B.N. Maitra, J.
1. The case for the prosecution is that on 4-12-1971, Dr. H. S. Mondal, Food Inspector, inspected the godown of the accused No. 1, Dilaver Khan Rahim Khan & Co. (Pvt.) Ltd., at 9/4, Mtmshigunge Road, Calcutta. He found that tea was stored and exposed for sale as an article of food. He served a notice and took samples of tea after observing all the legal formalities. He seized and sealed 750 gms. of tea kept in 25 gunny bags. He also seized and sealed about 500 kgs. and 600 grams of materials which could be used as an adulterant of tea. He sent one of the samples of tea to the Public Analyst, who reported the same to be adulterated. Then the written consent of the Health Officer, Corporation of Calcutta, was obtained. It has been alleged that the accused No. 2 is the Director and the accused No. 3 the seller and godown keeper.
2. Two charges were framed against the three accused. The first one is under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, for storing and exposing for sale for human consumption tea in 25 bags. There was also another charge under Section 16(1)(d) of the Act because the three Accused had in their possession 500,600 kgs. of a material kept in 20 chests and it was tea-like.
3. The defence was that the accused were not guilty.
4. The learned Senior Municipal Magistrate accepted the prosecution version, convicted the accused only regarding the first charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, sentenced the accused No. 1 i. e., the Company, to pay a fine of Rs. 2,000/-. The accused No. 2 was sentenced to undergo R.I. for three years and also to pay a fine of Rs. 2,000/-, in default to suffer R.I. for six months. The accused No. 3 was sentenced to undergo R.I. for three years and to pay a fine of Rs. 2.000/- in default to suffer R.I. for six months. Hence this appeal by the three accused.
5. Mr. J.N. Ghosh, appearing on behalf of the appellant, has contended that there was no sale by the accused No. 3' because P. W. 1, Dr. H. S. Mondal, merely made over the form VI to that accused No. 3. But in fact no sale was made by him. Further, the tea was kept on a separate bunk and it was not stored or exposed for sale. He has referred to the case of Municipal Corporation of Delhi v. Laxmi Narain in : 1976CriLJ547 to show that mere storage is not an offence and a person can be convicted under Section 16 read with Section 7 of the Act if the-storage or distribution is for sale. Moreover, the accused Nos. 2 and 3 are not liable because the necessary averments : have not been made in the petition of complaint to implicate them. The third submission is that the second charge against the three appellants is that they being, manufacturers of an article of food had in their possession a tea-like material, weighing 500.600 kgs. But the learned Senior Municipal Magistrate did not find the appellants guilty of that charge. As they are not manufacturers, this appeal must be allowed because the first charge is that tea was stored for sale, It has been lastly contended that the Court should consider the question of sentence.
6. Mr. P. C. Ghosh, appearing on behalf of the Corporation of Calcutta, has contended that all the appellants were rightly convicted. He has stated that the defence taken before the learned Magistrate was that 94 bags of tea had been purchased by the accused No. 1 from Messrs Radhakishan Shamsunder without any written warranty. Subsequently, a case was initiated by the Corporation of Calcutta against Messrs Radhakishen Shamsunder and that has been admitted by P. W. 1, Dr. H. S. Mondal. The case of R. G, Pamnani v. State of Maharashtra in : 1975CriLJ254 has been cited to show that the protection under Section 19(2)(a)(i) and (ii) of the Act regarding the warranty is enjoined in both the cases in the section and not only in a case falling under Section 19(2)(a)(i) of the Act.
7. In this case, the Food Inspector, P. W. 1, Dr. H. S. Mondal, took the sample after observing all the legal formalities. He made over one sample to the alleged seller and sent one part of the sample to the Public Analyst. The report of the Public Analyst shows that the tea in question is adulterated. This finding has not been challenged at present. The case of Mangaldas v. State of Maharashtra in : 1966CriLJ106 cited on behalf of the appellants shows that the Prevention of Food Adulteration Act gives a special definition of 'sale' in Section 2(xiii) which specifically includes within its ambit a sale for analysis and a sale for analysis must be regarded as sale even if the transaction contains an element of compulsion. It seems that this decision is of no avail to the appellants because the Supreme Court overruled the view of the Bombay High Court, which held that in order to make a sale within the meaning of Section 2(xiii), the element of consent must be present.
8. In the case of Corporation of Calcutta v. Rathi & Co. in (1969) 73 Cal WN 1012, the proprietor engaged the Food Inspector in conversation and subsequently, slipped away. The Food Inspector took samples in the absence of the proprietor and sent one of the samples to the Public Analyst, who found the same to be adulterated. It was held by a Bench of our Court that the sample was properly taken by the Food Inspector in the absence of the proprietor and he shall be deemed to be present when the sample was taken,
9. Here, the learned Municipal Magistrate found that the sample was duly! taken by the Food Inspector, P. W. 1, Dr. H. S. Mondal. At that time, accused No. 3, who according to P. W. 1, Dr. H, S. Mondal, was the seller, was in charge of the godown. Hence the necessary form VI was made over by him to the accused No. 3. Thereafter he telephoned his proprietor and subsequently, declined to accept the price of the tea. In the circumstances, we are not inclined to accept the submission made by Mr. J. N. Ghosh. We, therefore, held that there was sale by the accused No. 3 to P. W. 1, Dr. H. S. Mondal, within the meaning of the provisions of Section 2(xiii) of the Prevention of Food Adulteration Act, 1954.
10. Then about the aforesaid case of Municipal Corporation of Delhi v. Laxmi Narain in : 1976CriLJ547 , Mr. J.N. Ghosh has admitted that initially 94 bags of tea were purchased by the company concerned. 25 bags were found to be below standard and hence that quantity of tea was separately kept on a bunk. That tea was not meant for sale and hence no storage was made in the usual course. This submission does not stand to scrutiny because after the sale of 94 bags the alleged warranty was called for from Messrs Radhakishen Shamsunder in, September 1971 and the Food Inspector went to that godown on the 4th December, 1971. Surely, 25 bags of tea were not an article of beauty or a bunch of flowers which could be separately kept on a bunk for the purpose of show only. Since a period of three months elapsed between the date of arrival of such tea in that godown and the raid made by the Food Inspector on the 4th December, 1971, there is no manner of doubt that such 25 bags of tea were stored in the godown in question for the purpose of sale. The intention of the accused was to sell the tea and not merely to store the same, and we find accordingly.
11. Regarding the third submission made by Mr. J.N. Ghosh that they are, not manufacturers, suffice it to say that the learned senior Municipal Magistrate did not find the accused guilty of the second charge Of course, in the petition of complaint, there is an omnibus statement that the tea in question was stored/ exposed for sale and/or manufactured and/or the accused used the same for manufacturing/preparing an article of goods. Normally, Dr. H, S. Mondal should have taken the precaution of deleting from the typed form the surplus words appearing therein. But he did not care to do so. Any way, it has already been indicated that two charges were framed by the learned Municipal Magistrate, viz., one under Section 16(1)(a)(i) of the Act and the second one under Section 16(1)(d) of the Act. There was no conviction regarding the second item of charge, which was with regard to the allegation that the accused were the manufacturers of an article of food. Since the charges were framed on the evidence on the record and not on the basis of the petition of complaint alone, this grievance has no legs to stand upon. Moreover, when there was no .conviction in respect of the second charge, there is no question of any prejudice. Hence, this contention also cannot be sustained.
12. Then regarding the point raised by Mr. P. C. Ghosh. It will be sufficient to point out that later Mr. J. N. Ghosh abandoned the point of warranty. In the case of State of Kerala v. A. Mohammed in : 1978CriLJ925 Untwalia, J., overruled the decision of A. N. Ray, C. J., in the case of R. S. Pamnani v. State of Maharashtra reported in : 1975CriLJ254 . Hence, it is not necessary to dilate any more on this,
13. But there is one difficulty regarding the appellant No. 2. In the case of G. Atherton & Co. v. Corporation of Calcutta reported in 1979 Cri LJ 86, a Bench of our Court, speaking through Mr. Justice P. C. Borooah, held that unless it was stated in the petition of complaint how the accused were concerned in the carrying on of the day-to-day business of the company, process could not have been issued against them. Since those vital allegations were not made in the petition of complaint, the proceedings were quashed. In this case, it has been merely stated at the top of the petition of complaint that the accused No. 2 is the person in charge of the local affairs of the company. But P. W. 1 Dr. H. S. Mondal, has not stated anything on this. So, since the prosecution failed to prove that the accused No. 2 was the person in charge of the local affairs of the company, he must' be acquitted.
14. Lastly about the sentence. Here, no foreign element, viz., any leather or other harmful material was found by the Public Analyst. His report is that the sample did not conform to the standard, Hence, we think that imposition of fine only will meet the ends of justice.
15. The appeal is allowed in part. The conviction and sentence imposed on the appellant No. 2 be set aside. He is acquitted and discharged from his bail bond. The conviction with respect to the appellant Nos. 1 and 3 be maintained. The appellant No. 1 is sentenced to pay a fine of Rs. 500/- and the accused No. 3 to pay a fine of Rs. 250/- in default the latter will suffer R, I. for six months. The sentence be modified accordingly. Excess fine, if paid, will be refunded.
P.C. Borooah, J.
16. I agree.