N.C. Talukdar, J. - (1.) This appeal is by the Corporation of Calcutta against an order dated the 30th November, 1968 passed by Sri A. K. Dutta, Additional Chief Presidency Magistrate, Calcutta acquitting the two accused respondents under section 16(1)(a)(i)/7(i) of the Prevention of Food Adulteration Act, 1954 in Case No. 22D of 1968.
(2.) The facts leading on to the appeal are short and simple. On the 14th of August, 1967 the Food Inspector of the Corporation of Calcutta inspected the shop of the accused situated at BG23/1 Orphangunj Market Calcutta and suspecting the quality of mustard oil stored in a tin container weighing about 16 Kgs. took sample therefrom after observing the formalities laid down in the Act and the Rules framed thereunder in the presence of local witness. A tripartite sub-division was made after the sample was taken by piercing the tin with a sharp instrument and drawing the oil in a mug supplied by the vendor. A part of the same was sent to the Public Analyst who reported ultimately that it was adulterated because it exceeded the standard laid down for saponification being 177-4 surpassing the then limit of 16 as laid down in paragraph A. 17.06 of Appendix B of the Prevention of Food Adulteration Rules, 1955. The-present prosecution was accordingly launched under Section 16(1)(a)(i) read with section 7(1) of the Prevention of Food Adulteration Act, 1954 against M/s. Gopal Chandra Dey having two partners Mrityunjoy De and Pabitra Bhusan Dey and also the seller Madhusudan Dey. Ultimately charge was framed against two accused only M/s. Gopal Chandra Dey and the seller Madhusudan Dey. The defendants case inter alia is that the accused are not guilty that there has been a nonconformance to the mandatory provisions relating to the taking of sample by the Food Inspector that in view of the extended limit proposed for saponification, there was no offence committed, as alleged, at all; and that on merits there was no case against the accused persons under the offence charged. Four witnesses were examined on behalf of the prosecution and some exhibits were proved and as a result of the trial, the learned Additional Chief Presidency Magistrate by his order dated the 30th November, 1968 acquitted the two accused respondents of the offence charged. This order was impugned and special leave was granted. The appeal was thereafter admitted. Mrs. Mukti Moitra, Advocate, appearing on behalf on the Corporation of Calcutta has made a two fold submissions. Mrs. Moitra submitted in the first instance, that the approach made by the learned Additional Chief Presidency Magistrate has been wholly bad because he has relied on the evidence of D.W. 1. As to what should constitute the proper standard for saponification as also one circular (Ext. A) which was not yet incorporated as standard in paragraph A.17.06 of appendix B of the Prevention of Food Adulteration Rules by any amendment to the Act or to the Rules as constituting the enhanced ceiling for saponification value for mustard oil. Mrs. Moitra contended in the next place, that on merits also this was a clear case of adulteration and the learned Additional Chief Presidency Magistrate proceeded upon unwarranted hypotheses and assumptions and not on the evidence on the record in acquitting the accused respondents. Mr. Sunil Kumar Basu, Advocate appearing on behalf of the two accused respondents besides giving reply to the two points raised on behalf of the complainant appellant by Mrs. Moitra, raised one of his own by way of a preliminary objection. The preliminary objection raised is to the effect that the petition of complaint having proceeded on the footing that Dr. Atal Chandra Biswas, a Food Inspector, is the complainant, and this being the averment in the material paragraphs of the said petition of complaint the Corporation of Calcutta is not the proper appellant within the ambit of section 417 (3) of the Code of criminal Procedure. Therefore, this appeal is incompetent, as having been filed by a person not otherwise authorised to file the same. As to the two fold submissions advanced by Mrs. Moitra Mr. Basu's reply in the first instance is that on merits there is no case to implicate ultimately the accused respondents and the court of fact has very rightly acquitted them. As to the other submission of wrong approach based on the evidence of D.W. 1 and Ex. A. Mr. Basu contended that the learned Magistrate's judgment is not based on these two alone but also on other materials. In any event, even if it was so in view of the nature of the evidence on record the benefit thereof should be given to accused respondents who, after all is said and done, were acquitted in a criminal trial and the presumption of innocence with which they had started was confirmed by the factum of acquittal as observed by their Lordships of the Supreme Court.
(3.) Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on the record, I hold that there is no force behind the preliminary objection raised by Mr. Basu. On a reference to the petition of complaint it appears that the complainant is the Corporation of Calcutta through Dr. Atal Chandra Biswas and a reference to the material provisions of section 20 of the Act XXXVII would make the the same abundantly clear. Section 20(1) lays down that "no prosecution for an offence under this Act shall be instituted except by or with the written consent of the state Government or a local authority or a person authorised in this behalf by the State Government or a local authority". This point was not raised at all in the court below and therefore has not been traversed by the learned Additional Chief Presidency Magistrate and it is difficult at this stage to hold whether the prosecution was instituted and it is difficult at this stage to hold whether the prosecution was instituted by a person authorised in this behalf by the local authority. In any event, the objection of Mr. Basu centres round the form of appeal in this court without the bounds of Section 417 (3) of the Code of criminal Procedure and he pinpointed the fact that such an appeal can only be filed by the complainant and in that context be submitted that the complainant in the court below is not really the Corporation of Calcutta but the Food Inspector. Here, however, the Corporation of Calcutta has been stated to be the complainant appellant and therefore, the appeal is defective. It is difficult to agree with the said contention of Mr. Basu. Mrs. Moitra in this context referred to the case of Dhian Singh v. Municipal Board Saharanpur and another, 1973 FAC 404 , where in Hegde, J. delivering the judgment of the court held that where a complaint for an offence under the Food Adulteration Act was purported to have been filed by the Municipal Board, but it was signed by its Food Inspector; the Municipal Board was competent to file appeal under section 417(3) of the Code of Criminal Procedure against the acquittal of the accused. It was further held that the Municipal Board being a local authority was competent to file complaint in view of section 20 of the Prevention of Food Adulteration Act, 1954 and it was also competent for the Board to authorise someone else to file complaints under the Prevention of Food Adulteration Act on its behalf. Although the complaint was signed by the Food Inspector, it was competent for the Municipal Board to authorise him to file the complaint. I, accordingly hold that the filing of the appeal by the Corporation of Calcutta before this Court has not in any way vitiated the same. Moreover this point was not taken at an earlier stage. The preliminary objection taken by Mr. Basu accordingly fails.;