S.N. Guha Ray, J.
1. The first appellant Messrs. Kothari and Co., is a firm of which appellants Nos. 2 and 3 are partners. The firm is a wholesale dealer in spices and has its godown at 14, Portuguese Church Street, Calcutta. On the 10th July 1954, Dr. A.C. Biswas, witness No. 1 for the prosecution, a Food Inspector of the Corporation of Calcutta visited the godown of the firm and found a large stock of black pepper in two separate lots. Appellants Nos. 2 and 3, the partners of the firm told him that thestock was meant for sale. The Food Inspector then purchased 6 chhataks of black pepper from each lot, divided each of the two samples into three equal parts, handed over one part of each to the partners of the firm, kept one part of each to himself and sent the other part of each to the Public Analyst for examination and report. Dr. Ghosh, witness No. 2 for the prosecution analysed one sample and Dr. Chatterjee the other. Their reports are Exs. 5 and 6 respectively. According to Ex. 5 the sample; is devoid of kernels to the extent of 42 per cent.and the total ash content was 5.2 per cent. According to Ex. 6 the sample was devoid of kernels to the extent of 33 per cent, and the total ash content was 6.1 per cent. On receipt of these reports the entire stock of black pepper was seized and the packets containing them were sealed and kept in the custody of the appellants on their executing necessary bonds. The prosecution case is that the appellants stored for sale and sold black pepper in two lots, one of which was found to contain berries devoid of kernels to the extent of 42 per cent. and the other of which contained berries de void of kernels to the extent of 33 per cent, and thereby they committed an offence under Section 461 read with Section 537 of the Calcutta Municipal Act, 1951.
2. The defence was a plea of not guilty to the charge, the case of the accused being that if the sample contained a large percentage of berries without kernels, that was a natural phenomenon and not the result of any processof abstraction by human agencies so that it did not come within the mischief of the definition of adulterated food in Section 5(l)(c)(iii).
3. The learned Magistrate found that kernels had been squeezed out from the berries which were without kernels and therefore the black pepper was adulterated. He accordingly convicted all the appellants and fined each of the partners Rs. 300 under Section 461 read with Section 537 of the Calcutta Municipal Act, but no separate sentence was passed on the firm.
4. The revisional petition was only for stay of the proceedings for forfeiture of the black pepper seized and those proceedings have been stayed pending the disposal of the appeal.
5. The only question for decision in this appeal is whether on the materials on the record it has been proved that the black pepper, stocked in two lots, from each of which a sample was taken is adulterated. In the definition of adulterated food in Section 5(1) (c), we are concerned with only two clauses, namely, Clause (iii) and Clause (viii). Clause (iii) defines adulterated food as food from which any normal constituent of the article has been wholly or in part abstracted and Clause (viii) as food when it is not of the nature, substance or quality which it purports or is represented to be. Mr. Mukherjee on behalf of the appellants objects to the Court taking into consideration Clause (viii) because the trial Court did not do so and the appellant had no opportunity of meeting that charge. This objection to my mind is wholly untenable. The charge which the appellants were called upon to meet is that they stored for sale and sold adulterated black pepper which is an article of food as defined in Section 5(33). The fact that the trial Court confined itself in its judgment to only one clause of the definition of adulterated food does not mean that the appellate Court is bound to follow in its footsteps. The charge was just the same then as it is now and there is no question of the appellants being now asked to meet the alternative charge. The materials were all on the record and the only question is whether either or both of these definitions are satisfied by the black pepper in question. As the learned Advocates have fully argued the point before me, there is no question of prejudice to the appellant.
6. That the appellants were in possession of the black pepper from which samples were taken on the 10th July 1954 by the Food Inspector, witness No. 1 for the prosecution, and that they were wholesale and retail dealers of black pepper are facts beyond dispute. It was argued on behalf of the appellants that what they sold to the Food Inspector was not black pepper but light pepper at a lower price. The price for 6 chhataks from one lot was Re 1-2-0 and that for 6 chhataks from the other lot was Re. 0-15-0 only. According to the Food Inspector black pepper used to sell at the time at Rs. 4-8-0 and at Rs. 5 per seer. The price of 6 chhataks at Rs. 4-8-0 per seer is Re. 1-11-0 and at Rs. 5 per seer is Re. 1-14-0. The prices char-ged, however, were much less. From this Mr.Mukherjee argues that what was sold could not possibly have been sold as black pepper and it must nave been sold as light pepper. In support of tnis contention he relies in the first place on a Commodity Market Quotation in an issue of the Hindusutan standard lor different varieties of pepper, certain statements in Woodman's F'oud Analysis and Alien's Commercial Organic Analysis and also on the evidence of witness No. 2 for the defence. The newspaper quotation speaks of 'Light' pepper. Woodman at p. 394 pays:
''An inferior or low-grade pepper, such as classes C and D of Achecn pepper, containing a large proportion of light benies and empty shells, may be substituted in part for the high-grade Penang or Singapore spice, especially when sold under a definite trade name.'
Alien at pp. 171 and 172 merely says that the commercial value of pepper depends upon the weight of the peppercorns and gives the weight in grms. of 100 berries of the chief commercial varieties of pepper which, however, do not include anything called light pepper. D. W. 2, a partner in Malukar Trading Co., at Alleppy in Travancore-Cochin says that light variety means peppers without kernel. In his cross-examination he says that there is no literature on pepper. That together with the fact that though he was not known to the appellants he was served with a summons on behalf of the defence at the house of a friend of his in Calcutta does not inspire confidence in his statement. Besides, even light pepper is after all, a variety of black pepper and witness No, 1 for the prosecution distinctly states in his cxamination-in-chief that the appellant said that they stored black pepper for sale. Now, if light pepper which is a cheaper variety of black pepper satisfies the definition of adulterated food, it will be no defence to say that it was sold at a lower rate as light pepper. The all-important question, therefore, in the case is if the stuff was adulterated.
7. Dr. Ghosh, witness, No. 2 for the prosecution found on an analysis of one sample that 42 per cent, of the berries were devoid of the kernels and the total ash content was 5.2 per cent. According to Dr. Chatterjee, witness No. 3 for the prosecution the sample which he examined under a dissecting microscope showed 33 per cent, of berries to be devoid of kernels, the total ash content being 6.1 per cent. Although the witnesses do not expressly state that they opened up the berries for finding out if they were devoid of kernels, it cannot but be presumed that they must have done so, for otherwise it would have been impossible for them to say if any berry was devoid of kernels or not. Mr. Mukherjee on behalf of the appellants did not dispute the fact that the samples were devoid of kernels, one to the extent of 42 per cent, and the other to the extent of 33 per cent, as stated by the two Public Analysts, namely, witnesses Nos. 2 and 3 for the prosecution. There is no reason why they should be disbelieved on the point. It must accordingly be found thatthe samples were devoid of kernels, one to the extent of 42 per cent and the other to the extent of 33 per cent.
8. The question that next arises is whether tne berries were devoid ot kernels because the kernels were deliberately abstracted from them or because the kernel was absent as a result of a natural process in which tne kernel does not develop at all. Dr. K.N. Bagchi, defence witness No. 3 who was at one time Chemical Examiner of the Government of West Bengal and now the Professor of Organic Biochemistry in Calcutta National Medical College-says that sometimes the kernels do not develop properly and the berries remain practically hollow without much kernel, just like Chitta paddy and that this is a natural phenomenon and not due to any action on the part of man. On behalf of the appellants certain authorities such, as Meyer and Anderson's Plant Physiology, pp. 657 to 658, Heald's Manual of Plant Diseases, pp. 40-41 were relied on in support of the contention that seeds sometimes do not form within the fruit as a result of certain natural causes. Though seeds may not form at all or form only in part in certain events, the percentage of such failure must necessarily be very low except when there is more or less a general failure of crops. The evidence of Dr. Bagchi, D.W. 3, is, as already stated not that there will be a complete absence of kernel but that there will not be much kernel and the berries will be practically empty. In this case, one sample discloses 42 per cent, without kernels and the other 33 per cent, without kernels. In other words, in one sample there were 58 per cent. and in the other 67 per cent, of berries with kernels. That rules out on the one hand a general failure of the formation of seeds or kernels. On the other hand, this high percentage of berries with kernels would also rule out natural causes being responsible for the absence of kernels in the berries. Along with this has to be considered the question whether human agencies could abstract the kernel without breaking up the pericap. The processes by which the kernel is removed from the fruit for obtaining white pepper are according to Mr. Mukher-jee such as are bound to break up the pericap. The Public Analyst examined on behalf of the Corporation could not throw any light on the process by which white pepper which is undoubtedly the kernel of the berries is extracted. Woodman's Food Analysis, pp. 389-90 speaks of two processes in both of which rubbing with the hands forms a step, but whether this rubbing will have the outer husk more or less Intact or in its original shape is not stated there. Alien's Commercial Organic Analysis, Vol. VII, p. 171 says that black pepper is composed of the entire berries, with the pulp adhering, gathered before they are quite ripe, and dried in the sun and white pepper consists of the decorticated berries, or berries of which the bark has been stripped off. This also does not say if in stripping off the bark its shape must necessarily be disturbed. To my mind, the very fact that such a high percentage of the berries was without kernel in each sample is evidenceenough of human agencies being responsiblefor the abstraction of the kernels, whatever the process they might have adopted for this purpose. The black pepper, therefore, must be held to be adulterated within the meaning of the expression in Clause (iii) of Section 5(1) (c). But even, if for the sake of argument it is held that it does not satisfy this clause of the definition, it clearly satisfies Clause (viii) because black pepper consists according to Alien and other authorities of the entire berries, with the pulp adhering, and when the pulp or the kernel is missing, clearly it is not of the nature, substance or quality which it purports or is represented to be. Black pepper whether it is light black pepper or not has to be black pepper all the same and it ceases to be of the nature, substance and quality of black pepper when the kernel which forms an integral part of it has somehow or other disappeared from it. In this view, the two samples must both be held to be adulterated within the meaning of Clause (viii) of Section 5(1) (c) of the Calcutta Municipal Act.
9. The convictions, therefore, of the appellants must be upheld. The sentences are far from too severe and there is no ground for interference therewith. The appeal must accordingly be dismissed and the connected rule discharged. The stay order obtained in the Revision Case is vacated and the proceedings for forfeiture may now go on.