Duncan Brothers and Co. Ltd. vs State of West Bengal

N.C. Talukdar, J.—These two Rules out of the same order involving the same point and are therefore taken up for disposal together. The Rule in Cr. Rev. Case No. 984 of 1969 is at the instance of the three accused-Petitioners, namely, M/s. Duncan Brothers and Co. Jyotish Chandra Roy and S.S. Agarwalla for setting aside an order dated September 27, 1969, passed by Sri C. Samaddar, Additional Chief Presidency Magistrate/Magistrate, First Class, Calcutta, in Case No. 155D of 1969 framing a charge u/s 16(1)(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 Cr. Rev. Case No. 45 of 1970, is at the instance of the Corporation of Calcutta against the self-same order dated September 27, 1969, 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, u/s 16(1)(a)(i) and (d) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954.

The facts leading on to the two Rules can be put in a short compass. On April 7, 1969, the Corporation of Calcutta through its Food Inspector, Dr. H.S. Mondal, filed a petition of complaint before the learned Chief Presidency Magistrate and Magistrate, First Class, Calcutta, against M/s. Duncan Brothers 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, another employee of M/s. Duncan Brothers and Co. Ltd., u/s 16(1)(i) and (d) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954, alleging, inter alia, that on August 29, 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 for 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. Sr. Nos. 00255 and 00256 were purchased from the seller, Jyotish Chandra Roy, an employee of M/s. Duncan Brothers and Co. (Private) Ltd. after due observance of all the legal formalities; that a tripartite division was made of the samples and one part of each was forwarded to the Public Analyst who opined that the food was adulterated; that thereafter the record was duly submitted to the Health Officer, Corporation of Calcutta; that under his direction and with his consent the complaint was filed praying that processes may be issued against the accused persons u/s 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 article as adulterated food at the cost of the accused u/s 11(5)(b) or u/s 11(5)(a) of the said Act for forfeiture 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, First 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 mistrial 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 September 23, 1969, Sri C. Samaddar, Additional Chief Presidency Magistrate/Magistrate, First Class, Calcutta, discharged the co-accused, K.P. Goenka, R.P. Goenka and A.F. Macdonald, u/s 253(1), Code of Criminal Procedure and framed a charge u/s 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954, against M/s. Duncan Brothers 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 Cr. Rev. Case No. 45 of 1970, while the three accused-Petitioners impugned the order framing the charge against them and the same forms the subject-matter of the Rule in Cr. Rev. Case No. 984 of 1969.

Mr. Sankardas Banerjee, counsel (with M/s. Dinesh Chandra Roy, Nirmal Chandra Das Gupta and Rajat Ghosh, Advocates), appeared in support of the Rule in Cr. Rev. Case No. 984 of 1969 and opposed the Rule in Cr. Rev. 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 Cr. Rev. Case No. 984 of 1969 and supported the same in Cr. Rev. 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 para. 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 (XXIX of 1953) and not under the Prevention of Food Adulteration Act, 1954. The second contention of Mr. Banerjee is on merits, viz., 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 u/s 16(1)(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 mistrial. 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 u/s 16(1)(a)(i) and (d) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954. Mr. Banerjee''s short submission in reply is that the said order of discharge is quite a pertinent order established by the 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 case. He submitted that the order of discharge is quite a clear and cogent one and the findings arrived at by the learned trying Magistrate in this behalf are based on proper reasonings and also the absence of any material on record to warrant such a charge.

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 para. 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 u/s 41 of the Tea Act (Act XXIX) of 1953 or to proceed under para. 10 of the Tea Waste Control Order, 1959. If the article seized be 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 the nature of the Articles seized. In a series of documents, proved by the prosecution itself, namely, Exs. 1 to 7, as also Exs. 9 and 10, the reference is clearly and categorically to tea-waste and that is the declaration of the accused from the very beginning. Exhibit 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 Ex. 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-waste). The position is the same in the sample coupon (Ex. 4) mentioning it to be tea (which the seller declares as tea-waste) and in Ex. 5, the entry in the peon-book, it is stated to be a sample of tea (which the seller declares as tea-waste). Exhibit 6 is the seizure-memo, wherein the article seized has been declared ''as tea (which you declared as tea-waste)''. Exhibit 7, the report of inspection by the Food Inspector, Dr. H.S. Mondal, bearing the date August 29, 1968, 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 484/68 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 khata which contains daily register of purchase arising disposal of tea-waste vide 15(1) of the Tea Waste Control Order, 1959, as 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 Ex.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 Tet Waste Control Order, 1959 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.

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. 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, admits 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 that time; and that the attested copy of the licence as produced was not also placed before him. He ultimately stated that no licence was produced but only a khata. In Ex. 7, however, as mentioned before, there is a clear reference to the licence and the defence contention from the very beginning that it is tea sweepings and not meant for human consumption. Much has been made of the endorsement (Ex. 7/1) by the accused, Jyotish Chandra Roy, made at the instance of the co-accused, S.S. Agarwalla, viz., that ''this is not our say''. But it does not ultimately change the complexion of the case based on a considerable number of documents from Exs. 1 to 6 and also Exs. 9 and 10. When a categorical objection is raised on behalf of the defence from the very beginning that the stuff seized 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-sections (3) and (5) of Section 30 of the Tea 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 tea-waste or tea. In this context the evidence of P.W. 2; Surath Nath Sengupta, an employee of J. Thomas and Co., is 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 had mentioned the sample to be of tea. The benefit of any contradiction in evidence, however, must enure to the accused and not to the prosecution in a criminal case. 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 is tea-waste coming within the ambit of the Tea Waste Control Order, 1959 and not tea coming within the bounds of Act XXXVII of 1954. P.W. 1 does not say that it is not tea-waste, but he states 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 A. 14 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 enure 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 XXIX) 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 the analyst as tea, for be''ng analysed on that footing, has resulted in 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 bring the case within the ambit of Act XXXVII of 1954, any prosecution launched thereunder would be de hors 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 proceedings 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 Northern India Caterers (Private) Ltd. and Anr v. State of Punjab and Anr. (1967) 3 S.C.A. 232 (235) wherein Shelat J. delivering the judgment of the Court observed 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 such 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 provisions 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 the Supreme Court support Mr. Basu''s present submission. The first contention of Mr. Banerjee, accordingly, succeeds.

The point at issue may also be approached from another standpoint, viz., whether there has been a conformance to the procedure established by law. After the passing of the Constitution and as incorporated in Article 21 of the Constitution of India, such a conformance assumes considerable importance. I would refer to the observations of Jessel MR. in the well-known case of Taylor v. Taylor (1876) 1 Ch.D. 426 (431) that

When things are to be done in a particular way, it has to be done in that way alone and not otherwise.

Lord Roche relied on the said observations in a case before their Lordships of the Judicial Committee in Nazir Ahmed v. King Emperor I.R. 63 I.A. 372 (381, 382). Lord Roche approved of the observations 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 Lordships of the Supreme Court in a later case, viz., State of Uttar Pradesh Vs. Singhara Singh and Others, , 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.

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 of 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 facie show an offence alleged hereunder.

Therefore, it can be at once held that a prima facie case has been made out for framing charge u/s 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 eight witnesses were examined on behalf of the prosecution and quite a considerable body of documentary evidence was let in, it is 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 u/s 16(1)(d) of Act XXXVII of 1954 against the co-accused K.P. Goenka, R.P. Gonka 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 (Ex. 7/1) and of Ex. 8, the register 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 Ex.8 and in view of quite a considerable body of oral and documentary evidence, viz., P.W.s 1 and 2 and Exs. 1 to 7 and 9 and 10, the ultimate findings arrived at are very abrupt and not based on that consideration which is required by law in such cases. The findings arrived at by the learned trying Magistrate are, therefore, 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 Cr. Rev. Case No. 984 of 1969, the Rule in Cr. Rev. Case No. 45 of 1970 is not maintainable.

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 August 29, 1968 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 para. 6 of the petition of complaint for destruction or forfeiture u/s 11(5)(b) and Section 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 August 29, 1968, the learned trying Magistrate shall take steps for I disposing of the Articles seized by destruction or otherwise in accordance with law and with notice to both the parties and hearing them.

In the result, I make the Rule absolute in Cr. Rev. Case No. 984 of 1969; set aside the impugned order dated September 27, 1969, framing a charge u/s 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954, against the three accused Petitioners; and I quash the proceedings pending before Sri C. Samaddar, Additional Chief Presidency Magistrate/Magistrate, First Class, Calcutta, in case No. 155D of 1969 u/s 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954. I also discharge the Rule in Cr. Rev 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, u/s 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.