John Beaumont, Kt., C.J.
1. This is an application in revision against the conviction of the accused by the Chief Presidency Magistrate under Section 272 of the Indian Penal Code, 1860. The conviction, in my opinion, proceeds on two serious errors. Section 272 provides that whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished as therein mentioned. So that, it is essential to show that an article of food or drink has been adulterated, and that it was intended to sell such article, or that it was known that it would be likely to be sold, as food or drink.
2. Now, here the evidence was that Dr. Divekar, Senior Medical Inspector, 'D' Ward, went up to the terrace of a building, and found one Ganpatsingh spreading used tea leaves on the terrace. He had a packet of white powder with him. It has been found as a fact that Ganpatsingh was the servant of the accused. The accused arrived on the scene, and I will assume that the used tea leaves and the white powder were the property of the accused. Dr. Divekar then collected some of these used tea leaves, and sent a sample to the Municipal Analyst, and he produced a report of the analyst, which is exhibit D. The report is to the following effect :
The sample of tea was on examination found to be not genuine and it contained some cowdung pillets, fibre particles, etc. as foreign ingredients and is unfit for human consumption. The sample of white powder is commercial sodium carbonate
3. Now, in the first place, it seems to me that there is no evidence whatever that these used tea leaves were to be used or sold for human consumption. 'Whether the suggestion is that these foreign ingredients had originally formed part of the tea from which the used tea leaves were derived, I do not know. I should imagine that cowdung pillets would have dissolved in the course of boiling the tea. Possibly the suggestion is that the used tea leaves were to be dried and sold again mixed with cowdung pillets, whether to add to the weight or give flavour to the mixture, I do not know. We have really no evidence at all that these used tea leaves were to be used again for the purpose of food or drink. The analyst does not seem to have discovered that the tea leaves had been used. He says that he had analysed the sample of tea. At any rate, there is not a particle of evidence that the mixture which was sent to the analyst was intended to be sold as an article of food or drink, and on that ground the conviction is plainly bad.
4. The second error is one of procedure. The Municipal Analyst was not called as a witness. Dr. Divekar put in his report, which is exhibit D, and that was accepted by the learned Chief Presidency Magistrate as evidence. It is not evidence. The Municipal Analyst, who made the report, should have been called as a witness in order to prove that the contents of the report were true. The case does not fall within Section 510 of the Criminal Procedure Code, 1898, which provides that any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence. Here the analyst is not an Analyser to Government. He is an analyst to the Municipality, and his report, therefore, does not fall within Section 510 of the Criminal Procedure Code. Therefore, there is no evidence in this case that the article in question contained injurious matter, and was unsafe for human consumption.
5. The rule, therefore, will be made absolute and the conviction set aside. Bail bond to be cancelled.
6. I agree.