Raghubar Dayal, J.
1. This is an appeal by special leave against the order of the Calcutta HighCourt affirming the conviction of the appellants Messrs. Madan Mohan Damma MalLtd., and Om Prokash Manglik, its Manager, under section 462 of the CalcuttaMunicipal Act, 1951 (W. B. XXXIII of 1951) hereinafter called the Act.
2. The facts leading to this appeal are that Messrs. Madan Mohan Damma MalLtd., (hereinafter called appellant No. 1) sent a consignment of mustard oil,about 499 maunds in weight, from Firozabad, the place of manufacture, toitself, at Calcutta, on December 25, 1954, in tank wagon No. 75612. This wagonwas placed at the Pathuriaghat siding at Calcutta at about 8.45 a.m., onJanuary 3, 1955. Dr. Nityananda Bagui, Food Inspector of the CalcuttaCorporation, accompanied by certain police officers, went to that siding andtook three samples of mustard oil contained in this wagon, after arranging withOm Prokash Manglik, appellant No. 2, who was found near the wagon, the purchaseof 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 othertwo were kept by Dr. Bagui. He sent one of them to the Public Analyst forexamination, the same day. Ashit Ranjan Sen, the Public Analyst, examined theoil contained in that phial on January 3, 1955, but could not come to anypositive opinion about its purity. Dr. Bagui, however, seized the tank wagonthat evening, sealed it with the Corporation's seal and left it in the custodyof appellant No. 2. The oil in the tank was allowed to be removed to the godownof the appellants on January 6, 1955. The lock of the godown was then sealedwith the seal of the Corporation. Mr. Sen reported on January 4, 1955, that theoil was adulterated. He sent a detailed report about the result of theexamination on January 24, 1955. On receipt of the report about the mustard oilbeing adulterated, Dr. Bagui filed a complaint against the appellants onFebruary 4, 1955, with respect to their selling and keeping for sale mustardoil, a sample of which was found on analysis to be mustard oil which wasadulterated with groundnut oil.
3. During the course of the trial, the trial Court, on an application onbehalf of the appellants, ordered the despatch of the third sample phial of theoil in the custody of the Corporation's Health Officer, to the Director ofHealth Services, Government of West Bengal, for analysis and report. Thissample was analysed by Dulal Chandra Dey, Court Witness no. 1, and found to beadulterated with groundnut oil. The report of the Analyst was, however, sent tothe Court under the signature of Dr. S. K. Chatterjee, D. W. 2, Deputy Directorof Health Services, Government of West Bengal.
4. The appellants appear to have sent the sample of oil in their possessionto 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 isconsidered to be free from adulterants such as sesame, groundnut and linseedoil'. This report, however, has not been proved.
5. The Deputy Commissioner of Police, Enforcement Branch, Calcutta, sent asample 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, examinedthis 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 ofgenuine mustard oil. This report does not establish that the sample was of puremustard oil. Sri Mitra's reply to the query from the Deputy Commissioner ofPolice for clarification, makes this very clear. It is :
'But, unless conclusive evidence of the presence ofa foreign oil, corroborated in some instances by the figures of the usual oilcontents, is obtained, the sample is not and cannot be declared adulterated. Inthe present case the sample of mustard oil has already been examinedexhaustively and has been certified as 'approximating to standards' but not asgenuine. The legal implication of the expression is that the sample will havethe benefit of doubt.'
6. Further, there is no good evidence on the record to establish that thesample sent to Sri Mitra was a sample from the appellants' tank wagon.
7. 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. Thereseems to be no good reason for the police taking a sample of oil for thepurpose 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 theappellants, appears to have been that he himself had taken four samples of themustard oil in question and that one of those samples was sent to theEnforcement Branch. Dr. Bagui denied that he had taken four samples of themustard oil, His statement is fully corroborated by the statement of KalidasGanguli, Sub-Inspector, Calcutta Enforcement Breach, Police Department, who hadaccompanied Dr. Bagui on the occasion. He stated that the Corporation FoodInspector took three samples and the police took the one sample which wassealed with the Corporation seal. We are not satisfied that the police actuallytook one sample of the oil and had it sealed with the Corporation seal asdeposed to by Kalidas Ganguli.
8. The Courts below found on the evidence that the mustard oil in theappellants' tank wagon was adulterated with groundnut oil, that the appellantswere in possession of that oil and had stored that oil for sale, in view of thepresumption arising under sub-section (4) of section 462 of the Act, and whichhad not been rebutted on behalf of the appellants. Learned counsel for theappellants had questioned the correctness of these findings.
9. We have considered the evidence in connection with the analysis of thesamples of mustard oil by the Chemists. Ashit Ranjan Sen, P.W. 2, PublicAnalyst, 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 degreeCelcious was 60.4 and the Bellier's test for groundnut oil was positiveinasmuch as it gave turbidity at 28 degree Celcious. Court Witness no. 1, DulalChand Dey, who actually analysed the sample sent by the Court, also found itadulterated, on the basis of his obtaining the saponification value to be175.5, iodine value to be 106.8 and the appearance of turbidity at 27 degreeCelcious. He also found indication of the presence of a small amount of linseedoil. 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 themustard oil in the appellants' tank wagon was adulterated is correct. It is notestablished that the sample of mustard oil sent to Sri Mitra by the DeputyCommissioner of the Enforcement Branch contained mustard oil from this tankwagon. The opinion of Sri Mitra about the nature of that sample therefore doesnot go against the opinion of Sri Sen and Sri Dey that the mustard oil analysedby them was adulterated with groundnut oil.
10. The other contention for the appellants is that they were not inpossession of the oil when the sample of mustard oil was taken by Dr. Bagui andthat therefore no presumption under sub-section (4) of section 462 of the Actcan be raised against them for holding that the oil was stored for sale. Itappears from the judgment of the High Court under appeal that it was notdisputed at the hearing before it that the appellants were in possession of themustard oil whose sample had been taken. On the evidence on the record we areof opinion that they were in possession of the mustard oil. The consignment ofoil was from the manufacturing firm, appellant no. 1, to itself at Calcutta.Its manager, appellant no. 2, took delivery of the wagon from the railwayauthorities on January 3, 1955. There is no direct evidence to the effect thatsuch delivery was taken prior to Dr. Bagui's taking sample of the mustard oil.But the circumstances, in our opinion, conclusively establish that appellantno. 2 had taken delivery of the wagon prior to Dr. Bagui's visit and takingsamples of oil from the wagon. Appellant no. 2 is not expected to and could nothave got the wagon opened for the purpose of taking samples of oil, if he hadnot taken delivery of the wagon from the railway authorities. The railwayauthorities themselves would have seen to it that nobody tampers with thecontents of the wagon in its charge. Appellant no. 2 must have therefore paidthe freight for the wagon prior to Dr. Bagui's visit and this obtained deliveryof the wagon. It was thereafter that he got control over the wagon and was in aposition to take out oil from it or to permit anyone else to take out oil. Wetherefore hold that the appellants were in possession of the oil in the tankwagon when Dr. Bagui took samples of the oil from it.
11. The main contention, however, for the appellants is that the presumptionthat the mustard oil was stored for sale by the appellants, under sub-section(4) of section 462 of the Act, is rebuttable and has been fully rebutted inview of certain arrangements between the U.P. Oil Millers Association and theDeputy Commissioner of Police, Enforcement Branch, and the letter of theappellants to the Secretary of the Association (Exhibit R) on January 3, 1955.We have considered the various documents which have been referred to in supportof the arrangement between the Association and the Deputy Commissioner,Enforcement Branch, but do not find therein anything which would restrainlegally the appellants from selling the oil even if it is found to beadulterated. The proceedings of the meeting of the U.P. Oil Millers Associationheld on June 9, 1954, and attended by the Deputy Commissioner and AssistantCommissioner of the Enforcement Branch show that no such agreement has beenarrived at. Even the suggestion of the Deputy Commissioner that all the membersof the Association should write to their respective mills that all the quantityof oil which would be imported should at first be passed and then made deliveryof, was not fully accepted, the members simply stating that they always andinvariably imported pure mustard oil. It was, however, decided that the samplesof oil be taken from the next morning, i.e., June 10, 1954. We however findthat in November 1954 the U.P. Oil Millers Association wrote to appellant no. 1that according to the decision of the Deputy Commissioner of Police,Enforcement Branch, every application to draw sample and test it should beaccompanied by a certificate signed by the Chemist or the Manager or theProprietor of the Mills to the effect that the mustard oil in the tank wagonwas pure mustard oil free from Argemoni, linseed or any other adulteration, andthat in February 1955 and April 1955, the Deputy Commissioner of Police,Enforcement Branch had to remind the U.P. Oil Millers Association that itshould advise all its members that whenever they indent any mustard oil fromoutside Bengal, they would see that the railway receipts be accompanied by aclear certificate of examination from the Chemist of the factory who examinedthe same. Such directors from the Deputy Commissioner of Police, EnforcementBranch, do not appear to have had any great effect, as the consignment of oilreceived by the appellants was without any such certificate. Mahendra KumarGupta, D.W. 1, Chemist of the appellants' mill, deposed however that he hadtaken the sample of the oil sent in that wagon and found it to be genuinemustard oil, free from any adulteration. Any such certificate about the purityof the mustard oil sent is not proved to have accompanies the railway receiptand to have been shown or made over to Dr. Bagui, or to the Police Officers whohad accompanied him at the time. Letter Exhibit R was sent on behalf ofappellant no. 1 to the Secretary of the U.P. Oil Millers Association at 10a.m., on January 3, 1955. The letter said :
'Please arrange for sample and test through theproper authorities concerned, so that we may take the delivery of oil only ifit is found pure on analysis.'
12. Any such statement can hardly be sufficient to rebut the presumptionthat the oil which was consigned by appellant no. 1 to itself at Calcutta wasstored 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 foundpure on analysis. What would be done to the oil if it is found to be impure, isnot stated. The Association was not in any arrangement with the Corporationwhich had the sole authority to take action with respect to the adulteratedmustard oil. The Enforcement Branch of the Police had nothing to do with it. Inthe circumstance, all the so-called arrangement with the Enforcement Branch ofthe Police and the consequent letters, similar to letter Exhibit R, seem to bea subtle device to make things difficult for the proper authorities responsibleto see that mustard oil fit for sale be pure.
13. It is obvious in this case itself, how this sort of arrangement hasprovided an occasion for the coming into existence of the alleged fourth sampleof mustard oil from the appellants' tank wagon and the non-committal reportabout its purity. We are therefore of opinion that this letter Exhibit R, orthe arrangement which led to such communication, does not establish that themustard oil in the wagon which will be otherwise presumed to be stored for saleby the appellants, was not stored for sale.
14. We are therefore of opinion that the conviction of the appellants of theoffence under section 462 of the Act is correct. The appeal therefore standsdismissed.
15. Appeal dismissed.