1. These are two appeals from convictions by a Municipal Magistrate.
2. The three appellants were charged under Section 407 read with Section 489, Calcutta Municipal Act with storing, exposing and offering for sale tea which on analysis had been found to be adulterated with foreign matter. All the three accused were found guilty and convicted and Rambhai Patel and Manibhai Patel were each sentenced to undergo rigorous imprisonment for two months, and Jashbhai Patel, who was the seller of the tea, was sentenced to pay a fine of Rs. 300. In default he was to undergo simple imprisonment for thirty days. It is from these convictions and sentences that the present appeals have been preferred.
3. The appellants Rambhai Patel and Manibhai Patel are partners of a firm carrying on business of tea merchants and Jashbhai Patel was actually concerned in the sale of this tea.
4. Officers of the Corporation visited a godown of this firm and took samples of tea stored therein. This tea was analysed and it was found that one sample contained a fair proportion of tea stalks or stems and the other sample a profuse quantity of tea stems or stalks. The analyst, however does not give the proportion of stalks to the total quantity in either of his reports. It is, however, clear that this tea on chemical analysis contained nothing but what tea should contain. All that is said is that the tea stored and sold by this firm contained tea stems or stalks and that being so the prosecution contended that it was adulterated tea and the storage and exposing and selling of the same was accordingly an offence.
5. The defence was that all tea contains a certain quantity of stalks or stems and further that these stalks or stems formed part of the tea-leaf and, therefore, there was no adulteration of any kind. Further it was contended that in any event these tea stems or stalks could not be regarded as foreign matter.
6. Section 407, Calcutta Municipal Act provides :
' No person shall directly or indirectly, himself or by any other person on his behalf, sell, expose, or hawk about for sale or manufacture, or store for sale, any of the following articles namely-
* * * *(f) tea,
* * * *unless the following conditions are fulfilled, namely,
* * * *(vi) in the case of tea -it shall be the leaves and leaf buds or species of thea, prepared by fermenting, drying and firing ; it shall not contain any tea which has been in any measure deprived of its proper quality, strength or virtue by steeping, infusion, decoction or other means or any foreign matter.'
7. Any tea containing any foreign matter would be hit by this section and the only question which the Court has to decide is whether the tea found in this godown, one sample of which contained a fair proportion of terms (stems?) or stalks, and the other a profuse quantity, was tea containing foreign matter. If it was the charge was made out. If it was not the accused are not guilty.
8. All that the analyst said was that the sample contained these stalks which he said amounted to foreign matter. A tea taster was called by the defence who stated that all tea contained stalks and that stalk was not foreign to tea. The learned Municipal Magistrate) however, was of opinion that the stalk was foreign to tea and stalks, therefore, could be regarded as foreign matter added to the tea.
9. Speaking for myself I find it very difficult to come to the conclusion that tea stems or stalks are foreign to tea. I have myself drunk tea for 40 or 45 years and I do not think that I have ever had tea and even good quality tea that did not contain some percentage of stalks. According to the tea taster called by the defence tea must contain stalks and I think that is the experience of every tea-drinker except possibly the Municipal Magistrate.
10. Foreign matter must mean matter alien to tea and it is somewhat difficult to come to the conclusion that this stem or stalk is alien to the tea-leaf or tea-bud. The tea-leaf or tea-bud grows out of a thin stem which attaches the leaf or bud to a bigger stem of the plant. Usually the stem is regarded as part of the leaf. If a leaf together with the short stem which attached it to a larger stalk was shown to anybody it would be shown as a leaf, not as a leaf and something foreign to the leaf, namely, the stem. The leaf and stem would normally be regarded as one whole, . namely, the leaf and I think much can be said for the view that the bud or leaf referred to in Section 407 would include the stalk which attached that bud or leaf to a bigger stem or stalk of the tea plant. If that be the true view then quite clearly the stem or stalk cannot be regarded as matter foreign to tea. It is part of the tea leaf and in practice everybody knows that it is part of the tea which he or she drinks.
11. It must be remembered that tea which we drink is an infusion from these leaves and buds and indeed the stalks. No one has suggested in this case that the infusion from the stalk is in any way different from the infusion from the leaf or bud. The infusion may have less strength, but no one has suggested that the infusion is different as we understand the term to mean when applied to a beverage. It may be, to use a common expression, weak tea as opposed to strong tea infused from the leaf or bud. Further if the tea contained an over-high percentage of stalks or stems it might be poor quality tea, but that would be very different from saying that it was adulterated tea. It must be remembered in this case that the accused were not charged with selling tea of a poor or low quality. The only charge was selling tea which had been adulterated with foreign matter.
12. We cannot overlook the fact that the legislature of this State has realised that tea containing stalks is not adulterated tea. A new Municipal Act came into force on 14th February of this year. Section 462 of that Act replaces Section 407 of the earlier Act. This new Section 462 reads as follows:
'(1) No person shall directly or indirectly, himself or by any other person on his behalf, sell, expose or hawk about for sale, or manufacture or store for sale, any of the following articles, namely:
* * * * *(g) tea,
(h) stalky tea, * * * *
unless the following conditions are fulfilled, namely:
* * *(ix) in the case of tea-
it shall be the leaves, leaf-buds and stalks of Thea Sinensis, prepared by recognised trade processes like fermenting, drying and roasting; it shall not contain any foreign matter or any tea which has been in any measure deprived of its proper quality, strength or virtue by steeping, infusion, decoction or other means; any stalks contained in it shall be tender stalks provided that stalks other than tender stalks, may be present but shall not be more than twenty per cent, by weight, the weight of leaves and stalks being obtained after drying at one hundred degrees centigrade and determined under identical conditions.(x) in the case of stalky tea- it shall not contain more than fifty per cent, of stalks other than tender stalks) by weight, the weight of leaves and stalks being obtained after drying at one hundred degrees centigrade and determined under identical conditions; it shall be labelled as stalky tea and shall conform to such standard as may be prescribed by the State Government.'
13. Quite obviously the State Legislature in this legislation realised that sale of tea without stalks is a commercial impossibility because they define tea as leaves, leaf-buds and stalks, the stalks to be tender stalks and state that stalks other than tender stalks shall not exceed more than twenty per cent, of the total weight. What is regarded as tea under the new Municipal Act has been found to be tea adulterated with foreign matter by the learned Municipal Magistrate.
14. Further the legislature have recognised that the commodity can still be tea though it contains a very high percentage of older and less tender stalks. That is tea, but it must be sold under the name stalky tea.
15. It is incredible that these provisions should have been enacted if tea was a commodity which could be sold without stalks, tender or otherwise and that such stalks were to be regarded as matter wholly foreign to tea and matter which adulterated tea. In Section 462 of the, recent Municipal Act it is recognised that tea must include stalks and it provides that where the percentage of stalks is high then it is to be sold as low quality tea. In my view the learned Magistrate in this case took too narrow a view of the definition of tea in the old Municipal Act. The leaves and buds must inevitably be accompanied by some proportion of stalks and in my view the stalk is really part of the leaf and bud and cannot be wholly divorced from it and regarded as matter wholly foreign to tea. It is all part of the leaf and bud' though it is, from the tea-making point of view, a lower quality of tea than the actual leaf and bud itself. If this view be taken of the meaning of the words 'leaf and buds' and of the words 'foreign matter' it seems to me clear that these convections cannot be sustained.
16. In the result therefore these appeals must be allowed. The convictions and sentences are set aside and the appellants are acquitted on all the charges. The two appellants who are on bail need not surrender to their bail and their bail bonds are discharged. The appellant who was fined will be entitled to a restoration of the amount of the fine, if already paid by him. The tea which was seized and forfeited must be returned to the appellants.
S.R. Das Gupta, J.