Sadhan Kumar Gupta, J. - (1.) This revisional application has been filed under section 397/401 read with section 482 of the Cr. PC. The case of the petitioners is that petitioner No. 4 is a company, registered under the Companies Act, 1956 and is engaged in the business of manufacturing and sale of tea. Petitioner Nos. 1 & 2 are the Directors and the petitioner No. 3 is the Sale Supervisor of the said company. South Port Police Station Case No. 124 of 1993 dated 14.05.1993 under section 120B/272 of the Indian Penal Code was registered against the petitioners on the basis of G. D. Entry No. 1100 dated 14.05.93 by the Sub-Inspector Shri B. Saha. It was alleged in the said G. D. Entry that the complainant received an information to the effect that one Ganesh Prosad with his associates were running a business of adulteration of tea inside a warehouse situated at P-4/4, Watgunge. On the basis of the said information, the police party left the police station for raiding the said warehouse along with two witnesses. On entering into the said warehouse they found that one person was working inside the said warehouse with the help of some labourers. Said person on interrogation disclosed his name as Ganesh Prosad, son of Tribhuvan Prosad one of the partners of the said warehouse. It has been stated therein that the raiding party found huge quantity of gunny bags containing unknown dust appearing to be tea. On being asked Ganesh Prosad produced documents relating to the loaded gunny bags stored in the said warehouse. But on physical verification there was difference in respect of that article. The police party seized some documents as well as some articles from the said warehouse. Samples were obtained from the seized tea and same were sent to Shri N. K. Pramanik, Public Analyst (Food and Water) for analysis. Said Public Analyst submitted his report on 30.06.1993. Petitioner Nos. 1, 2 & 3 were released on bail during investigation. After completion of the investigation the O. C., South Port Police Station, Calcutta submitted chargesheet alleging that a prima facie case under section 120B/272 IPC was made out against the petitioners and against Ganesh Prosad. Learned Metropolitan Magistrate, 3rd Court, Calcutta by his order dated 03.09.97 committed the case to the learned Sessions Judge, City Civil & Sessions Court, Calcutta for trial. According to the petitioners, they are innocent and are in no way connected with the present case. They have claimed that there are illegalities in the drawing of samples and analysing the same by the prosecution agency and as such present proceeding cannot proceed. They have further claimed that the First Information Report did not disclose any offence whatsoever and the continuation of the present proceeding against the petitioners would be an abuse of the process of the Court. The petitioners have claimed that the allegations as made in the criminal case filed against them are absurd in nature and does not disclose any prima facie case against them. As such, the petitioners have prayed that the said criminal proceeding, as pending in the Court of the learned City Sessions Judge, should be quashed.
(2.) I have heard the submissions of the learned Advocates for the petitioners as well as for the State. It appears that a case under section 120B/272 IPC has been started against the accused persons on the ground that they adulterated tea with the intention to make it noxious as drink and with the intention to sale the same and as such they have committed the offence under section 272 of the IPC which runs as follows : "Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such articles as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." It is the case of the prosecution that the present petitioners along with others made criminal conspiracy in committing the offence under section 272 of the Indian Penal Code. Learned Advocate for the petitioners argued that there is no material whatsoever in the chargesheet or in the FIR in order to attract the provisions of section 272 of the Indian Penal Code. According to him, as there is no prima facie case, so the present proceeding is liable to be quashed. In order to substantiate his argument, the learned Advocate for the petitioners argued that the main ingredient of the offence under section 272 Cr. PC is that the accused persons must be proved to have engaged themselves in adulterating the tea in question in order to make the same 'noxious'. There is nothing to show, according to the learned Advocate for the petitioners, that the accused persons were engaged in doing such act. So, according to him, the very basis of the offence under section 272 of the IPC is lacking, so far as the present case is concerned. That apart he has further argued that taking of the sample by the seizing officer and sending the same to the Public Analyst is totally defective. He has criticized the prosecution in this respect by arguing that no steps as provided in the P. F. A. Act were taken and as such on the basis of the report of the Public Analyst, which was given on the basis of the samples so collected by the prosecution agency, the present case cannot stand. As such, he submitted that it must be held that there is no prima facie case against the petitioners and so the present proceeding is liable to be quashed. In this respect, he cited decisions reported in 2004(1) Supreme Court Cases page 256, S. Samuel, M. D., Harrisons Malayalam & Anr. vs. Union of India & Ors., 2000 C Cr LR (Cal) page 444, Kamalesh Purkait & Anr. vs. Sambhunath Dey, Drug Inspector & Anr., 1999(8) Supreme Court Cases page 190, State of Haryana vs. Unique Farmaid (P) Ltd. & Ors. By citing the decision reported in 2004(1) Supreme Court Cases page 256 (supra) the learned Advocate for the petitioners argued that tea is not coming within the definition of foodstuff and as such, according to him the provisions of section 272 IPC is not attracted so far as the present case is concerned. But it appears that the said decision was under Essential Commodities Act. As such, in my considered opinion, said decision is not applicable so far as the present case is concerned. If we read the provisions of section 272 of the Indian Penal Code then it will appear that unlike Essential Commodities Act, food and drink both are included in the said section. Whether the 'drink', which in this case is 'tea' was adulterated by the act of the accused persons or not, cannot be decided at this stage without considering the evidence on the side of the prosecution. As such, I cannot accept this argument of the learned Advocate for the petitioners.
(3.) By citing the decisions reported in 1999(8) Supreme Court Cases page 190 (supra) the learned Advocate for the petitioners argued that as the samples were not taken properly, so the present proceeding cannot proceed and it is liable to be quashed. I have perused the said decision. It appears that the case before the Hon'ble Supreme Court was under the Insecticides Act, 1968. In the said Act there are clear provisions for taking of the sample and sending the same to the Public Analyst. Certain safeguards were also provided in the said Act. As those safeguards and procedures as provided in the said Act, in taking the sample, was not followed, so the Hon'ble Supreme Court was of the opinion that the said case was liable to be quashed. But in the case before us, we find no such provisions in the Indian Penal Code. Nor it is known at this stage as to how the prosecution agency took the sample and in which manner it was sent to the Public Analyst for examination. Unless and until those facts are coming before us, it is not possible for this Court at this stage to hold that the procedure for collecting sample, as taken by the prosecution agency, was illegal. Same can also be said in respect of the decision reported in 2000 C Cr. LR (Cal) page 444 (supra). This decision shows that there the case was under Drugs and Cosmetics Act, 1940. Section 23(4) of the said Act clearly provided the procedure to be followed for collection of sample and for sending the same to the Public Analyst. Here in this case, there is no such provision and as such I am of opinion that this decision is also not applicable sq far as the present case is concerned.;