DUNCAN BROS AND CO Vs. STATE

JUDGEMENT

(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) cf 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. 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

(3.) 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. 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,