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Shipping and Clearing (Agents) Private Ltd. Vs. Corporation of Calcutta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case Nos. 336 and 337 of 1963
Judge
Reported inAIR1967Cal110,1967CriLJ329,70CWN1019
ActsPrevention of Food Adulteration Act, 1954 - Sections 7, 10(2) and 16
AppellantShipping and Clearing (Agents) Private Ltd.
RespondentCorporation of Calcutta and anr.
Appellant AdvocateNalin Chandra Banerjee, ;Lakshmi Narayan Dutta and ;Pranab Kumar Ganguly, Advs.
Respondent AdvocateJ.M. Banerjee and ;Hamesh Chandra Sen, Advs.
DispositionPetition dismissed
Cases ReferredGopalpur Tea Co. Ltd. v. Corporation of Calcutta
Excerpt:
- .....act governs all the foregoing words 'manufacture, store or expose'. therefore, he says that the word 'store' in section 7 read with section 16 should also be read there with the words added 'for sale'. the reason for hissaying so is that section 10(2) according to him should control the meaning and the interpretation of section 7 read with section 16, because section 10 confers the powers of food inspector to inspect places. it is therefore, natural to suppose that he will only be given the power to inspect such places for the purpose of the act and the purpose of the act on this point, and therefore, according to mr. banerjee the store must be a store 'for sale '.12. it is difficult to accept that argument in the same statute if the words used are sometimes 'stores' and sometimes.....
Judgment:

P.B. Mukharji, J.

1. The petitioners are Messrs. Shipping and Clearing (Agents) Private Limited. They obtained this Rule against the order of conviction under Section 7(i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 and a fine of Rs. 100 (one hundred), passed by the Presidency and Municipal Magistrate. Calcutta, on the 16th January 1963.

2. The facts of the case lie within a small compass. The offending article, namely, adulterated tea was found in the godown at No. 1, Satya Doctor Road. The Food Inspector took the sample of adulterated tea from the godown. It is found as a fact that Ramprosad Sukul, the second accused was the gate keeper and the durwan of the petitioner company at the said godown. This second accused is now absconding. The chemical analysis and the analyst's report confirmed that the tea was adulterated within the meaning of the Prevention of Food Adulteration Act having exceeded the permissible limits of crude fibre. The learned Magistrate found as a fact on the evidence that the second accused, Ramprosad Sukul now absconding opened the godown and that the food Inspector after taking the samples, made over two parts of the two samples, as required, to Ramprosad Sukul. It has also been found by the learned Magistrate that the petitioner who is accused No. 1 has a godown at the disputed premises and that accused No. 2 is its gate-keeper.

3. The defence was that the petitioner was not the owner of the godown and that they were not responsible for bringing the adulterated tea into that godown. Hence it is not liable for the offence under the Act.

4. Mr. Nalin Chandra Banerjee, learned Advocate for the petitioner rested his whole case in his argument before us on the assertion that the petitioner company as an owner of the godown could not be prosecuted under Section 7 read with Section 16 of the Act. His submission was that the petitioner was a clearing agent. In support of that submission he urged that the consignor was Totapura Tea Estate and the consignee was Nuddea Tea Company. In other words, Mr. Nalin Chandra Banerjee's submission is that the petitioner company was neither the consignor nor the consignee and had nothing to do with the tea and had no knowledge that the lea was adulterated and was therefore, not responsible for storing it at the godown.

5. His difficulties are many on the facts. The outstanding difficulty is that no one from this responsible limited company appeared asa witness to give any evidence on any point and produced no records of the company dealing with this tea or the bringing of this tea. Mr. Banerjee's first submission that the petitioner company let out the godown to somebody else is not borne out by the facts at all. There is no evidence from which it is at all possible to come to the conclusion that there was any letting out by the petitioner of this godown to a lessee to store that lessee's goods in that godown Nor is it in evidence that the petitioner company was not itself in possession of the godown or that it had lost possession to the person to whom it is now alleged to have let out the godown. On the contrary the fact on record in evidence is that it was the petitioner's gate-keeper and the durwan who was in full control of the godown opened the keys of the gate of the godown, and that it was he who led the Food Inspector into the godown for taking the sample From this the only inference which is possible is that the petitioner company was using its own godown to keep its own articles.

6. Now on this point, whether these articles were petitioner's articles or not, Mr. Banerjee for the petitioner submits that because the consignor and the consignee were different, therefore, the petitioner could not be held to have any knowledge that this tea was adulterated or not But, I his question cannot arise any more on the facts found. Unfortunately, again here on the facts, there is no evidence to support Mr. Banerjee's submission Evidence is there that the goods arrived at the Kalighat Railway Station and that someone by the name A. K. Sen took delivery of these goods, on behalf of the petitioner and not on behalf of either the consignor or the consignee and the next thing that we find is that these adulterated articles or tea found their way into the godown of the petitioner. A good deal of comment has been made on this part of the prosecution case because, the railway records of Kalighal railway station from the station master could not be produced as evidence although there was subpoena issued for the same. The learned Magistrate noticed that fact but observed that what happened before the articles reached petitioner's godown was not material and, therefore, no adverse inference could be drawn against the prosecution for non-production of the railway records of the Kalighat railway station.

7. Here, again Mr Banerjee for the petitioner is in a very difficult situation. Evidence has been led on behalf of the prosecution that when attempt was made to reach the railway station if was found that the goods had already been taken delivery of and put into this godown. The evidence further is that on enquiry at the railway station and from the records of the railway station these facts were discovered. Mr. Banerjee at one stage tried to argue that this was hearsay evidence, on behalf of the prosecution But that argument he did not press with enthusiasm as it could not be, because if a person says that he himself saw and examined certain records andgives evidence on the basis of such records, his evidence could not be bad under the here say rule.

8. In this state of Cue-Is and on this record the petitioner's defence cannot be said to be supported on any evidence or by any fact. The defence that the petitioner never owned this godown at all having completely broken down in evidence it is difficult Cor Mr. Banerjee's client now to dissociate from the offence On the records it appears now that it was the petitioner who took delivery of these adulterated goods and it was the petitioner who kept them in their own godown and that it was the petitioner's durwan and gate-keeper who had complete control over and possession of these goods. No witness, no letter and no record on behalf of the defence have been produced to prove otherwise.

9. Mr. Banerjee for the petitioner, therefore has relied mainly on a point of law which may be said to be his only submission. That argument is based on Section 7 of the Prevention of Food Adulteration Act which provides, inter alia as follows :

' No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food.'

Section 16 of the Act in providing for penalties mentions inter alia- 'if any person whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder

10. Mr. Banerjee's point is that as the owner of the godown the petitioner could not be said to have stored these goods In so far as it is a question of fact we are satisfied on the record that the learned Magistrate was right in holding that the godown belonged to the petitioner company and that the petitioner company stored the goods. But argues. Mr. Banerjee for the petitioner that mere storing will not be an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 unless it is also established that if was stored 'for sale' In support of his argument Mr Banerjee has relied on a number of authorities and on Section 10(2) of the Act.

11. Before discussing the authorities it will be convenient to dispose of an argument on Section 10(2) of the Act on this point The argument is based on Section 10(2) of the Act, which reads as follows 'any food Inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis ' Mr. Banerjee argues that the words, 'for sale' in Section 10(2) of the Act governs all the foregoing words 'manufacture, store or expose'. Therefore, he says that the word 'store' in Section 7 read with Section 16 should also be read there with the words added 'for sale'. The reason for hissaying so is that Section 10(2) according to him should control the meaning and the interpretation of Section 7 read with Section 16, because Section 10 confers the powers of Food Inspector to inspect places. It is therefore, natural to suppose that he will only be given the power to inspect such places for the purpose of the Act and the purpose of the Act on this point, and therefore, according to Mr. Banerjee the store must be a store 'for sale '.

12. It is difficult to accept that argument In the same statute if the words used are sometimes 'stores' and sometimes 'stores for sale' then it will not be appropriate to think that Parliament was using the words 'for sale' at random, recklessly and negligently. Parliament was aware of the two expressions, one. 'store' simpliciter and another 'store for sale' and it it was not using the same expression throughout then it can only be deliberately with purpose It will, therefore, be not right to ignore the deliberate use and import of such expression. Section ' of the Act as quoted above does not significantly use the words 'for sale' after the word 'store' In that very same section Section 7 the words 'for sale' are used but they are tagged with the word 'manufacture' and not with the word 'store'. So again in the Section 16(1)(a) of the Act which we have just quoted, there again the words 'for safe' are attached to the word 'manufacture' and not to the word 'store'. This Court, therefore, does not feel justified to qualify the unqualified word 'store' in Section 7 read with Section 16 of the Act and bring the word: 'store' within the same limitations as the word! 'manufacture' which is manufacture only 'for sale' and no other kind of manufacture There is good reason to insist that in the case of 'manufacture' to be an offence such manufacture has to be for 'sale' because other kinds of manufactures are exempt for the simple reason that such manufacture may be for scientific experiments and for technical reasons when in the course of manufacture of some oilier articles alloys and adulterations are used. Nor is Section 7 read with Section 16 the only section to note this difference. In the definition Section 2(xi) in defining the word 'premises' the statute used these very words 'stored for sale' We, therefore, consider that the absence of the words 'for sale' in Section 7 and Section 16 of the Act was deliberate and intentional and the the intention is that the storing will be an offence by itself whether it is for sale or not. The language of 7 and Section 16 in its plain reading and connotation points to that interpretation. In addition the contrast with other sections of the same Act where the words 'for sale' have been used also justifies that conclusion

13. Not only the internal indications in the Prevention of Food Adulteration Act and its various sections cited above lead to this construction, but also the whole history and the context of this legislation of food adulteration makes the point abundantly clear. Section 25 of the present Prevention of Food Adulteration Act, 1954 repeals certain Acts and statutes. For instance, Section 462 (2) of the Calcutta Municipal Act, 1951 which dealt with food adulteration within the municipal limits of Calcutta expressly used the words 'store for sale'. It was not an unqualified 'store' that was mentioned in that statute. Sub-sections 3 and 4 of Section 462 of that Calcutta Municipal Act made it clear that ignorance of the adulteration was not an excuse and that there was a presumption in favour of manufacture and storing as being for the purposes of sale. Then again, there was the Bengal Food Adulteration Act, 1919, by Section 5 whereof originally only sale or manufacture was affected but there was no mention of storing as such. But subsequently by an amendment which turned the section into Section 6 (1) the significant words 'storing for sale' were introduced In spite of these legislative examples and models on the same point of 'store for sale' the present Parliamentary statute in the Prevention of Food Adulteration Act, 1954 made deliberate departure and dropped the words 'for sale' in connection with the word 'store'. Therefore, store is itself an offence under Sections 7 and 16 of the present Parliamentary statute, Prevention of Food Adulteration Act 1954. The language and the policy of this Act make 'storing' an offence and do not confine it only to the case where the storing is for sale.

14. Finally, importing the words, such as 'for sale' in Sections 7 and 16 after the words 'store' will be unjustified legislation on the part of this Court. No doubt, there is a canon of construction that if a statute is ambiguous and no meaning could he given then the words could be imported to give life and meaning. But this course is never permissible when the statute is unambiguous and unqualified on its very terms. We are of the opinion that the language in this case is clear, unequivocal and unambiguous. The conclusion to which we are arriving is also supported by another canon of construction of statute. A word should not be given a meaning or interpretation which will make its use tautological in its context. If we are to accept Mr. Banerjee's submission that the word 'store' in Section 7 is to be read as 'store for sale' then that result is achieved already by the word 'sell' used in that very section itself. 'Selling' would include the whole process of selling including the storing, buying, handling and selling ultimately at the counter. In that event, storing for sale would he part of selling, That is also another reason why Mr, Banerjee's interpretation cannot be accepted.

15. For these reasons the procedural powers of the Food Inspector to enter and inspect a place under Section 10(2) of the Act cannot in this context qualify and limit the operation of Section 7 of the Act creating the offence and Section 16 of the Act which is a charging section.

16. There is, however, some conflict of decisions on this point which it will be necessary now to examine, that appears to be theonly strength of Mr. Banerjee for the petitioner. He has relied on (1) Food Inspector, Kozhikode v. Punsi Desai, reported in 0065/1959 : AIR1959Ker190 ; (2) In re; V Govinda Rao : AIR1960AP366 ; (3) Narain Das v. State : AIR1962All82 and (4) Municipal Board, Faizabad v. Lal Chand Surajmal : AIR1964All199 In brief these authorities lay down that mere storing of adulterated food by a person does not constitute an offence under Section 7 . The Andhra Pradesh case : AIR1960AP366 came to the conclusion that the keeping of adulterated ghee by a hotel-keeper who was not a dealer in ghee, with intent to serve it along with meals or to use it in the preparation of articles of food did not constitute an offence under Section 7 . It was held that the possession of adulterated ghee by a person who did not sell it could not in any sense be the storing of an adulterated goods, and would not therefore, fall within the purview of that section. It even went so far as to say that what constituted an offence was the selling of adulterated ghee as such, or strong or selling of food with adulterated ghee, and the prosecution could not succeed by merely taking adulterated ghee from a hotel-keeper, if there was no sufficient evidence to establish that the ghee used in preparing the food had been made out to have formed a component of the food, but that could be established only by seizure of the food itself or when the allegation was that the adulterated ghee was served with the food, by the evidence of the person to whom the ghee was served as part of the food. The 1959 Kerala case 0065/1959 : AIR1959Ker190 , came to the same conclusion saying that it was not the object of the Act to make storage or distribution otherwise than for sale any more than the manufacture for sale, an offence. The conclusion of that case was that it was only storage for sale that was prohibited under Section 16 and not storage simpliciter. In the first Allahabad case in 1962 in : AIR1962All82 these decisions were followed. Observation was made there that if possession of adulterated food for purposes other than sale was an offence, then the person who kept such food for destruction or for ridding it of defects and impurities before selling, then he would be guilty and so presumably would be a local authority in whose favour an order of forfeiture was made under Section 11(5)(a) or a person to whom the food had been returned under Section 11(5)(d). On that line of reasoning the authority came to the conclusion that the word 'store' in Section 7 meant only storing for sale and that storing of adulterated food for purposes other than sale did not constitute an offence under Section 16(1)(a) of the Act.

17. Pausing here for a moment on this Allahabad decision of 1962 and with great deference to the learned Judges who decided that case, we are unable to agree with the reasoning given above. A person who keeps an adulterated food for destruction or for curing its defects or impurity could not be said to have come within the meaning of the word 'store'used in Section 7 read with Section 16 of the Act. The word 'store' should be read in a reasonable and normal sense. Something which is to be destroyed cannot be said to be stored if that was for destruction. Similarly if a person innocently buys food which is adulterated from a shop, lakes it to his home and keeps it for the night for consumption next morning he could not be said to be 'storing' within the meaning of the word 'store'. He was temporarily keeping the food for the night for its consumption next morning. The process is a part of consumption and the interregnum between purchase and eating is not 'storing'. Storing with a view to rid the article of its adulteration is not storing of that article. The local authority in whose favour the order of forfeiture has been made stands in the similar situation and cannot in a normal sense of the word be said to be 'storing' it within the meaning of the Act. If this line of reasoning were to be accepted then the result would be that the entire police administration should be charged with receiving stolen goods because they keep the stolen goods from the victims in their Malkhana. We are, therefore, not impressed by this logic and we are unable to agree with the decision of those cases in the Allahabad decision in : AIR1964All199 , no fresh reasons were given and those other decisions were followed.

18. For reasons already given by us we are unable to take the view arrived in those authorities. We respectfully differ from those views.

19. So far as this Court is concerned, the only Division Bench case which referred to this point is the unreported decision in Jogesh Chandra Das v. District Board, Nadia in Criminal Revision Case No. 632 of 1960 (Cal). But then there was no reasoning given. Only the 1959 Kerala case was cited and the Division Bench agreed with the proposition that store meant store for sale and not storing simpliciter. The Division Bench there came to the conclusion, 'the petitioner has admittedly a grocery shop and he had about 12 seers of mustard oil in his shop. The natural inference is that he had mustard oil for sale there, even though there was no evidence produced for the prosecution that mustard oil was being sold from that shop'. If the fact found was that the storing was for sale then no further question arose before that Division Bench to construe the word 'store' simpliciter. Apparently, therefore, that observation agreeing with the decision of the Kerala High Court of 1959 was only obiter and cannot be regarded as a binding decision deciding an essential point for decision.

20. Mr Banerjee refers to another decision of this Court in Chairman, Suri Municipality v. Sisir Kumar Ghosh, (1963) 66CalWN 102. In that Division Bench authority this point was not in issue directly What that decision means is that the carrying on conveying or having in possession for sale any adulterated food is liable to be punished for infringement of Section 7 of the Prevention ofFood Adulteration Act, 1954. In fact the learned Judges observed there :

'We think therefore, that the learned Judge erred in holding that carrying of adulterated food even for the purpose of sale was not an offence punishable under the Act. (See observation at page 105).

The other observation is at page 104.

' If the learned Judge held that mere having in possession was not an offence under the Act, we would have agreed with him; but he clearly held that carrying or conveying, that is to say, having in possession adulterated food even for the purpose of sale was not an offence '.

Here again if it was for sale; there is and can be no doubt at all that it is an offence.

21. As against these decisions which are not direct authorities on this point there are authorities of single Bench which are against the contention of Mr Banerjee. They are : (1) The decision in Nandy & Co. v. Dr. R. C. Chandra, in Criminal Appeal No. 202 of 1962 (Cal) where Amaresh Chandra Roy, J. came to the conclusion that the word 'store' was not limited only to 'store for sale' in Section 7 read with Section 16 of the Act. We agree with and accept the reasons given by the learned Judge in that decision. (2) Sitting singly a member of this Bench took the same view in Criminal Appeal No. : AIR1966Cal51 in Gopalpur Tea Co. Ltd. v. Corporation of Calcutta where it was held, ' Therefore, what is prohibited is manufacture for sale, store, sell or distribute. Therefore, even storing would be bad '.

22. For these reasons we dismiss this petition and discharge the Rule Re : Criminal Revision No. 337 of 1963 :

23. This Rule has not been pressed and is, therefore, discharged.

Das, J.

24. I agree.


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