Corpn. Of Calcutta vs M/S. Damodardas J. Vora and Others

This is an appeal by Special Leave u/s 417 (3) of the Code of Criminal Procedure against an order of acquittal.

The prosecution case was as follows :

Messrs Damodardas, J. Vora has a godown at No. 10, Portuguese Church Street. On December 22, 1960, Shri Biswanath Roychowdhury, a Food Inspector under the Prevention of Food Adulteration Act visited the godown and took sample of Jeera from a bag kept in the godown. The Jeera was on analysis by the public analyst found to be adulterated. Messrs Damodar Das J. Vora and respondents 2 to 6, who were described as the Partners of the firm were tried u/s 16(1) (a) read with section 7 (i) of the Act. They pleaded not guilty. The learned Magistrate on a consideration of the materials on record acquitted them. The Corporation of Calcutta has filed this appeal with Special Leave against this order of acquittal. The judgment of the learned Magistrate is wrong on certain points and on the whole is rather confused. The presence of only one witness at the time the sample was taken does not vitiate the prosecution and can be no bar to conviction. Then again, on the question of warranty the learned Magistrate did not apply his mind. The respondents claimed to be commission agents of some firm in Gujarat; they did not claim the Jeera in question as purchaser thereof and so the question of warranty" u/s 19 of the Act hardly arises. Be that as it may, I do not think that this is a fit case for interference with the order of acquittal. The report of the public analyst shows that foreign matter contained in the sample was 13.4 per cent. The limit prescribed in the standard fixed under the Act is 5 per cent. The public analyst has, said that the sample was adulterated because, it contains more than 5 per cent of foreign materials. Under Rule 22 of the Rules under the Act approximately 4 ounces of Jeera should have been sent to the public analyst. The materials on record do not show what quantity of Jeera was sent to the public analyst. The Food Inspector does not say what was the quantity of the sample he took. The Police Officer present with him also does not disclose this. The notice in form No. VI also does not contain this. The Assistant Analyst who analysed the sample and who was examined as witness also could not say this. All that he remembered was that he analysed some 10 grams of Jeera, that would be approximately one-third of one ounce, much less than 4 ounces. Mr. Banerjee. appearing for the Corporation however, submits that the Food Inspector in his report said that he received Jeera of sufficient quantity. This is certainly true but we are not sure that if the quantity sent to the public analyst was 4 ounces. The reason for requiring approximately 4 ounces to be sent is obvious; the reason is that the sample should be a representative sample. Mr. Banerjee submits that even when the requisite quantity is not sent the prosecution should not fail on that ground and refers to the Single Bench decision of this Court in Criminal Appeal No. 200 of 1963. But I find that in that case the Court held as a fact that 4 ounces were sent. Mr. Banerjee then refers to the decision in (1) Nagar Swatha Adhikari, Nagar Mahapalika v. Ant Ram. reported in AIR 1966 Allahabad 32 where following a previous decision of the same High Court it has been held that the mere fact that the quantity of Jalebi sent to the public analyst was less than what is contained in Rule 22 did not by itself constitute any breach of a mandatory provision of the Prevention of Food Adulteration Act or its Rules. The article involved in both these cases was Jalebi and the test was a chemical test and the sample was found to have been coloured with a coal-tar-dye, namely, Orange II, which is not one of the coal-tar-dyes permitted for use in food stuffs under Rule 28 of the Rules. When the test to be made is a chemical test, the quantity sent as sample may not be of much importance but when the article is sought to be declared as adulterated because of the presence of foreign materials exceeding the limits prescribed under the Rules, the quantity sent as sample is very important because unless the sample can be said to be a representative sample, there is possibility of errors in the calculation of the percentage of foreign materials present in the article as a whole. Thus different considerations may arise in case of different tests. Without therefore, deciding as a general principle that the prosecution should fail whenever the quantity prescribed in Rule 22 of the Rules has not been sent as sample, I think that in the peculiar facts of this case and on the materials on record the order of acquittal should not be interfered with.

In the result, the appeal is dismissed.