1. This is an appeal by the Corporation of Calcutta under Section 417(3) of the Criminal P.C. against an order passed by a Presidency Magistrate. Calcutta acquitting the accused of the charges under the Prevention of Food Adulteration Act, 1954.
2. The prosecution case is as follows : Respondent No. 1 Jatish Chandra Saha is the proprietor of an Oil Mill, respondent No. 2 located at 373, Russa Road, Calcutta. On August 12, 1964, Food Inspector Sunil Biswas went to the mill and found therein mustard oil stored/exposed for sale. The Food Inspector purchased 375 grams of mustard oil from respondent No. 1 as sample for the purpose of analysis in presence of witnesses. A part of the sample was sent to the public analyst who submitted a report that the mustard oil was adulterated and unfit for human consumption. This prosecution was then started.
3. The defence is that the Food Inspector took sample of unfiltered mustard oil which was not food for human consumption and therefore, no offence under the Food Adulteration Act was committed.
4. The learned Magistrate found that the sample was taken according to law and that it was adulterated. He, however, found that it could not be said beyond reasonable doubt that the sample of mustard oil was stored at the milt for sale or intended for sale as food for human consumption. He, therefore, found the respondents not guilty. In arriving at this conclusion, be held that the sample of mustard oil taken was unaltered mustard oil and unfiltered mustard oil was not food for human consumption according to the definition of the term 'food' in Section 2(v) of the Act. Under that definition, 'food' means any article used as food, or drink for human consumption....
5. The sole question, in my view, is whether the sample was found to be adulterated and finally whether the accused person himself or by any person on his behalf manufactured for sale, stored or distributed such adulterated article. I have already pointed out that the learned Magistrate has found that the sample was adulterated and that it was seized under the law. The learned Advocate for the respondent has challenged both these findings. But there is no substance in the objections raised by him. The sample was sent at the instance of the respondent to the Director of Central Food Laboratory for the purpose of analysis and Ext. B which i3 the report of the Director, Central Food Laboratory shows that the sample is adulterated. Section 13(5) of the Prevention of Food Adulteration Act provides that any document purporting to be a certificate sent by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. The report shows presence of ground nut oil in the sample and the saponification value in excess of the highest permissible limit in the case of mustard oil. Mr. Nag, learned Advocate for the respondent has attempted to challenge this report on the ground that all the tests required to be carried on were not done. The Director of Central Food Laboratory has found the sample of mustard oil to be adulterated because of the presence of groundnut oil. In the nature of this finding, the value of the report is not affected by omission to hold one of the tests. The report is final and conclusive under the law and the Magistrate rightly held it to be adulterated. Mr. Nag also argued that the sample was not seized under the law. The Food Inspector stated that he purchased 375 grams of mustard oil from respondent No. 1 from his mill at 373 Russa Road on August 12, 1964 in the presence of two witnesses. A notice was served is Form No. 6, which is Ext. 1. Ext. 1(1) is the signature of Jatish in token of receipt on the copy of the notice. Jatish endorsed on the back of the counterpart of the sample coupon book showing delivery of one part of the sample by Food Inspector to him and also receipt of the price of the sample purchased. The Food Inspector's evidence shows that the sample purchased was divided into three parts according to the requirements of law and that these were corked, labelled and sealed duly. There is, therefore, no doubt that the sample of mustard oil was purchased by the Food Inspector on August 12, 1964 from the respondent Jatish. The learned Magistrate's decision on both the points must therefore stand.
6. Mr. Nag also argued that Section 10, P.F.A. Act empowers the Food inspector to take sample of any article of food but the sample taken was unfiltered mustard oil which, according to the Food Inspector even, is not food. Me. Hag points out that in his evidence the Food Inspector stated that usually unfiltered oil is not food for human consumption. The Food Inspector did not say that unfiltered oil is not used as food; apparently he meant that it is not proper food for human consumption. 'Food' under Section 2(v) means any article used as food or drink for human consumption with certain exceptions. If unaltered oil is consumed as food or drink then it comes within the definition of 'food' in the Prevention of Food Adulteration Act. Taking of sample for testing is necessary for detection of adulteration. Adulterated food is not really food for human consumption but if on that ground no sample can be taken then there would be no necessity for the Food Aduleration Act and no possibility of prosecuting persona guilty of an offence under the Act. This argument in my opinion is fallacious and must be rejected. I, therefore, agree with the learned Magistrate who found that the sample was legally taken and that the sample was found adulterated.
7. The next question that arises is whether any offence has been committed by the respondent. Section 7 of the Food Adulteration Act provides that no person shall himself or by any person on his behalf manufacture for sale, or Store, sell or distribute (i) any adulerated food. The learned Magistrate has found that as un. filtered mustard oil is not food for human concumption, it cannot be said beyond reasonable doubt that the sample of mustard oil was stored at the mill for sale or intended for sale as food for human consumption. His decision rests on the finding that the prosecution failed to prove that the mustard oil was stored for sale and therefore, no offence was committed. The learned Magistrate apparently relied on several authorities on the point that mere storing an offending article will not be an offence under Section 7 read with 16 of the Prevention of Food Adulteration Act, 1954 unless it was also established that it was stored for sale. This question was considered by a Division Bench of this Court to which I was a party and reported in 70 Cal WN 1019 : : AIR1967Cal110 . Shipping and Clearing (Agents) Pvt. Ltd. v. Corporation of Calcutta. Various decisions on the point were considered and it was held as follows:
That absence of the words 'for sale' in Section 7 and Section 16 of the Act was deliberate and Intentional and the intention is that the storing will be an offence by itself whether it is for sale or not. this Court does not feel justified to qualify the unqualified word 'store' in Section 7 and 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 ether kind of manufacture. The language of Sections 7 and 16 in its plain reading and connotation points to that interpretation.
Storing simpliciter, therefore, is an offence and if adulterated mustard oil is stored in the mill, the respondent would be guilty for an offence under Section 7 read with Section 16 of the Act. It is of little importance whether the sample was stated to be unfiltered mustard oil although the Sanitary Inspector stated that he gave the description as per statement of the respondent No. 1. There is also some force in the contention that the Act makes no distinction between filtered mustard oil and unfiltered mustard oil Even if the sample was taken from unfiltered mustard oil which was adulterated, the respondent would name within the mischief of storing adulterated food and therefore guilty under Section 7, P.F.A. Act.
8. In the result, this appeal is allowed and the order of acquittal is set aside. The respondents are sentenced to a fine of Rs. 300/-, each. In default of payment of the fine, respondent No. 1 shall suffer rigorous imprisonment for 1 (one) month.