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Corporation of Calcutta Vs. Calcutta Wholesale Consumers Co-operative Society Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 215 of 1968
Judge
Reported inAIR1970Cal120,1970CriLJ340
ActsPrevention of Food Adulteration Act, 1954 - Sections 2, 9, 7, 13, 16, 20(1) and 23; ;Evidence Act, 1872 - Sections 3 and 5; ;Calcutta Municipal Act, 1951 - Sections 30 and 585; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 190(1) and 200
AppellantCorporation of Calcutta
RespondentCalcutta Wholesale Consumers Co-operative Society Ltd. and ors.
Appellant AdvocateSunil Kumar Basu, Adv.
Respondent AdvocateDilip Kumar Dutt, Adv.
DispositionAppeal dismissed
Cases ReferredP. Govinda Pillai v. V.G.N. Fadamanabha Pillai
Excerpt:
- .....the tests as prescribed in standard a. 18.06(i) & (iii) under appendix b of p. f. a. rules for foodgrains meant for human consumption have not been performed by the public analyst in the present case. matar dal is obviously a food grain and these tests shall apply in its case. hence the analysis of the sample is incomplete and as such the public analyst's opinion is unacceptable.in this view of the matter the accused persons are found not guilty under section 16(l)(a)(i)/7 of p. f. a. act 1954 and accordingly acquitted and set at liberty forthwith.'2. before i go into the merits of the appeal, i should point out that the petition of complaint was filed by the food inspector as complainant under the direction and with the consent of the health officer of the calcutta corporation......
Judgment:

Bagchi, J.

1. This is an appeal on taking special leave under Section 417(3) of the Code of Criminal Procedure at the instance of the Calcutta Corporation against the order of the acquittal passed by the Municipal Magistrate, Calcutta acquitting the respondent of an offence punishable under Section 16(1)(a)(i) read with Section 7 of the Food Adulteration Act, 1954. The accused respondent No. 1 is the Calcutta Wholesale Consumers Cooperative Society Ltd. (Retail Section) which is the main accused. Timir Haran Sen Gupta, Executive Officer and Deputy Registrar of the organisation is the accused no. 2 and Niswanath Bhattacharjee, Sales-in-charge and seller of the organisation is the accused no. 3. From the records it appears that the complainant Corporation of Calcutta presented through Dr. R. Chandra, Food Inspector, a petition against the accused respondents before the Court of the Third Presidency Magistrate of the First Class specially empowered to take cognizance under Section 190 (1) (a) of the Code of Criminal Procedure (Cause Title of the petition of complaint). A Presidency Magistrate is not a Magistrate of the First Class. He is a Magistrate of no-class, but he is a Magistrate sui juris as Presidency Magistrate. Under the fifth column in the petition of complaint the relevant portion runs as follows :--

'The humble petition of Dr. R. Chandra Food Inspector, appointed by the State Government under Section 9 of the P. F. A. Act for the whole of Calcutta, complainant above-named.'

The relevant allegation in paragraph (1) of the complaint is as follows :--

'That on 15-9-1965 the complainant inspected the shop of accused No. 1 of which accused No. 2 is Executive & Deputy Registrar and accused No. 3 is sales-in-charge and seller situated at 21 Chittaranjan Avenue and found an article of food namely Matar Dal stored, exposed for sale. Sample was purchased from accused no. 3 of the said food bearing F. I. serial No. 005348 after due observance of all the legal formalities and one part of the said sample was made over to the accused No. 3 another part was sent to the Public Analyst being Lab. Regd. No. 896 and the remaining part is with the complainant for future reference. The Public Analyst opined that the said food is adulterated and unfit for human consumption as per report of analysis in the Scheduled form being Report No. S/65/106, a true copy of the same is attached herewith. The original will be produced during the trial.'

Paragraph (2) reads as follows :--

'That your petitioner duly submitted the record of his inspection of the present case to the Health Officer, Corporation of Calcutta and under his direction and with his consent, the present complaint is filed in court.

In the circumstances, the complainant prays that your honour will be pleased to issue summons against the accused persons named above for offence under Section 16(1)(a)(i) of the P. F. A. Act, 1954 read with Section 7 of the said Act and to try the said accused persons in accordance with law.'

The accused persons were summoned by the learned Magistrate. Evidence was gone into. The learned Magistrate upon considering the report of the analyst observed as follows :--

'It appears from the Analyst's report (Ex. 6) that the tests as prescribed in standard A. 18.06(i) & (iii) under Appendix B of P. F. A. Rules for foodgrains meant for human consumption have not been performed by the Public Analyst in the present case. Matar dal is obviously a food grain and these tests shall apply in its case. Hence the analysis of the sample is incomplete and as such the Public Analyst's opinion is unacceptable.

In this view of the matter the accused persons are found not guilty under Section 16(l)(a)(i)/7 of P. F. A. Act 1954 and accordingly acquitted and set at liberty forthwith.'

2. Before I go into the merits of the appeal, I should point out that the petition of complaint was filed by the Food Inspector as complainant under the direction and with the consent of the Health Officer of the Calcutta Corporation. Section 20(1) of the Prevention of Food Adulteration Act, 1954 reads as follows :--

'No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in court a copy of the report of the public analyst along with the complaint.'

3. It is clear from the petition of complaint that the complainant is the Food Inspector but the cause title of the petition of complaint shows that it is the Calcutta Corporation. The Food Inspector was not authorised by the Calcutta Corporation, a local authority, but was authorised by the Health Officer of the Calcutta Corporation. Under Section 20(1) of the Prevention of Food Adulteration Act, 1954 any person authorised by a local authority may file a petition of complaint for prosecution of an offence under the Act. In the present case, the petition of complaint was filed by Dr. R. Chandra, the Food Inspector under the direction and with the consent of the Health Officer of the Calcutta Corporation. The Health Officer of the Calcutta Corporation is not a local authority. The complainant Dr. R. Chandra is the Food Inspector appointed by the State Government under Section 9 of the Prevention of Food Adulteration Act for the whole of Calcutta and he describes himself in paragraph 5 of the petition of complaint as 'complainant abovenamed', but the cause title of the petition of complaint reads:

'Complainant Corporation of Calcutta through Dr. R. Chandra. Food Inspector'.

The petition of complaint, therefore, bristles with rigmarolic statements. Who is the complainant?; Calcutta Corporation, Dr. R. Chandra, Food Inspector or the two signatories and one having his facsimilie rubber stamp impression at the bottom of the reverse page of the petition of complaint. The petition of complaint contains on the reverse side at the bottom the following :--

APPROVED CONSENTEDIllegible. Illegible.D. H. O. No. 1. Health Officer

Then a facsimilie impression -- 'Illegible.

Commissioner'.

Now if the Calcutta Corporation is the complainant then under Section 585 of the Calcutta Municipal Act read with Section 30 of the Act it is the Commissioner who alone for and on behalf of the Calcutta Corporation can present a petition of complaint for violation of any law under the Calcutta Municipal Act and the rules, regulations and bye-laws made thereunder. In a Division Bench judgment (unreported) Criminal Reference No. 1 of 1967 under Section 432 Cr. P. C., Corporation of Calcutta v. Biva Bati Basu, judgment delivered on December 23, 1968 (Cal); it has been held that the Commissioner is required to subscribe his own signature on a petition of complaint presented before a Municipal Magistrate for and on behalf of the Calcutta Corporation asking the Magistrate to take cognizance of an offence against the violator of the law under the Calcutta Municipal Act and the rules and regulations framed thereunder. Facsimilie rubber stamp impression of the signature of the Commissioner on petition of complaint is not a valid petition of complaint upon which the Magistrate can take cognizance under Section 200(a) read with Section 190(l)(a) of the Code of Criminal Procedure. The Health Officer is a consenting party and D. H. O. I is the approving party and the Commissioner is a party without any statement as to what part he had taken while his facsimilie rubber stamp impression was set forth above the typed word 'Commissioner' on the petition of complaint. If the facsimilie rubber stamp impression of the Commissioner was affixed purporting to be a complainant on behalf of the Calcutta Corporation then this complaint was not a complaint according to law and upon that complaint the learned Magistrate had no jurisdiction to take cognizance. Again, if it is a complaint by Dr. Chandra who is a Food Inspector appointed by the State Government for the entire area of Calcutta Corporation, he was not authorised either by the Calcutta Corporation or by the State Government to present the petition of complaint. The beauty of the thing is that Dr. R. Chandra did not subscribe his signature at the bottom of the petition of complaint, but he described himself in paragraph 5 of the petition of complaint as the 'complainant above-named', meaning Dr. Chandra, the complainant. So, the petition of complaint filed by Dr. Chandra was an unauthorised petition and was not in conformity with the provisions of Section 20(1) of the Prevention of Food Adulteration Act, 1954.

4. Mr. Bose, learned counsel for the appellant, at the close of his argument placed before me a true copy of the resolution of the Calcutta Corporation. But that resolution in the facts of the present case, does not help Mr. Bose. The complainant is Dr. Chandra. He filed the petition of complaint under the direction and with the consent of the Health Officer, but the resolution says that it is the Health Officer who is to file a petition of complaint. He cannot authorise or consent to the filing of the petition of complaint by the Food Inspector. Therefore, the resolution cannot cure the most glaring illegality in the petition of complaint as presented before the learned Magistrate. The learned Magistrate, therefore, in view of Section 20(1) of the Prevention of Food Adulteration Act, 1954 had no jurisdiction to take cognizance of the offence upon the petition of complaint that was filed by the complainant Dr. R. Chandra, Food Inspector appointed by the State Government of the entire area of the Calcutta Corporation.

5. Mr. Bose contended that there was no evidence that matar dal was a 'food grain' and that matar dal was a pulse and that the analyst's report relating to matar dal as a pulse should have been accepted by the learned Magistrate when matar dal, a pulse, could not be a 'food grain''. Mr. Bose further submitted that there was no evidence that matar dal was a 'food grain'. He, however, placed a decision before me of the Full Bench of the Kerala High Court in the case P. Govinda Pillai v. V.G.N. Fadamanabha Pillai, : AIR1965Ker123 and relied upon paragraph 5 of the decision. In the course of his argument Mr. Bose finding that paragraph 5 of the said judgment would not support his contention submitted that he would not rely on that paragraph. That paragraph 5 is very much illuminating. There the question was whether Khasari dal was an article of food. In that case no evidence was adduced to prove that Khasari dal was a pulse and as such an article of food. Their Lordships of the Full Bench observed that no evidence was required to establish that Khasari dal was a pulse and that it was an article of food but their Lordships referring to Modi, observed that Khasari dal was a variety of pulse. So, Mr. Bose's contention that without evidence the learned Magistrate was not to have held that matar dal was a 'food grain' is clearly negatived by the observations of their Lordships of the Full Bench in paragraph 5 of the report. That is why Mr. Bose at one time of his argument submitted that he was not relying on paragraph 5 of the report, but paragraph 5 of the report lays down what I have already observed. Here the learned Magistrate who is presumed to have the common knowledge of human affairs and of the world considered matar dal a food grain, and therefore, held that the analyst ought to have tested the sample of matar dal according to the standard laid down in the rules, being no. A 18.06 standard in the rules made under the Prevention of Food Adulteration Act, 1954 and that such test having had not been made by the analyst, matar dal, a food grain, could not be held to be adulterated since there was no evidence of the analyst that he carried out the test laid down by the standard A 18.06(i) and (ii). Mr. Bose submitted for the appellant that the learned Magistrate's finding that matar dal was a 'food grain' was not only based on no evidence but was inherently unacceptable since matar dal was 'pulse' and that the standard of test regarding pulse had been made by the analyst and that no exception to the analyst's test regarding pulse could be taken by the accused. Mr. Bose submitted drawing my attention to the meaning of the word 'grain' in Oxford Dictionary that grain means a full grain, but here the question is whether pulse is a 'food grain'. If unbroken pulse is pulse then a broken pulse grain is also 'pulse'. If a broken pulse is 'pulse' then a broken pulse, being an article of food, is a 'food grain.' Food grain is a generic term and pulse is a species of such 'food grain'. The analyst was to have carried two tests following two standards, standard for testing pulse and standard for testing 'food grain'. If he would have done so, there could have no room for taking any exception. But in my view, pulse as a broken matar dal falls within the generic expression 'food grain.' Therefore, the additional test as under A 18.06(i) and (ii) should have been carried out by the analyst. This having not been done the learned Magistrate was justified in holding that the prosecution failed to establish its case beyond reasonable doubt against the opposite parties.

6. Mr. Bose submitted that it was not the case in the defence of the accused that matar dal was a food grain, and therefore the learned Magistrate was not justified to hold that matar dal was a food grain. I am sorry I cannot accept the rationality of this argument. The accused is to plead nothing in defence. If the materials on the record justify a finding in favour of the accused no matter whether the accused made a defence of a specified type or not, the court would be justified in finding the accused not guilty even though he did not take specific ground of defence at the trial. The learned Magistrate, as I have already observed, had not considered other evidence. So Mr. Bose wanted me to go through the entire evidence and to come to a finding that the learned Magistrate was wrong in acquitting the accused respondent. The moot question is whether matar dal is a 'food grain'. The learned Magistrate found that it is a 'food grain' and I find that it is a 'food grain'; and because it is a food grain, the analyst ought to have carried out the tests as under A.18.06(i), (ii) of the rules. He having had not done, so, and the prosecution in the petition of complaint relied only on the analyst's report, so there could be no room for doubt that the prosecution failed to establish its own case on the materials appearing in the analyst's report beyond reasonable doubt. Accordingly, I find that the learned Magistrate rightly acquitted the accused respondent of the offences charged.

7. The appeal is, accordingly dismissed and the order of acquittal passed by the learned Magistrate is upheld. I should observe that the learned Magistrate had no jurisdiction to entertain the petition of complaint.


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