  has  provided an occasion for the  coming  into existence  of the alleged fourth sample of mustard oil  from the  appellants’  tank wagon and  the  non-committal  report about  its  purity.  We are therefore of opinion  that  this letter  Exhibit  R,  or the arrangement which  led  to  such communication, does not establish 672 that  the mustard oil in the wagon which will  be  otherwise presumed  to be stored for sale by the appellants,  was  not

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stored for sale. We  are  therefore  of opinion that the  conviction  of  the appellants  of  the  offence  under s. 462  of  the  Act  is correct.  The appeal therefore stands dismissed.                      Appeal dismissed.