minal Appeal No. 118 of 1959.
Appeal by special leave from the judgment and order dated July 2, 1957, of the Calcutta High Court in Criminal Appeal No. 101 of 1956 arising out of the judgment and order dated January 16, 1956, of the Second Court of the Municipal Magistrate, Calcutta, in case No. 208B of 1955.
C. B. Aggarwala, B. B. Tawakley and B. P. Maheshwari, for the appellant.
Nalin Chandra Bannerjee, Sunil K. Basu, section N. Mukherjee for P. K. Bose, for the respondent No. 2. 1960.
November 24.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This is an appeal by special leave against the 'Order of the Calcutta High Court affirming the conviction of the appellants Messrs. Madan Mohan Damma Mal Ltd., and Om Prokash Manglik, its Manager, under section 462 of the Calcutta Municipal Act, 1951 (W. B. XXXIII of 1951) hereinafter called the Act.
The facts leading to this appeal are that Messrs. Madan Mohan Damma Mal Ltd., (hereinafter called appellant No. 1) sent a consignment of mustard oil, about 499 maunds in weight, from Firozabad, the place of manufacture, to itself, at Calcutta, on December 25, 1954, in tank wagon No. 75612.
This wagon was placed at the Pathuriaghat siding at Calcutta at 666 about 8.45 a.m., on January 3, 1955.
Dr. Nityananda Bagui, Food Inspector of the Calcutta Corporation, accompanied by certain police officers, went to that siding and took three samples of mustard oil contained in this wagon, after arranging with Om Prokash Manglik, appellant No. 2, who was found near the wagon, the purchase of 12 ounces of oil for annas eight.
He took the sample of oil in three phials.
They were properly sealed.
One of them was given to appel lant No. 2.
The other two were kept by Dr. Bagui.
He sent one of them to the Public Analyst for examination, the same day.
Ashit Ranjan Sen, the Public Analyst, examined the oil contained in that phial on January 3, 1955, but could not come to any positive opinion about its purity.
Dr. Bagui, however, seized the tank wagon that evening, sealed it with the Corporation 's seal and left it in the custody of appellant No. 2.
The oil in the tank was allowed to be removed to the godown of the appellants on January 6, 1955.
The lock of the godown was then sealed with the seal of the Corporation.
Mr. Sen reported on January 4, 1955, that the oil was adulterated.
He sent a detailed report about the result of the examination on January 24, 1955.
On receipt of the report about the mustard oil being adulterated, Dr. Bagui filed a complaint against the appellants on February 4, 1955, with respect to their.
selling and keeping for sale mustard oil, a sample of which was found on analysis to be mustard oil which was adulterated with groundnut oil.
During the course of the trial, the trial Court, on an application on behalf of the appellants, ordered the despatch of the third sample phial of the oil in the custody of the Corporation 's Health Officer, to the Director of Health Services, Government of West Bengal, for analysis and report.
This sample was analysed by Dulal Chandra Dey, Court Witness No. 1, and found to be adulterated with groundnut oil.
The report of the Analyst was, however, sent to the Court under the signature of Dr. section K. Chatterjee, D. W. 2, Deputy Director of Health Services, Government of West Bengal.
667 The appellants appear to have sent the sample of oil in their possession to Om Prakash, Oil Expert to the U.P. Government, who reported on July 27, 1955, that the sample 'conforms to Agmark Specification for Mustard Oil and is considered to be free from adulterants such as sesame, groundnut and linseed oil '.
This report, however, has not been proved.
The Deputy Commissioner of Police, Enforcement Branch, Calcutta, sent a sample of mustard oil on January 10, 1955, to the Public Analyst, Food & Water, West Bengal Public Health Laboratory.
Sri section N. Mitra, D. W. 7, examined this sample and reported, on the basis of its saponification value to be 173.3, and iodine value to be 105, that the sample approximated to the standards of genuine mustard oil.
This report does not establish that the sample was of pure mustard oil.
Sri Mitra 's reply to the query from the Deputy Commissioner of Police for clarification, makes this very clear.
It is: "But, unless conclusive evidence of the presence of a foreign oil, corroborated in some instances by the figures of the usual oil contents, is obtained, the sample is not and cannot be declared adulterated.
In the present case the sample of mustard oil has already been examined exhaustively and has been certified as `approximating to standards ' but not as genuine.
The legal implication of the expression is that the sample will have the benefit of doubt.
" Further, there is no good evidence on the record to establish that the sample sent to Sri Mitra was a sample from the appellants ' tank wagon.
Dr. Bagui does not depose about the police people taking a sample of oil.
He was not questioned about the police taking any sample of the oil.
There seems to be no good reason for the police taking a sample of oil for the purpose of analysis and finding out whether the mustard oil was pure or not.
The case put to Dr. Bagui during his cross examination, on behalf of the appellants, appears to have been that he himself had taken four samples of the mustard oil in question and that one of those samples was sent to the Enforcement Branch.
Dr. Bagui denied that he had taken 668 four samples of the mustard oil, His statement is fully corroborated by the statement of Kalidas Ganguli, Sub Inspector, Calcutta Enforcement Branch, Police Department, who had accompanied Dr. Bagui on the occasion.
He stated that the Corporation Food Inspector took three samples and the police took the one ,,sample which was sealed with the Corporation seal.
We are not satisfied that the police actually took one sample of the oil and had it sealed with the Corporation seal as deposed to by Kalidas Ganguli.
The Courts below found on the evidence that the mustard oil in the appellants ' tank wagon was adulterated with groundnut oil, that the appellants were in possession of that oil and had stored that oil for sale, in view of the presumption arising under subs.
(4) of section 462 of the Act, and which had not been rebutted on behalf of the appellants.
Learned counsel for the appellants has questioned the correctness of these findings.
We have considered the evidence in connection with the analysis of the samples of mustard oil by the Chemists.
Ashit Ranjan Sen, P.W. 2, Public Analyst, who examined the first sample sent by Dr. Bagui on January 3 4, 1955, found it adulterated, on the basis of the data that the B. R. Index at 40 degree C was 60.4 and the Bellier 's test for groundnut oil was positive inasmuch as it gave turbidity at 28 degree C. Court Witness No. 1, Dulal Chand Dey, who actually analysed the sample sent by the Court, also found it adulterated, on the basis of his obtaining the saponification value to be 175.5, iodine value to be 106degree 8 and the appearance of turbidity at 27 degree C. He also found indication of the presence of a small amount of linseed oil.
The correctness of his opinion on these data is admitted by Sri Mitra, D.W. 7.
In these circumstances, the finding of the Courts below that the mustard oil in the appellant 's tank wagon was adulterated is correct.
It is not established that the sample of mustard oil sent to Sri Mitra by the Deputy Commissioner of the Enforcement Branch contained mustard oil from this tank wagon.
The opinion of Sri Mitra about the nature of that sample therefore does not go against the opinion 669 of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnut oil.
The other contention for the appellants is that they were not in possession of the oil when the sample of mustard oil was taken by Dr. Bagui and that therefore no presumption under sub section
(4) of section 462 of the Act can be raised against them for holding that the oil was stored for sale.
It appears from the judgment of the High Court under appeal that it was not disputed at the hearing before it that the appellants were in possession of the mustard oil whose sample had been taken.
On the evidence on the record we are of opinion that they were in possession of the mustard oil.
The consignment of oil was from the manufacturing firm, appellant No. 1, to itself at Calcutta.
Its manager, appellant No. 2, took delivery of the wagon from the railway authorities on January 3, 1955.
There is no direct evidence to the effect that such delivery was taken prior to Dr. Bagui 's taking sample of the mustard oil.
But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Bagui 's visit and taking samples of oil from the wagon.
Appellant No. 2 is not expected to and could not have got the wagon opened for 'the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities.
The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge.
Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Bagui 's visit and thus obtained delivery of the wagon.
It was thereafter that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil.
We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil from it.
The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by the appellants, under sub section
(4) of section 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the 83 670 U.P. Oil Millers Association and the Deputy Commissioner of Police, Enforcement Branch, and the letter of the appellants to the Secretary of the Association (Exhibit R) on January 3, 1955.
We have considered the various documents which have been referred to in support of the arrangement between the Association stand the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated.
The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at.
Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil.
It was, however, decided that the samples of oil be taken from the next morning, i.e., June 10, 1954.
We however find that in November 1954 the U. P. Oil Millers Association wrote to appellant No. I that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February 1955 and April 1955, the Deputy Commissioner of Police, Enforcement Branch had to remind the U. P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same.
Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have 671 had any great effect, as the consignment of oil received by the appellants was without any such certificate.
Mahendra Kumar Gupta, D.W. 1, Chemist of the appellants ' mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration.
Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time.
Letter Exhibit R was sent on behalf of appellant No. I to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3, 1955.
The letter said: "Please arrange for sample and test through the proper authorities concerned, so that we may take the delivery of oil only if it is found pure on analysis." Any such statement can hardly be sufficient to rebut the presumption that the oil which was consigned by appellant No. I to itself at Calcutta was stored for sale.
The letter itself does not say that the oil will not be sold.
It simply says that they may take the delivery of the oil only if it is found pure on analysis.
What would be done to the oil if it is found to be impure, is not stated.
The Association was not in any arrangement with the Corporation which had the sole authority to take action with respect to the adulterat ed mustard oil.
The Enforcement Branch of the Police had nothing to do with it.
In the circumstances, all the so called arrangement with the Enforcement Branch of the Police and the consequent letters, similar to letter Exhibit R, seem to be a subtle device to make things difficult for the proper authorities responsible to see that mustard oil fit for sale be pure.
It is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants ' tank wagon and the non committal report about its purity.
We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication, does not establish 672 that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale.
We are therefore of opinion that the conviction of the appellants of the offence under section 462 of the Act is correct.
The appeal therefore stands dismissed.
Appeal dismissed.

Summary:
The first appellant No. 1 sent a consignment of mustard oil in a tank wagon from Firozabad, U. P. to itself at Calcutta where it took delivery of the wagon from the railway authorities.
The Food Inspector took samples of the oil from the wagon which on analysis were found to be adulterated.
The appellants were prosecuted under section 462 of the Calcutta Municipal Act, 951 for storing adulterated mustard oil for sale.
The 665 appellants contended that the presumption under sub section
(4) of section 462 that the mustard oil was stored for sale was rebutted in view of certain arrangements between the U. P. Oil Millers Association and the Deputy Commissioner of Police and of a letter written by the appellants to the Association asking that a sample may be taken and tested so that the appellants "may take the delivery of oil only if it is found pure on analysis.
" Held, that this was not sufficient to rebut the presumption '.
that the oil was stored for sale.
The letter did not say that the oil would not be sold; it was not stated as to what would be done if the oil was found to be impure.
There was no arrangement between the Association and the Corporation which was the sole authority to take action.
The arrangement and the letter were a device to make detection difficult.