T.P. Mukherji, J.
1. Appellant No. 1 M/s. Poison Limited and appellants Nos. 2 and 3, employees of the firm at Calcutta, filed this appeal against their conviction under Sections 16(1)(a)(i)/7(i) of the Prevention of Food Adulteration Act bya Municipal Magistrate at Calcutta, Appellant No. 1 has been sentenced to pay a fine of Rs. 2,000/- while appellants 2 and 3 have been sentenced to pay a fine of Rs. 1,000/- each, in default, to simple imprisonment for three months. The subject-matter of the prosecution was ghee which on chemical analysis was found to be adulterated in the sense that the moisture content therein and the oleic acid content also, exceeded the standard as prescribed in A 11.14 of Appendix I to the Rules framed under the P. F. A. Act. The standard for moisture content prescribed for West Bengal is 0.3% while that prescribed for oleic acid is 3%. The result of analysis in the present case disclosed a moisture content of 1% and oleic acid content of 4.2%. The learned Magistrate on a finding that the sample did not conform to the standard prescribed by the Rules under the P. F. A. Act convicted appellant No. 1 the company and also appellants 2 and 3 as persons in charge of and responsible to the company for the conduct of the company's business. The conviction of appellants 2 and 3 was obviously made under Section 17 of the P. F. A. Act.
2. The defence of appellant No. 1 at the trial was that the sample was taken from a sealed tin which along with other tins was kept in cold storage, that the removal of the tin from the cold storage to a dry place resulted in an increase in the moisture content of the ghee inside and the increase in the moisture content necessarily led to an increase in the oleic acid content in the ghee. The defence of appellants 2 and 3 was that they do not have anything to do with the manufacture of the ghee which is done outside Calcutta; that they are employees in the office of the firm and are not responsible for the quality of the ghee or butter that is manufactured by the company.
3. The learned Magistrate accepted the result of the chemical analysis and as that disclosed a variation from the standard prescribed, found that the sample was adulterated. He also found appellants 2 and 3 responsible for the affairs of the company and on its findings he made the order of conviction and sentence which is the subject-matter of the present appeal.
4. Mr. Banerjee appearing in support of the appeal contends first that in any event there is nothing on record to prove that appellants 2 and 3 were in charge of and were responsible to the company in the matter of the quality of the product and that in any case in view of what these two appellants stated in course of their examination under Section 342 of the Code of Criminal Procedure, it should have been held that the offences if any could have been committed with-out their knowledge and in spite of their due diligence in the matter. The second contention of Mr. Banerjee was that the increase in the moisture and oleic acid contents has been satisfactorily explained in the evidence of the chemical analyst P. W. 4 and of the defence witness examined in the case.
5. Mr. Basu appearing for the Corporation of Calcutta argued that as soon as the result of the chemical analysis discloses a variation from the standard, the Court has no other course open but to find the article concerned as adulterated unless a report of the chemical analyst is superseded under Section 13(5) of the P. F. A. Act by the report of the Central Food Laboratory.
6. Appellants 2 and 3 may be in charge of the Calcutta office of the company as the persons in charge of and responsible to the company for the conduct of its business. They are initially liable under Section 17(i) of the Act. The proviso thereto states however that such person in charge will not be liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. The product of Poison & Co., comes from outside Calcutta in sealed tins as it appears from the materials on record. Apparently appellants 2 and 3 have nothing to do with the manufacture thereof. They could therefore have had no knowledge about the method of manufacture nor could they, with the best of diligence, have prevented adulteration of the product if any. In the circumstances of the case, there is no justification for the conviction of appellants 2 and 3 at any rate.
7. According to the chemical analyst's report Ext. 7 in the case, there is a variation in the standard of moisture and oleic acid content from what is prescribed in the Rules and what was found on analysis in the present case. This variation normally would go to prove adulteration. The defence case however is that the oleic acid and moisture contents are inter-related and an increase in moisture content will lead to a corresponding increase in the oleic acid of the article in question. This is admitted in the evidence of the chemical analyst P. W. 4. The further defence case is that the increase in moisture in the present case as indicated in the chemical analyst's report should not necessarily be taken as an increase in the moisture content of the sample of ghee. The increase in moisture is explained by the fact that the sealed tin containing the ghee was kept in cold storage and that on being brought out from a low temperature to a high temperature and on being opened there, an excess of moisture was attracted tothe content of the tin thereby increasing its moisture content. P. W. 4 a chemical analyst was cross-examined on this defence. His answer is as follows:--
'If any butter or ghee is brought out from cold storage to a dry place there may be variation in moisture but that will depend upon the temperature of the dry place. .....Presence of moisture Iagree increases the free fatty (acid?) in fat and oil. ..... Presence of free fattyacid is accelerated by light and heat.'
To the same effect but more to the point is the evidence of D. W. 1, Dr. A.N. Sana, who is a p. Phil in Science and is a oil technologist. His evidence is to the following effect:--
'If a sealed tin of ghee is brought out from cold storage and kept in normal temperature, the variation of moisture will rest on the degree of temperature of the two places .....if a sealed tin ofghee is brought out from a cold storage and is kept open in an open place the moisture will deposit on the cold surface of the material. This will increase the moisture of the stuff, but I cannot say how much moisture will deposit in such a case. In such cases, in my opinion, the percentage may vary from .01 to 1%. The increase of moisture will increase in free fatty acid expressed as oleic acid --the increase may go up to 2 or 3%'.
The sample in this case was taken in the month of September. According to D. W. 1 usually the temperature of a cold storage may vary from .0 to 15C and the normal temperature in Calcutta in the month of September will be between 26 to 28C.
8. It is thus apparent from the evidence of P. W. 4 and D. W. 1 that under the circumstances in which admittedly the tin of ghee was kept in the case and under which that tin was brought out for the purpose of taking sample therefrom, moisture would be attracted to the ghee from the atmosphere. That moisture was not a part of the ghee in the tin. It came from outside and if that be the position what came from outside can easily be eliminated for the purpose of determining the standard of quality of the stuff that was initially inside the tin. According to D. W. 1 the increase in the percentage of moisture may vary from .01 to 1. The increase in the present case was .07%. So far as oleic acid content is concerned under the circumstances there may be an increase of 2 to 3% according to D. W. 1. The increase in the present case is only 1.2%. The increases thus are within the range of variation deposed to by D. W. 1 and the possibility of increase under the circumstances is also admitted by P. W. 4 in the case.
9. The defence is not required to prove its case with that amount of exactitude that is demanded of the prosecution. If the defence appears to be reasonable and probable the Court is bound to give effect thereto. The defence in the present case in view of the totality of the evidence on record appears to be highly reasonable and probable and as such it is liable to be given effect to.
10. So far as Mr. Basu's contention that variation from the standard as prescribed would make the article of Food adulterated, all that need be stated in the facts and circumstances of the present case is that the variation is due to circumstances which, intervened due to an act of nature. In the present case an excess of moisture contained in the article of food resulted from an act of nature which drew moisture from the atmosphere thereto and naturally for ascertaining the standard of its quality the amount of moisture that was drawn from outside should be overlooked.
11. In view of the above, the appealmust succeed. The appeal is accordingly allowed. The order of conviction andsentence passed on the petitioners is setaside and they are acquitted. Fines ifpaid be refunded.