Duncan Bros And Co v. STATE OF WEST BENGAL — 1971 DIGILAW 64 (CAL)

JUDGMENT 1. THOSE two Rules out of the same order involving the same point and are there fore taken up for disposal together. The Rule in Criminal Revision Case No. 984 of 1969 is at the instance of the three accused-petitioners, namely, M/s. Dun can Brother's and Co., Jyotish Chandra Roy and S. S. Agarwalls, for selling aside an order dated the 27th September 1969 passed by Shri C. Samaddar Additional chief Presidency Magistrate I Magistrate, 1st Class, Calcutta in Case No 155d of 1969 framing a charge under section 16 (l) (a) (i) read with section 7 (1) of the Prevention of Food Adulteration Act, 1954 against the accused-petitioners and for quashing the said proceedings. The other Rule, being Criminal Revision case No, 4b of 1970, is at the instance of the Corporation of Calcutta against the self-same order dated the 27th September, 1989 passed by the same Magistrate, discharging the three accused-opposite parties, namely, K. P. Goenka, Chairman board of Directors, R. P. Goenka and a. F. Macdonald, under section 16 (1) (a) (i) and (d) read with section 7 (1) of the Prevention of Food Adulteration Act, 1954. 2. THE facts leading on to the two Rules can be put in a short compass. On the 7th April, 1969, the Corporation of Calcutta through its Food Inspector, Dr. H. S. Mondal, filed a petition of com plaint before the learned Chief Presidency magistrate and Magistrate, 1st class, Calcutta against M/s. Duncan Bros. and Co. Ltd., K. P. Goenka, Chairman, board of Directors, R. P. Goenka and a. F. Macdonald, Managing Directors, Jyotish Chandra Roy, the seller and. S. S. Agarwalla alias S. Agarwalla ano ther employee of M/s. Duncan Brothers and Co. Ltd. under section 16 (l) (a) (i)and (d) read with section 7 (1) of the; prevention of Food Adulteration Act,, 1954 alleging inter alia that on the 29th. August, 1968, the complainant inspected. the two tea godowns and manufactory of the accused situated at 'l' Shed, kantapukur, Kidderpore, and found an article: of food, namely tea, stored and exposed; for1 sale and]or manufactured for sale; and/or using the same for manufacturing tea from the above stock of tea which is an article of food and two samples of the said food bearing F. I. Serial Nos. 00255 and 00256 were purchased from the seller, Jyotish Chandra Roy, an employee of the M/s. Duncan Bros. 00255 and 00256 were purchased from the seller, Jyotish Chandra Roy, an employee of the M/s. Duncan Bros. and Co. (Private) Ltd. after due observance of all the legal formalities; that a tripartit division was made of the samples and one part of each was forwarded to this public Analyst who opined that the food is adulterated; that thereafter the record was duly submitted to the Health Officer. Corporation of Calcutta; that under him direct on and with his consent the com plaint was filed praying that process? may be issued against the accused persons under section 16 (1) (a) (i) and (d) of the Prevention of Food Adulteration Act, 1954 read with section 7 of the said Act and also for passing an order for the destruction of the seized practice as adulterated food at the cost of the accused under section 11 (5) (b) or under section 11 (5) (a) of the said Act for "Orfeiture to the Corporation. The learned additional Chief Presidency Magistrate by his order of the same date issued summons on all the accused persons under the offences charged and the accused were placed on their trial before Sri C. Samaddar, Additional chief Presidency Magistrate / Magistrate, 1st Class, Calcutta to answer the aforesaid charges. The defence case, inter alia is that the accused are not guilty; that the prosecution case is wholly misconceived resulting in a material and an, abuse of the process of the court; and that the same should, in the interests of justice, be quashed. Eight witnesses were examined on behalf of the prosecution and several documents were proved and ultimately by his order dated the 27th September 1969 Shri C. Samaddar, Additional Chief Presidency Magistrate / Magistrate 1st Class, Calcutta discharged, the co-accused, K. P. Goenka, R. P. Goenka and A. F. Macdonald, under section 253 (1) Cr. P. C. and framed a charge under section 16 (l) (a) (i) read with section 7 (1) of the Prevention of Food Adulteration act, 1954 against M/s. Duncan Bros. and co., Jyotish Chandra Roy and S. S. Agarwalla, the employees of the said company. P. C. and framed a charge under section 16 (l) (a) (i) read with section 7 (1) of the Prevention of Food Adulteration act, 1954 against M/s. Duncan Bros. and co., Jyotish Chandra Roy and S. S. Agarwalla, the employees of the said company. The order of discharge has been impugned by the Corporation of calcutta and forms the subject-matter of the Rule in Criminal Revision Case No. 45 of 1970, while the three accused-petitioners impugned the order framinc the charge against them and the same forms the subject-matter of the Rule in criminal Revision Case No. 984 of 1969. Mr. Sankardas Banerjee, Counsel (with Messrs Dmesh Chandra Roy, normal Chandra Das Gupta and Rajat ghosh, Advocates) appeared in support of the Rule in Criminal Revision Case no. 984 of 1969 and opposed the Rule in Criminal Revision Case No. 45 of 1970. Nobody appeared on behalf of the State. Mr. Sunil Kumar Basu, Advocate appearing on behalf of the corporation of Calcutta, opposed the rule in Criminal Revision Case No. 884 of 1969 and supported the same in criminal Revision Case No. 45 of 1970. Mr. Banerjee has made a three-fold submission. The first one is one of law viz., that the prevention of Food Adulteration act, 1954 has no application at all to the facts and circumstances of the present case inasmuch as the two samples taken therein by the complainant as tea, are not food at all but merely tea-waste, defined under paragraph 2 (f) of the Tea Waste Control Order, 1959. For a purported contravention the proper remedy is to proceed under the said Control order and/or under the Tea Act, 1953 (Act No. 29 of 1953) and not under the prevention of Food Adulteration Act, 1954. The second contention of Mr. Banerjee is on merits vii, that the charge is unsustainable in the facts and circumstances of the case in view of the finding arrived at by the court itself that there is no case under section 16 (l) (d) of Act XXXVII of 1954. The third and last submission of Mr. Banerjee relates to the nature of the findings arrived at by the court below and he contended that the said findings are bad and improper, prejudicing the accused-petitioners and resulting in a material. Mr. The third and last submission of Mr. Banerjee relates to the nature of the findings arrived at by the court below and he contended that the said findings are bad and improper, prejudicing the accused-petitioners and resulting in a material. Mr. Sunil Kumar Basu, Advocate appearing on behalf of the Corporation of Calcutta, joined issue and submitted that the prosecution is quite within the bounds of law and at this stage the charges should not be quashed, Mr. Basu further contended that the reasons given in the order impugned are quite cogent reasons and the evidence adduced by the prosecution establishes the charges framed. In any event the prosecution should be given an opportunity to establish its case and any intervention now by this court sitting in revision would be premature. As to the other Rule against the order of discharge, Mr. Basu's contention is short and simple. Mr. Basu submitted that the steps of the reasoning given by the learned Chief Presidency Magistrate are wholly wrong and the materials on record make out a charge under section 16 (1) (a) (i) and (a) read with section 7 (1) of the Prevention of Food Adul teration Act, 1954 Mr. Banerjee's short submission in reply is that the said order of discharge is quite a pertinent order established by true facts and that the main point for consideration is whether the prosecution under the Prevention of Food Adulteration Act, 1954 is maintainable and the answer to that question would be the answer to the ease. He submitted that the order of discharge is quite a clear and cogent one and the findings arrived at the learned trying magistrate in this behalf are based on proper reasoning and also the absence of any material on the record to warrant such a charge, 3. I have heard the learned counsel appearing on behalf of the respective parties and been taken through the evidence on record. The first contention of Mr. Banerjee is a material one going to the root of the case and the determination thereof would ultimately dispose of both the Rules. I have heard the learned counsel appearing on behalf of the respective parties and been taken through the evidence on record. The first contention of Mr. Banerjee is a material one going to the root of the case and the determination thereof would ultimately dispose of both the Rules. If the subject-matter of the case be tea-waste as defined under paragraph 2 (f) of the said control Order within the bounds of the tea Waste Control Order, 1959, the proper remedy for a purported contravention would be to institute a prosecution under section 41 of the Tea Act (Act 29) of 1958 or to proceed under paragraph 10 of the Tea Waste Control order, 1959. If the article seized face tea, the prosecution launched under Act xxxvii of 1954 would be maintainable and will have to be disposed of on merits. It is, therefore, necessary to refer to the records and ascertain tints nature of the articles seized. In a series of documents, proved by the prosecution itself, namely, exhibits 1 to 7, also exhibits 9 and 10, the reference ii clearly and categorically to tea-waste; and that is the declaration of the accused from the very beginning Ext. 1 is the notice in Form VI as enjoined under Rule 12 of the Prevention of food Adulteration Rules, 1955. Under the item Details of Food it is clearly stated as "Tea which the seller declares as tea waste. " In exhibit 2 the sample coupon, the nature of the articles submitted for analysis has been mentioned as "tea (which the seller declares as tea-waste)". Exhibit 3 is the entry in the peon-book and the name of the article has been stated to be a sample of tea (which the seller declares as tea-wast). The position is the same in the sample coupon (ext. 4) mentioning it to be tea (which the seller declares as tea-waste) and in Ext. 5, the entry in the peon-book, it is stated to be a sample of tea (which the seller declares as tea-waste) Ext. 6 is the seizure-memo. Wherein the article seized has been declared "as tea (which you declared as tea-waste)" Ext. 7, the report of inspection by the Food Inspector, Dr. H. S. Mondal, bearing the date 29. 8. 68 is a material document. 6 is the seizure-memo. Wherein the article seized has been declared "as tea (which you declared as tea-waste)" Ext. 7, the report of inspection by the Food Inspector, Dr. H. S. Mondal, bearing the date 29. 8. 68 is a material document. Therein it has been clearly stated by P. W. 1 that the accused declared the stuff "As tea sweepings not for human consumption". There is an endorsement on the said exhibit, signed by the accused, Jyotish Chandra Roy, that this is not their say. The next statement in the report is significant viz., that "they have produced a tea waste licence No. TW 484j68 granted by Tea Board to store which 'of course does not show the quantity that may be stored under the renewed licence. " The report further mentioned that "According to a khas which contain daily register of purchase disposal of tea waste vide clause 15 (1) of the tea Waste Control Order, 1959 at maintained and produced by them, it shows that on 26. 6. 68 one Inspector of Tea board has tendered his signature on that date, etc." There is also a reference to damaged sweepings at the end of the said report. Two samples were taken forming the subject-matter of the two reports. In Ext. 9, the first report, the sample taken has been described to be of tea (which the seller declares as tea waste). The position is the same in the other report, viz., Ex;. 12. It is abundantly clear, therefore, that from the very first blush, the accused had been declaring consistently the stuff seized to be tea-waste, within the ambit of a relevant Control Order viz., the tea Waste Control Order, 1559 and not tea within the bounds of Act XXXVII of 1954. The correctness of the statement by the accused should have been determined in the interests of justice. 4. IT is pertinent now to turn to the oral evidence on record, particularly that of the Food Inspector, to find out the basis of the prosecution launched by the Corporation of Calcutta and the legality of the procedure adopted. It may be observed at once, that the position is not in any way better than that made out by the documentary evidence. It may be observed at once, that the position is not in any way better than that made out by the documentary evidence. P. W. 1 is an experienced Food Inspector of the Corporation of Calcutta and on his own admission, had worked in the tea section of the Corporation for 10 to 12 years. He however admitted that he does not know what is called tea-waste. The witness further stated that the accused did not show him the licence but the register only; that the licence which was shown in court and filed, was not shown to him at true tone; and that the attested copy of the licence as produced was net also placed before him. He ultimately stated that no licence, was produced but only a khata. In Ext. 7, however as mentioned before, there is a clear reference to the Licence and the defence contention from the very beginning that it is the sweepings not meant for human consumption. Much has been made of the endorsement (Ext. 7)by the accused, Jyotish chandra Roy, made at the n stance of the co-accused, S. S. Agarvalla viz., that "this is not our say". 3ut it does not ultimately charge the Complexion of the case based on a considerable number of documents from Ext. 1 to ext. 6 and also Exts. 9 and 10. When a categorical objection is raised on behalf of the defence from the very beginning that the stuff sized is not tea but tea-waste constituting the subject-matter of a distinct Control Order, viz., The Tea Waste Control Order, 1959, passed under Sub-section (3) and (5) of Section 30 of the Te; Act, 1953 penalising any contravention of the said control Order, it was the duty of the prosecution to ascertain and establish whether the stuff seized was 1 tea-waste or tea. In this context the evidence of p. W. 2, Surath Nath Sengujta an employee of J. Thomas and Co. 3 material. In his cross-examination before charge, the witness stated that the sample of tea-waste was taken by the Food Inspector. Mr. Basu appearing on behalf of the Corporation of Calcutta had contended that the witness in his examination-in-chief has mentioned the sample to be of tea. The benefit of any contradiction in evidence however must ensure to the accused and not to the prosecution in a criminal ease. Mr. Basu appearing on behalf of the Corporation of Calcutta had contended that the witness in his examination-in-chief has mentioned the sample to be of tea. The benefit of any contradiction in evidence however must ensure to the accused and not to the prosecution in a criminal ease. On an appraisal of the oral evidence as also of the relevant documentary evidence, I accordingly find that from the very inception the accused has taken the plea that the stuff seized in tea-waste coming within the ambit of the Tea waste Control Order, 1959 and not tea coining within the bounds of Act xxxvii of 1954. P. W. 1 does not say that it is not tea-waste but he stated that he does not know what is called tea- waste. The analysis by the Public analysts is obviously on the footing that the stuff sent was tea and the reports stated that the same did not conform to the standard laid down for tea in A14 under the Prevention of food Adulteration Act, 1954. It is apparently clear that there has been no examination of the stuff seized on the footing that it was tea-waste. In a criminal proceeding, there should not be any scope for doubt in establishing the prosecution case and if there be any such doubt, it must ensure to the benefit of the accused. From the nature of the evidence both oral and documentary, it is apparent that the prosecution is misconceived in the absence of any determination in the first instance as to whether the stuff seized is tea-waste or tea. It is not even averred orally that the stuff seized is not tea-waste but tea. The evidence is that it is not known what tea-waste is. This statement assumes some importance in view of the existence of a relevant order, viz., the tea Waste Control Order, 1959 providing for contraventions and also in view of the penalty provided for under the tea Act (Act 29) of 1953. The failure on the part of the prosecution to ascertain whether the stuff seized was tea or tea-waste before sending it on to that analyst as tea, for being analysed on that footing, has resulted m a failure of justice and also in a non-conformance to the procedure established by law. The failure on the part of the prosecution to ascertain whether the stuff seized was tea or tea-waste before sending it on to that analyst as tea, for being analysed on that footing, has resulted m a failure of justice and also in a non-conformance to the procedure established by law. It takes away the bottom from the prosecution case and any further proceeding in the court below would be an abuse of the process of the court. Mr. Basu appearing on behalf of the Corporation of Calcutta has referred to the object of the Prevention of Food Adulteration act, 1954 and to the desirability of penalising persons dealing in adulterated food. There cannot be a consideration of such objects, bereft of the facts of a case, and if such facts do not being the case within the ambit of Act xxxvii of 1954, any prosecution launched there under would be de hot the statute, bad and repugnant. The question is not one of the objects of a statute but of principle and the question ultimately is one of justice. In view of the clear and categorical statements made from the beginning on behalf of the defence that the stuff seized is tea-waste there should have been, in any event, a determination thereof in the interests of justice before instituting the present prosecution. In the absence thereof the present proceeding:- are bad in law and improper and should not be allowed to continue. Mr. Basu further raised a point of law in this context viz., that in view of the provisions of section 25 of Act xxxvii of 1954, the Tea Waste Control Order, 1959 is to be deemed to be repealed. Mr. Basu relied on the case of (2) Northern India Caterers (Private)Ltd. and another appellants v. The State of Punjab and another respondent-, reported in 1967 (II) S. C. A. page 232 Wherein Mr. Justice Shelat delivering the judgment of the Court observed at page 235 that The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its inconsistency with sue earlier Act, the latter may be treated as repealed. Justice Shelat delivering the judgment of the Court observed at page 235 that The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its inconsistency with sue earlier Act, the latter may be treated as repealed. Even where the latter Act does not contain such express words, if the co-existence of the two sets of previsions is destructive of the object with which the latter Act was passed, the Court would treat the earlier provision as impliedly repealed. The tea Waste Control Order, 1959 came into existence much after the promulgation of the Prevention of Food adulteration Act in 1954 and as such neither the provisions of section 25 of Act xxxvii of 1954 nor the principles laid down, by he Supreme Court support Mr. Basu's present submission. The first contention of Mr. Banerjee accordingly succeeds. 5. THE joint at issue may also be approached from another standpoint, viz., whether there has been a conformance to tie procedure established by law. After the passing of the Constituting and as incorporated in Article 21 of the Constitution of India, such a conformance assumes considerable importance. would refer to the observations of Jessel, M. R. in the well known case of (4) Taylor v. Taylor re ported, in 1876) 1 Ch. D. page 426 at page -131 that "When things are to be done to a particular way, it has to be done in that way alone and not other wise." Loil Roche relied on the said observation in a case before Their lordships of the Judicial Committee in (1) Nmzir Ahmed, Appellant v. King emperor, Respondent reported in 63 Indian Appeals, page 372, at pages 381 and 382 Lord Roche approved of the observation and held that when a thing is provided for by law to be done in a particular manner, it must be done in that manner or not at all. Their Lord ships of the Supreme Court in a later case, viz., (3) State of Uttar Pradesh, appellant v. Singhara Singh and ors. respondents reported in A. I. E. 1964 S. C. page 358 approved of the observations of lord Roche and gave effect thereto. Their Lord ships of the Supreme Court in a later case, viz., (3) State of Uttar Pradesh, appellant v. Singhara Singh and ors. respondents reported in A. I. E. 1964 S. C. page 358 approved of the observations of lord Roche and gave effect thereto. I respectfully agree with the said observations and I hold that in the facts and circumstances of the present case, there has been a non-conformance to the procedure established by law resulting in a mistrial vitiating ultimately the charges as framed. The order framing the charges as complained of is also bad from this standpoint and I hold accordingly. The first contention of Mr. Banerjee accordingly succeeds. 6. IN view of the findings arrived at on the first point raised, it is not necessary to determine the other two points urged and I refrain from doing so. Before I part with the case however, i would only observe that the material findings based on the evidence on record leading on to the charges framed, are laconic; so very laconic that it is difficult for the revisional court to follow the steps of the reasoning if the court of fact in arriving at the ultimate conclusions. The learned Additional Chief presidency Magistrate found as follows : "the evidence that are adduced on behalf of complainant, both oral and documentary, Prima jade show an offence alleged hereunder. Therefore it can be at once held that a prima facie case has been made out for framing charge under section 16 (1) (a) (i) read with section 7 (i)of the Prevention of Food Adulteration act, 1954 against accused duncan Brothers and Co. Ltd., Jyotish chandra Roy and S. S. Agarwalla," In a case where no less than witnesses were examined on behalf of the prosecution and quite a considerable body of documentary evidence was let in, it if not a proper finding for disposing of the point at issue. The learned Magistrate does not stop there but proceeds to find that the evidence on record does not sustain a charge under section 16 (1) (d) of Act XXXVII of 1954 against the co-accused K. P. Goenka, R. P. Goenka and A. F. Macdonald who are accordingly discharged. The learned Magistrate does not stop there but proceeds to find that the evidence on record does not sustain a charge under section 16 (1) (d) of Act XXXVII of 1954 against the co-accused K. P. Goenka, R. P. Goenka and A. F. Macdonald who are accordingly discharged. The impact of that finding on the ultimate charge formed is also considerable and the failure on the part of the learned trying magistrate to take the same into consideration has resulted in a failure of justice. That is not all, as towards the end of the judgment while discussing the main submission put forward by the learned defence counsel, the learned magistrate ultimately held that the prosecution is quite maintainable because of the endorsement of the accused Jyotish Chandra Roy (Ext. 7 (1) and of ext. 8, the resister of tea-waste, which did not show that the stock seized by the Food Inspector was entered therein. The main point for consideration at this stage is whether the article seized is tea-waste or not and whether the stock found is in excess of the stock shown in the register. In view of the nature of the entries in Ext 8 and in view of quite a considerable body of oral and documentary evidence, viz., p. W. s 1, 2 and Exts. 1 to 7 and 9 and 10, the ultimate findings arrived at are very abrupt and not based en that consideration which is required by law in such cases. The findings arrived at by the learned trying Magistrate are there fore unsatisfactory, resulting in a failure of justice. As to the other Rule the position in law is the same. In view of the findings arrived at in Criminal Revision case No. 984 of 1969, the Rule in criminal Revision Case No. 45 of 1970 in not maintainable. 7. ONE other point abides consideration. Mr. Sunil Kumar Basu, advocate, appearing on behalf of the Corporation of Calcutta submitted that the article seized had further deteriorated since its seizure on 29. 8. 68 and as such the learned Magistrate should be directed to destroy this considerable quantity seized and the same should not be allowed to go back as thereby public health may be endangered. Mr. Sunil Kumar Basu, advocate, appearing on behalf of the Corporation of Calcutta submitted that the article seized had further deteriorated since its seizure on 29. 8. 68 and as such the learned Magistrate should be directed to destroy this considerable quantity seized and the same should not be allowed to go back as thereby public health may be endangered. In this connection, he referred to the prayer made in paragraph 6 of the petition of complaint for destruction or forfeiture under section 11 (5) (b) and 11 (5) (a) of act XXXVII of 1954. Mr. Banerjee appearing on behalf of the accused petitioner submitted that there is no point in destroying the article which is but tea-waste and in any event, the learned Magistrate should dispose of this question of disposal or destruction with notice to both the sides. I have given the matter my anxious consideration and I hold that in view of the nature of the articles and in view of the efflux of time since 29. 8. 68, the learned trying Magistrate shall take steps for disposing of the articles seized by destruction or otherwise in accordance with law and with notice to both the parties and hearing them. 8. IN the result, I make the Rule absolute in Criminal Revision Ca. se No. 984 of 1969; set aside the impugned order dated the 27th September, 1969 framing a charge under section 16 (l) (a) (i) read with section 7 (1) of the Prevention of Food Adulteration act, 1854 against the three accused petitioners and I quash the proceedings pending before Shri C. Samaddar, additional Chief Presidency Magistrate 1st Class, Calcutta in case no. 155d of 1969 under section 16 (l) (a) (i) read with section 7 (1) of the prevention of Food Adulteration act, 1954. 155d of 1969 under section 16 (l) (a) (i) read with section 7 (1) of the prevention of Food Adulteration act, 1954. I also discharge the Rule in Criminal Revision Case No. 45 of 1970; uphold the order passed by the learned Additional Chief Presidency magistrate discharging the other three accused, K. P. Goenka, R. P. Goenka, and A. F. Macdonald, under section 16 (1) (a) (i) and (d) read with section 7 (1) of Act XXXVII of 1954; and I direct that after the records arrive in the court below, the learned trying magistrate shall take steps for passing necessary orders for the disposal of the articles seized, in accordance with law, by destruction or otherwise, on notice on both the parties. The records are to go down as early as possible. Rule made absolute.