Roxburgh, J. - (1.) These are three rules against orders passed by the Municipal Magistrate under Section 421, Calcutta Municipal Act. They relate to a large quantity of mustard oil which the Superintendent of Police, 24 Parganas, purchased from different contractors and had for sale to the numbers of police force under him in a ration shop. The only reason that there are three separate cases is that the total quantity of oil with the Superintendent was divided up according to the contractors from whom he had bought it. Nevertheless though this division has been made, the main point before me is an objection by the contractors that they were not allowed to be heard.
(2.) The circumstances are certainly very peculiar. The Superintendent himself, after first having some analysis made by the Public Analyst, moved the Municipal Magistrate for the orders in question to be made. He himself informed the contractors of the proceedings and they duly appeared before the Magistrate. The Magistrate has refused to hear them on the ground that the provisions of Sections 413, 419, 420 and 421 of the Act show that the only person entitled to be heard under Section 421 is the person in whose possession the adulterated food was found. It is almost accidental that the provisions of Section 421 apply at all in the sense that it is only because the oil was with the Superintendent for sale in ration shops and not for issue as rations (with-out payment) to the force that the provisions have any application. But for this accident, probably the course that would have been followed would have been a prosecution on the complaint of the Superintendent of the contractors for selling him adulterated oil under the appropriate provisions of the Calcutta Municipal Act. Personally I think it is unfortunate that in any case this procedure was not followed in the first place. The result has been very anomalous. The proceedings were brought at the instance of the Superintendent obviously with the intimation (intention ?) in some way, if possible, of protecting himself in the event of any question of his having to pay for the mustard oil to the contractors. Clearly there is no thing whatever to prevent a person in the position of the Superintendent who finds that he has noxious food in his possession, to destory it without any reference to the Magistrate for an order. The whole scheme of the sections shows that they are expected to be applied, as a result of vigilance of inspectors and as a means of enforcing destruction, on a person who happens to be found in possession. They never contemplate the person himself going to the Court for an order for some ulterior purpose. The result has been that the leaned Magistrate by examining the provisions of the sections has come to the conclusion that at most the only person entitled to be heard before him is the person in whose possession the adulterated food was found deposited for the purpose of sale and he gives apt reasons pointing out the difficulties that would arise if it were held that it was necessary to trace back the history of the particular article to the various sellers and to give notice to all the various middlemen through whose hands the article might have passed before a destruction could be made. But in the present case the facts are, as I have pointed out, peculiar and different. The whole object of the order in fact is to bind, if possible, the contractors in some way, yet when they were present at the Court at the instance of the Superintendent, who acted very fairly in the matter, then the technical objection was taken and they were not allowed to be heard. The provisions of Section 421 and of the preceding sections are very vague on the question of what procedure is to be followed by the Magistrate and who is to be heard.
(3.) As I read the sections, the assumption appears to be that from the time of seizure the person in whose possession the article seized is found is always present. Section 420 contemplates his giving or refusing consent and Section 421 seems to contemplate that when the food is taken before the Magistrate he again will be present. Section 421 (3) contemplates in fact his being awarded compensation on the spot in appropriate circumstances. There is, however, no specific provision for the procedure in the very peculiar circumstances of the present case. It seems to me that the only fair procedure for the Magistrate to follow was to have heard the persons really interested in the matter, namely, the contractors. As I have pointed out, the cases were divided on the basis of the oil supplied by the several contractors,--a division which was quite pointless if there were no question of the contractors being heard in the matter. It is contended in the fact that the contractors have evidence of a responsible analyst establishing that the oil is satisfactory. It seems to me that in these very peculiar circumstances the Magistrate ought to have allowed them to produce that evidence before he passed the order of destruction.;