Case: M/s. Madan Mohan Damma Mal Ltd. &amp; Another Vs. State of West Bengal &amp; Another

is no direct evidence to the effect that such delivery was taken prior to Dr. Baguis 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. Baguis 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. Baguis 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.10. The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by the appellants, under sub-sec. (4) of S. 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the 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 and 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. 1 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 had nay 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. 1 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. 1 to itself at Calcutta was not 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 adulterated 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. 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 sub-sec. (4) of S. 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.8. 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 400 C was 60.4 and the Belliers test for groundnut oil was positive inasmuch as it gave turbidity at 280 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 106.8 and the appearance of turbidity at 270 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 appellants 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 of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnutthe 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. Baguis 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. Baguis 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. Baguis 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 fromhave considered the various documents which have been referred to in support of the arrangement between the Association and 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. 1 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 had nay 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. 1 to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3,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 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.