- (1.) The Appellant was convicted under Section 461' read with Section 537 of the Calcutta Municipal Act, 1951, and sentenced to pay a fine of Rs. 1,000. The charge against him was that he had kept for sale and sold a sample of jira which was found on analysis to be stalks only and not jira. The prosecution case was that several bags of the stuff were seized from a cart in front of 8, Mullick Street, and that after these were taken to the police malkhana, the accused appeared there and claimed them to be his own and that he then sold some of that stuff to prosecution witness No. 4, the Food Inspector of the Calcutta Corporation.
(2.) It does not appear to be disputed that the stuff that was produced at the thana contained jira stalks and not jira. The real question is whether there was any storing of these goods for sale by the Appellant or whether there was any sale by the Appellant. Obviously, when these goods were kept at the mdlkhdnd, they were not being kept by the accused there for sale. The question remains whether he committed an offence under Section 461 of the Act by the sale to P.W. 4. What Section 461 of the Calcutta Municipal Act provides is that "no person shall directly "or indirectly himself or by any other person on his behalf, sell, "expose or hawk about for sale, or manufacture or store for sale "any food or drug which is adulterated or misbranded". Quite clearly, this ordinarily means sale voluntarily or willingly made as is made by a trader to his customer. Section 479 of the Act, however, provides that in certain cases a person in possession of goods or exposing goods for sale shall be bound to sell such quantity of the goods as may be required for use as sample for examination. I shall assume that these involuntary sales will be sales within the meaning of Section 461. The question is whether in this case there was a sale under the provisions of Section 470. It is contended by Mr. Banerjee on behalf of the Corporation of Calcutta that as the papers produced show that there was a sale of sample to the Corporation officer, this must be taken to be a sale within the meaning of Section 479. It has to be noticed, however, that under Section 479 any person in possession of or exposing the food or drug for sale shall be bound to sell such quantity of the goods as may be required for use as sample for examination. When the goods were in the malkhana they could not be said to have been exposed there for sale. Could it be said to be in possession of the Appellant? In my judgment, it would be putting an undue strain on the connotation of the word "possess" if one were to say that the goods seized by the police and kept by the police in the malkhana, were still in the possession of the Appellant. The proper view to take, in my opinion, is that the police had by taking the goods to the malkhana deprived the Appellant of the possession of the same. When the goods were in the malkhana, they were not in the possession of the Appellant, but were in the possession of the police officers though the title of the goods might well be in the Appellant. In these circumstances, I am unable to agree that the sale as spoken of by P.W.s 1 and 4 and as sought to be evidenced by the receipts. Exts. 1/2, 1/3 and 1/4, was a sale within the meaning of Section 461 of the Calcutta Municipal Act, 1951. It is reasonable to think that this sale was under orders of the police officer and so not a sale by which the Appellant can be said to have committed an offence.
(3.) The investigating officer who was examined as P.W. 1 did no doubt speak of seizure of the goods but he was himself not present at the seizure and so what he said as regards the place and time of the seizure is hearsay evidence and as such not admissible. If evidence had been given about the seizure, it might have been possible perhaps for the prosecution to-establish a case that the accused was at least attempting to store these goods. No such evidence has, however. been produced and I do not think it will be proper to accede to the suggestion of Mr. Banerjee that the case should be sent back and an opportunity given to the Corporation of Calcutta to adduce evidence to show that there was an attempt by the Appellant to store the goods. It is necessary and desirable that in cases of this nature the prosecutor should come out with all his evidence at the first instance and not depend on one part of what he thinks to be his case.;