Bimalendra Nath Maitra J.
1. The case for the prosecution is that on 4-6-1971 at about 11 a. m. P. W. 1 Amitava Sarkar, a Food Inspector appointed by the State Government under the Prevention of Food Adulteration Act, went to the oil shop of the accused at 3/5 Orphanganj Market, Kidderpore, Calcutta. At that time the accused appellant, Lakshmi Chand Rustogi, was in the shop. The Food Inspector took 2/3 samples of coconut oil from him in the presence of witness after observing all the formalities. Such oil was stored there and exposed for sale for human consumption. One part of the sample was sent to the Public Analyst, who reported the same to be adulterated. Both the accused appellants were prosecuted under Section 7 read with Section 16(1)(i) of the Prevention of Food Adulteration Act, 1954.
2. The defence was that it was non-edible oil, which was perfumed oil and not meant for human consumption.
3. The learned Senior Municipal Magistrate believed the prosecution version and convicted the accused Sudhangshu Kumar Nag and Lakshmi Chand Rustogi under the above Sections, sentenced them to suffer rigorous imprisonment for 2 years each and also to pay a fine of Rs. 2,000/- each, in default to undergo rigorous imprisonment for 6 months each. The order was that the seized stock of coconut oil would be destroyed. Hence the two appeals filed by the two accused appellants.
4. None appears at the hearing in support of the appeals. Any way, we have gone through the records and heard the learned Advocates appearing on behalf of the Corporation of Calcutta as well as of the State.
5. It has been stated on behalf of the respondents that P.W. 1 Amitava Sarkar went to the shop of the accused appellants on 4-6-1971 at about 11 a. m. and took samples of coconut oil, which was stored and exposed for sale for human consumption. The samples were sent to the Public Analyst, who reported the same to be adulterated. So the learned Senior Municipal Magistrate rightly convicted the accused appellants.
6. It has been further contended on behalf of the respondent that the accused appellant did not take the specific plea that the oil in question was not meant for human consumption. On the contrary, in the receipt (Ext. 2/2) written by the accused Lakshmi Chand Rustogi himself in English it has been stated that the seller received the sample and Rs. 3.37 paise as the price of 375 grams of pure coconut oil. After 'that writing by the accused that the sample contained only pure coconut oil, the Court must find that the defence is merely an afterthought. They could not prove their case.
7. P W. 1 A. Sarkar says that he took the samples in the presence of the witnesses and served the notice in form No. VI. He has been corroborated by P.W. 2 Mainuddin.
8. P. W. 3 P. Banerjee is the Assistant Analyst. The report of the Public Analyst, Ext. 8, shows that the sample is adulterated. That report shows that there was mineral oil and there was defect regarding the saponification value. The learned Senior Municipal Magistrate has observed that it was written on the label of that tin that it was 'Circus Brand' non-edible perfumed coconut oil. He has also observed that the tin was kept in the custody of the court and it was brought to him on the prayer of the defence,
9. Here, we can refer to the evidence given by P. W. 1 Amitava Sarkar. He has admitted in his cross-examination that there was a paper label of 'Circus Brand' on the tin from which sample was taken and he does not recall whether the words 'non-edible coconut perfumed oil' were printed on the label. He further admits that after he had taken the sample, the accused took that plea.
10. Here, we can refer to the Supreme Court decisions as to what the duty of the prosecution is and how much the accused is bound to prove. In the case of Onkarnath Singh v. State of U.P. reported in : 1974CriLJ1015 Sarkaria, J., has stated that it is the duty of the prosecution to stand on its own legs and it cannot take advantage of the weakness of the defence. We can also refer to the decision of Mr. Justice Vivian Bose (Sambhu Nath v. State of Ajmer) reported in : 1956CriLJ794 to show that in a criminal case the burden of proving the case never shifts from the prosecution to the accused.
11. Here, we can see that at the inception the accused took the plea that the sample taken from the tin was not meant for human consumption and it was perfumed non-edible oil. In the case of Harbhajan Singh v. State of Punjab reported in : 1966CriLJ82 an pages 101-102 Gajendragadkar, C.J. has observed that the accused need not prove his plea beyond reasonable doubt and the onus on him cannot be equated with the degree and character of proof expected from the prosecution. It is sufficient if he succeeds in proving a preponderance of probability in his favour. The same view has been taken in the case of Mahesh Prasad Gupta v. State of Rajasthan reported in AIR 1974 SC 773.
12. It has already been pointed out that when on the prayer of the accused the tin in question kept in the Malkhana of the court was brought, it was found printed on the label that it was non-edible and perfumed coconut oil. So such oil was not kept and stored for human consumption, as alleged on behalf of the prosecution. We do not accept the contention put forward on behalf of the respondent. We hold that the charge under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act has not been established against the accused appellants.
13. Criminal Appeals Nos. 359 and 364 of 1973 are allowed. The conviction and sentences of imprisonment imposed upon the accused appellants are hereby set aside and they are acquitted.
14. Let the accused appellants, who are on bail, be discharged from their bail bonds.
Purna Chandra Borooah, J.
15. I agree.