P.B.Mukharji, J. - (1.) This is a criminal appeal from the order of conviction passed by a Municipal Magistrate, Calcutta convicting the appellant as the Secretary of a company called Gopalpur Tea Co. Ltd. The learned Magistrate found Gopal pur Tea Co. Ltd. and S. Sarvadhyaksha, representative of the said company guilty under Section 7(1) read with Section16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and convicted the company and sentenced the company to pay a fine of Rs. 2000 which was the maximum under that Act before its amendment in 1964.
(2.) The facts of this case may be stated briefly at the outset. The prosecution case is that on the 15th March 1960 Dr. H.S. Mandal, a Food Inspector of the Corporation of Calcutta went to the godown of M/s. Jalpaiguri Air Travels at 4B, Mechuabazar Street, Calcutta and there he drew samples from two bags of tea sent by Gopalpur Tea Co. Ltd. and sent one of the samples of each to the Public Analyst for analysis. One of the samples was found to be adulterated in so far as it contained crude fibre upto 16.58 per cent which was in excess of the permissible limit of 15 per cent under Rule A14 (f) read with Rule 5 of the Prevention of Food Adulteration Rules 1955 defining the standards of quality of various articles of food specified in appendix B to those rules. Rule A14(5) deals with tea which is the subject matter of controversy in this appeal. The prosecution called P. W. 1 Dr. H.S. Mondal, the Food Inspector. He has proved the samples of the bags lying at the godown of the Air Carrying Corporation and has made it clear that he observed all the legal formalities. The learned Magistrate noted that there was no challenge or suggestion on behalf of the accused that the legal formalities were not observed. He also stated that it is only with great difficulty that he could procure only one such witness namely Sankar Misra and the Tea Board Inspector, P.K. Sen who is P. W. 2. These were the two witnesses to the sampletaking. It is proved that Sankar Misra could not be produced by the prosecution and the summons was returned with the observation that he was not available. Sankar Misra's signature however, appears on Exts. 2 and 3, The learned Magistrate was satisfied that Sankar Misra could not be produced in spite of best efforts of the prosecution and he also held that the defence contention that Sankar Misra was a fictitious person could not be accepted. The evidence of the Food Inspector further is that he took three samples from each bag and sent one sample from each bag to the Public Analyst. The Public Analyst's report is marked Ext. 6 in this case giving the details of his analysis and showing that crude fibre was 16.58 per cent in the sample analysed. Ext. 6 also expresses the opinion that the sample of tea did not conform to the specification in respect of crude fibre and was therefore adulterated within the meaning of the Act and the rules made thereunder. This was the basis of the prosecution. Actually the Assistant Analyst who himself analysed the sample was called as a court witness. His name was Sachindra Nath Dutta. In March 1960, it being noted that the Public Analyst's report is dated 28th March 1960, this Sachindra Nath Dutta was an Assistant Analyst and not then appointed under the Prevention of Food Adulteration Act, but he was to assist the Public Analyst and in fact the analysis was done by him under the supervision of the Public Analyst Indeed, his evidence is that he arrived at the result of the report himself. He got the sample from the hands of the Public Analyst. In fact the sample was received from an Assistant Public Analyst by the name of K. Sahu. According to the rule, namely Rule 22, the sample was approximately 4 oz.
(3.) The Food Inspector clearly establishes that he saw the mark of Gopalpur Tea Co. Ltd, imprinted on the bags and the letters marked Exts. 7 and 8 written for and on behalf of Gopalpur Tea Co. Ltd. by its agent identified the bags from which samples were taken. The bags from which samples were taken were consigned by Gopalpur Tea Co. Ltd.;