K.C. Chunder, J.
1. This is an appeal against a conviction and sentence on the two accused persons under Section 406, Calcutta Municipal Act, (Bengal Act 3 of 1923) read with Section 488. Mohari Lall is the proprietor of the shop and Sower Lall was acting as the actual salesman. The shop is situated at 24/1, Sir Hariram Goenka 'Street, Calcutta. A Food Inspector of the Calcutta Corporation visited the shop. His evidence is that he found actually adulterated turmeric was being sold to customers. He purchased a sample of the same. What is more, he found turmeric was being ground with calcium carbonate in a machine near where the accused salesman was actually selling the article. He observed all the necessary requisites for the taking of such a sample and for sending the same to the Public Analyst of the Calcutta Corporation. The certificate of the Public Analyst is that even on physical examination small solid particles of calcium carbonate were visible to naked eye and chemical examination disclosed also calcium carbonate and he was, of opinion that the sample of turmeric was adulterated with calcium carbonate. The Food Inspector Dr. H.C. Saha is himself a medical man & his evidence is that as a doctor he would boldly say that such furmeric mixed with calcium carbonate was harmful and injurious to health and it might produce stones & give rise to serious diseases, etc. Both the accused pleaded not guilty. The accused Moharilall in his statement under Section 342, Criminal P. C. said that the turmeric was not to be sold by him but as it had got mixed up, it was going to be thrown away by him. The statement of Sower Lall was that he was a servant. No evidence was given on behalf of the defence.
2. These facts, as I have stated, were accepted by the learned Magistrate on the evidence on record. They have not been challenged by Mr. Chatterji as incorrect. His contention first is that the Public Analyst's certificate is inadmissible in evidence and he has referred me to Sections 510, Criminal P. C.' This argument was obviously based upon a mistake as it had overlooked Section 425 (2), Calcutta Municipal Act, read with Section 3 (55) of the same Act.: These two sections of the Calcutta Municipal Act would show that an Analyst appointed by the Calcutta Corporation is a Public Analyst and that a Public Analyst's report is evidence without calling the Analyst to Court. This has therefore nothing to do with Sections 510, Criminal P. C.
3. The next argument of Mr. Chatterji was that I should take seller to mean the person in: whose name the licence has actually been granted. That contention cannot be supported in the context of the section itself. It shows by the words 'by any other person on his behalf that not only the person who is the actual proprietor or holder of the licence but anyone selling on his behalf comes within the mischief of the section as the seller.
4. Mr. Chatterji next contended that 'mens rea' is necessary and it must be proved that the salesman who was merely a servant knew that he was selling adulterated goods. He has referred me to two decisions reported in --'Shew Karaa v. The Corporation of Calcutta', 16 Cal WN 455 (A) and -- 'Bikhuram v. The King', 53 Cal WN 503 (B). It is unnecessary for me to say anything regarding the question of absolute liability or 'mens rea' in the present case. As far as the decision reported in --'16 Cal WN 455' (A), is concerned, the law has been changed since then but apart from that even if 'mens rea' is necessary, a question which I leave undecided, the evidence clearly shows such 'mens rea' or knowledge as the evidence is that the physical examination itself would show particles of calcium carbonate mixed with turmeric which was being sold and also that the turmeric was being ground with calcium carbonate in a machine near where the seller was carrying on his work. If in these circumstances knowledge is inferred it cannot be said that the inference will be wrong. As far as knowledge of the proprietor is concerned his own statement showed that he knew that the articles were adulterated and his defence was that he did not want to sell the articles known to be adulterated but that he wanted to throw the same away, of which pious intention, there is no further evidence. The evidence of actual sale of such adulterated article is on record.
5. Mr. Chatterji's next contention was that the compulsory sale to an officer of the Corporation like this was not a sale contemplated, under Section 406 of the Act. He has referred me to the decision reported in -- 'Akhoy Kumar v. Corporation of Calcutta' : AIR1928Cal320 . The soundness of that decision was questioned by a Division Bench in -- 'Davis Hewlet & Co. v. Emperor' : AIR1933Cal598 and was not followed but it is unnecessary for me to enter into the correctness or otherwise of either decision because in the present case the evidence of the Food Inspector is that in his presence there was sale to others of the adulterated article and no reason has been given why the evidence of the Food Inspector on this point should be disbelieved, so that apart from the compulsory sale to the Food Inspector there is evidence of other sales as well. Under the circumstances the legal question does not arise.
6. Finally, Mr. Chatter ji has contended about the sentences. He is right in pointing out that the sentence of fine of Rs. 1000/- imposed by the learned Magistrate under the new Calcutta Municipal Act is not justified. He has drawn my attention rightly to Article 20, Clause (1) of the Constitution of India in accordance with which the sentence must be a sentence in accordance with the Municipal Act of 1923 under which the prosecution took place. The sentence therefore passed on Mohari Lall cannot be sustained and as the Magistrate is rightly of opinion that in view of the big business of Mohari Lall the highest sentence under the section should be passed, I impose a sentence of fine of Rs. 500/- in his case.
7. Mr. Chatterji next contended that the salesman Sower Lall is after all only a servant. He stands to gain nothing & a sentence of a fine of Rs. 300/- is a stiff sentence in his case. At the same time, it must be pointed out that but for such salesman it would not be possible for such adulterated articles to be so readily sold because the proprietors themselves hardly ever act as distributors of these articles. Under the circumstances, I find no reason to interfere with the sentence passed in his case.
The result, therefore, is that except for themodification of the sentence in the case ofMohari Lall the appeal is otherwise dismissed.The excess fine, if realised, is to be refunded toMohari Lall.