(1.) THIS Rule is at the instance of the two added accused-petitioners, Ratanlal Rostigi and Ramniwas Rostigi for setting aside an order dated the 26th November, 1969 passed by Sri C. Samaddar, Additional Chief Presidency Magistrate and Senior Municipal Magistrate, Calcutta in case No. 73d of 1988, rejecting the objections raised in this behalf by the two added accused persons and refusing to quash the proceedings so far as they are concerned, under section 16 (1) (a) (i) read with section 7 (i) of the Prevention of Food Adulteration Act, 1954.
(2.) THE facts leading on to the Rule are short and simple. A petition of complaint was filed on 29. 10. 69 by a Food Inspector of the Corporation of Calcutta in the court of Sri C. Samaddar, Additional chief Presidency Magistrate and Senior Municipal Magistrate, Calcutta, under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 read with section 7 (i) of the said Act, against the accused M/s. Gour Chandra Dey and Co. and also Gour Chandra Dey, Keshab Chandra Dey and Gopal Chandra Dey described as the partners of the said company. The prosecution case as stated in the petition of complaint inter alia is that on 16. 9. 68 the complainant inspected the shop of the accused at 5/1, Orphan Gunge Market, Calcutta and found some mustard oil in a barrel stored for sale; that a sample of the same bearing F. I. serial No. 003847/48 was purchased from the accused No. 3 Gour Chandra Day after due observance of legal formalities; that on a tripartite division, one part of the sample was sent to the Public Analyst in accordance with law that the mustard oil in the barrel weighing about 175 Kgs. was seized and sealed and kept in the custody of the vendor; and that the public analyst in his report stated that the oil is highly adulterated. Accordingly the complaint was filed praying for the issue of summons against the accused persons fur an offence under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act read with section 7 (i) of the said Act. The learned Senior Municipal Magistrate by his order of the same date issued summons on the accused persons as prayed for 4 witnesses were examined by the prosecution including the Food Inspector, the Public Analyst, an assistant in the Licensing Department, Corporation of Calcutta and the search witness and a charge was framed against the accused persons, who are the opposite-parties Nos. 2 to 5. Thereafter the prosecution witnesses were cross-examined and the accused persons were examined under section 342 of the Code of Criminal Procedure. The defence examined 4 D. W. S. An application at this stage was filed on 5. 7. 69 on behalf of the original accused persons who are the accused opposite-parties Nos. 2 to 5 to the present Rule, praying inter alia that two other persons, who are the accused petitioners in the present Rule may be added as accused under section 20 of the Prevention of Food Adulteration Act, 1954 inasmuch as it would appear from the evidence on the record that the manufacturer of the mustard oil is Ramasankar Oil Mill, whereof Ratan Lal Rostigi and Ramniwas Rostigi are the proprietors. It was further stated that the oil had been kept in the same condition as obtained from the aforesaid mill. The learned Municipal Magistrate thereupon held that Ramasankar Oil Mill of 107/1/a, Tollygunge Road, Calcutta, is also concerned as a distributor or the dealer of the mustard oil in question in respect of the offence alleged and accordingly ordered that the said mill and also the two proprietors are impleaded in the case and directed the issue of summons under section 16 (1) (a) (i) read with section 7 (i) of the Prevention of Food Adulteration Act, 1954. The added accused persons then appeared before the learned trying magistrate and the prosecution case was opened afresh in view of the fact that the earlier depositions had been recorded in their absence. The prosecution proceeded to examine 5 witnesses of whom 4 had been examined before and closed the evidence. The date was fixed for a consideration of the charge. At that stage an application was filed on behalf of the other accused persons viz. , the accused petitioners Nos. 2 to 5 stating that the prosecution evidence was not sufficient to make out a case against all the accused and further prayed for permission to examine the defence witnesses. A written objection was filed on the 5th July, 1969 on behalf of the added accused impugning the aforesaid prayer as bad in law. The learned Senior Municipal Magistrate ultimately by his order dated the 26th November, 1969 allowed the prayer of the original accused opposite parties Nos. 2 to 5 and overruled the objection raised by the added accused. This order has been impugned and forms the subject-matter of the present Rule.
(3.) MR. J. N. Ghosh, Advocate (with Messrs. Pradeep Kumar Ghosh and Sekhar Kumar Bose, Advocates) appearing in support of the Rule on behalf of the two added accused-petitioners, made a two-fold submission. The first contention of Mr. Ghosh is one of law relating to the interpretation of the word "dealer" in section 20a of the Prevention of Food Adulteration Act, 1954 viz. , that on a proper interpretation, the provisions of section 20a of Act XXXVII of 1954 do not apply to the present case and as such the impleading of the added accused petitioners therein has been bad in law and improper inasmuch as the original accused persons placed on trial are "dealers" of the article of food in question viz. , mustard oil. The second contention of Mr. Ghosh touches procedure viz. , that the learned trying magistrate has erred in allowing the original accused persons to examine the defence witnesses, who has already given evidence, in the presence of the added accused persons, instead of proceeding to consider the charges to be framed. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Mukti Prasanna Mukherjee, Advocate) appearing on behalf of the original accused opposite-party No. 2, opposed the Rule and submitted that there has been no misinterpretation of section 20a of the Prevention of Food Adulteration Act, 1954 on the part of the learned trying magistrate and the objection taken on this count by the petitioners is not sustainable in law. Mr. Banerjee next contended that the procedure adopted is quite in accordance with law, being in conformance to the provisions of section 20a of the Prevention of Food Adulteration Act, 1954. Mr. Sunil Kumar Basu, Advocate, appearing on behalf of the opposite party No. 1, the Corporation of Calcutta, supported Mr. Banerjee and submitted that the interpretation given by Mr. Ghosh to the provisions of section 20a of the Prevention of Food Adulteration Act, 1954 is contrary to the intention of the legislature as incorporated therein and would result in nullifying the said section. Mr. Basu also contended that there has been no defect in procedure as alleged or at all and the learned Municipal Magistrate has proceeded properly in allowing the original accused persons to examine the defence witnesses already examined, in the presence of the added accused persons.;