R. C. Mitter, J. - (1.) This Rule has been obtained by the two petitioners before us who have been convicted of an offence punishable under Section 6 Sub-section 1, Clause (c), Bengal Food Adulteration Act, and each of them sentenced under Section 21 of the said Act to pay a fine of Rs. 150, in default to suffer simple imprisonment for one month. The charge against the petitioners is that they stored for sale adulterated ghee in a shop situate in Katwa bazar within the Municipal limits of Katwa. The finding is that petitioner 2, Dinanath Bhakat, is the owner of the said shop and petitioner 1, Manindra Nath Banerjee, is his shop assistant. The facts which have been established are that on 14th September 1935 Jotish Chandra Dutt, the complainant, who is the Sanitary Inspector of the Katwa Municipality accompanied by some members of the Food Adulteration Committee of the said Municipality took samples of ghee and mustard oil from five shops of the Katwa bazar. No sample was taken from the shop of petitioner 2 on that day. After these samples had been taken, a sample of ghee (we are not concerned with the sample of mustard oil) was sent by the Manager of the shop petitioner 2 to the Municipal office for analysis by the public analyst. This fact was made one of the grounds for defence, but as will indicate hereafter it has got a material bearing on one of the points raised by the petitioners before us, and furnishes an answer to the prosecution. On the next day, that is, on 15th September 1935, the said Sanitary Inspector of the Municipality accompanied by three members of the Food Adulteration Committee went to the shop in question and the Sanitary Inspector asked the petitioner 1 to supply him with ghee and mustard oil. After some hesitation petitioner 1 supplied him ghee and mustard oil. He divided the ghee in three parts as also the oil and sealed them. He then tendered the price which was refused. He then gave to the said petitioner a sealed packet of each of the said articles and sent one of each to the public analyst. The public analyst in the form given in the schedule to the Act gave a certificate sating that the ghee sent to him was grossly adulterated. On the receipt of his report with the sanction of the Municipal Commissioner the protection was started. The public analyst was not examined as a witness. There is no direct evidence that the Sanitary Inspector forthwith after obtaining the articles in express terms notified petitioner 1 his intention to have the articles analysed by the public analyst.
(2.) From the written statement that was filed by petitioner 1, from the trend of cross-examination of the prosecution witnesses and the evidence of the record, it appears that the specific defence was of a two-fold character, namely, (1) that petitioner 2 had no concern with the shop, and (2) that the ghee from which sample was taken by the complainant had not then been stocked for sale in the shop. The first defence is concluded by finding of fact. The second defence is as follows : The shop belonged to the Bhakat Babus. It is an Aratdari shop. The Beparis sent goods which they themselves sell, the Bhakats taking commission only. A Marwari sent to the said Shop 52 tins of ghee. The Manager of the shop allowed him to store them there on condition that samples would be taken and sent for analysis by the public analyst and if his report was favourable, the goods would be sold from the shop on aratari system. If his report was unfavourable or if the result of the analysis be not known within five weeks, the ghee is to be returned to the Marwari, but in the meantime it was to remain only in deposit in the Arat. It is said that in pursuance of this arrangement a sample of ghee was sent by the Manager of the shop for analysis to the Municipal Office on 14th September 1935. The defence in substance was that the ghee in question had not been stocked for sale. This defence has been rightly overruled on the finding that the sample sent by the Manager of the shop to the Municipality on 14th September was sent after sample had been taken by the Sanitary Officer from other shops on 14th September and was sent for the purposes of creating evidence in anticipation that samples from the shop in question would be taken later on for being sent for analysis by the public analyst for starting prosecution, an anticipation which has proved to be correct.
(3.) Before us two substantial points have been taken by the petitioners' advocate, namely, (1) the Sanitary Inspector of the Katwa Municipality was not a person authorised under Section 10 of the Act, and had accordingly no authority to take the samples, (2) that the said officer did not comply with Section 11 inasmuch as he did not state forthwith after his purchase his intention to have the sample examined by the public analyst. It is said by the learned advocate that this omission does not make the certificate of the public analyst evidence of the facts stated therein under Section 14(2) and his report cannot go in as he was not examined as a witness. Under Section 20, Clause (e), the Local Government issued a notification, dated 14th July 1930. The said notification was published in the Calcutta Gazette on 7th August 1930 at p 1205. It runs as follows:- The Health Officer, or where specially authorised by the local authority, which is hereby empowered in this behalf, the Sanitary Inspector or the Food Inspector in the employ of a Municipality or District Board, shall exercise the powers and perform the duties mentioned in Section 10 and 12 of the Act. In any Municipality which has no Sanitary Officer, such function shall be performed by the Sanitary Officers of the District Board of the District concerned with the consent of the District Board.;