M/S. Madan Mohan Damma Mal Ltd. &
ANR Vs. The State of West Bengal & ANR  INSC 219 (24 November 1960)
DAYAL, RAGHUBAR IMAM, SYED JAFFER SARKAR,
CITATION: 1961 AIR 1013 1961 SCR (2) 664
Food Adulteration--Storing adulterated oil
for sale--Presumption, rebuttal of--Calcutta Municipal Act, 1951 (W.B. XXXIII
of 1951), s. 462.
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
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 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 appellant 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
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
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 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 crossexamination, 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, SubInspector, 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 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 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 adulterated 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 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.