Sree Narayan vs The Corporation of Calcutta

Mitter, J.—This is a petition for revision of an order of conviction and sentence tinder Section 461 read with Section 537 of the Calcutta Municipal Act, 1951. The prosecution case was that Petitioner Shri Narayan had stored for sale a large quantity of vegetable oil found to have been adulterated within the meaning of Section 461 of the Act and that Petitioner Tej Ram, who was an employee of Shri Narayan, sold a quantity of that oil to a Food Inspector of the Calcutta Corporation.

Shri Narayan carried on business as a wholesale dealer in. vegetable oil at 54/B Kali Krishna Tagore Street. On July 2,. 1954, a Food Inspector of the Calcutta Corporation purchased a sample of the said vegetable oil, known as Sivaji Brand vegetable oil, which, upon analysis, was found not to contain any Sesame oil. According to Notification No. S.R.O. 780, dated October 21, 1950, promulgated by the Vegetable Oil Products Controller, in exercise of powers conferred upon him by Clause 4(1) of the Vegetable Oil Products Control Order, 1947, at least 5 per cent. Sesame oil was required to be adulterated with vegetable oil product. Indeed, by the Notification concerned there was a prohibition to manufacture, stock or sell any vegetable oil which did not conform, inter alia, to the following proportion:

It shall contain raw or refined Sesame oil (til) not less than 5 per cent......

The failure to conform to the condition as to 5 per cent, of Sesame oil being mixed with or added to vegetable oil product brought the case within the mischief of Section 461 of the Calcutta Municipal Act. The material part of Section 461 of the Calcutta Municipal Act is in these terms:

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.

Section 5(1)(c)(v) of the Calcutta Municipal Act defines "adulterated", inter alia, as follows:

If it does not comply with the standard prescribed therefore by or under this Act or under any other law for the time being in force

The purport of the relative Notification of October 21, 1950, u/s 4(1) of the Vegetable Oil Products Control Order, 1947, has already been stated. According to the prosecution, the failure to comply with the requirements of the said Notification Tendered the vegetable oil product concerned adulterated within the meaning of Section 461 of the Act. Therefore, according to the prosecution, both the Petitioners were guilty u/s 461 read with Section 537 of the Calcutta Municipal Act, 1951.

Mr. Dutta appearing on behalf of the Petitioners has contended that there having been no adulteration within the meaning of the Municipal Act, no prosecution lay u/s 461. He has also contended that a case of this kind; should properly fall u/s 462, and that in this case the State Government not having prescribed any specification or standard for such oil, neither of the Petitioners could be guilty of any offence u/s 462 of the Calcutta Municipal Act. Mr. Dutta has, lastly, contended that the analysis of the samples were not Conclusive, in view of the departure by the analyst from the rules laid down in that behalf. Mr. Dutta has, however, conceded that the oil concerned could properly be regarded as food within the meaning of Section 461. He does not also contest that the oil concerned is edible oil.

The principal question which falls to be determined is whether the failure to conform to the provision as to the addition of Sesame oil of not less than 5 per cent, as required by the Notification under the Vegetable Oil Products Control Order, 1947, brings the case within the latter part of Clause (v) of Sub-section (1) of Section 5 of the Calcutta Municipal Act. Admittedly, no standard for oil of the kind has been prescribed under the Calcutta Municipal Act itself. Clause (v), however, provides that an article, in the case of food, shall nevertheless be deemed to be "adulterated" if it does not comply with the standard prescribed therefore under any other law for the time being in force. Mr. Dutta has not challenged the prosecution case that the Vegetable Oil Products Control Order, 1947, was the law for the time being in force relative to the matters dealt with by it. The question is whether the Notification made in exercise of powers conferred by Sub-clause (1) of Clause (4) of the Control Order prescribed a standard or specification to which vegetable oil products has to conform. That the Petitioners'' oil could properly be regarded as vegetable oil product has not been challenged. Indeed it is the common case of both the parties. In our view, the Notification in question must be regarded as laying down a standard or specification for vegetable oil products which come within the purview of the Control Order. That being so, the absence of any seasame oil in the vegetable oil concerned, of which samples were taken, rendered the vegetable oil adulterated within the meaning of the Calcutta Municipal Act. If, therefore, the oil concerned was adulterated within the meaning of Section 461, the conviction of each of the Petitioners u/s 461 read with Section 537 of the Calcutta Municipal Act cannot be impugned.

The foregoing considerations appear to us to be a complete answer to Mr. Dutta''s argument that there being no standard fixed for vegetable oil under the Act, no prosecution u/s 461 lay. Mr. Dutta''s argument that this was more properly a case u/s 462 of the Act is irrelevant, in view of the fact that Clause (v) of Sub-section (1) of Section 5 of the Calcutta Municipal Act appears to us to be directly applicable to the facts of the case. Section 462 is concerned with the manufacture, sale, etc., of certain articles which are not of the prescribed standard of purity. In the case before us, there is no question that the oil concerned is vegetable oil. It must also be regarded as edible oil, although under the Vegetable Oil Products Control Order, 1947, vegetable oil product is defined to mean any vegetable oil which is subjected to a process of hydrogenation in any form, or any preparation thereof, for cooking purposes containing less than 50 per cent, of hydrogenated vegetable oil. In our view, both the contentions urged by Mr. Datta fail.

Having looked into the evidence, we are satisfied that the tests carried out in the case were in accordance with the requirements of Section 479 of the Calcutta Municipal Act, 1951. There is also no substance in the third point urged by Mr. Dutta.

We have examined the evidence in the case and are not satisfied that it could be safely said that the entire stock was adulterated. The evidence discloses that only one sample was taken from one receptacle in order to brand the rest of the tins, some 147 in number. It was necessary to have more samples taken at random. In the absence of such evidence, we feel constrained to set aside the order of the learned Municipal Magistrate made u/s 476(2) of the Municipal Act. The conviction of each of the Petitioners u/s 461 read with Section 537 and the sentence imposed therefore must, however, be affirmed.

The Rule is disposed of accordingly.

Guha Ray, J.

I agree.