AI Structured Summary
Not yet generated for this judgment
Judgment
P.N. Mookerjee, J.—This appeal is directed against a conviction under Sections 462/537 of the Calcutta Municipal Act, 1951, and a
sentence of fine of Rs. 1,000 each on Appellants Nos. 2 to 5, there being no separate sentence on the firm, Appellant No. 1, of which Appellants
Nos. 2 to 4 are the partners.
The facts leading to the prosecution are briefly as follows:
Appellant No. 5, Messrs. Kamalapat Oil Mills, despatched from Kanpur to Calcutta in a Railway tank wagon 442 maunds of mustard oil which
reached the destination. Rathtala Nandibari Railway Siding, Chitpore Area, Calcutta, on or about July 5, 1954. Of this consignment the consignor
in the relative Railway Receipt was the said Appellant No. 5, Messrs. Kamalapat Oil Mills and consignee was self."" The Railway Receipt,
however, bears two endorsements, authorising delivery of the consignment in question to the endorsee,-the first by Appellant No. 5, Messrs.
Kamalapat Oil Mills in favour of the Imperial Bank of India and the second by the Imperial Bank of India, Calcutta, in favour of Appellant No. 1,
Sri Sheo Gouri Oil Mills, and from the Railway authorities delivery of the oil was taken on behalf of the firm, Appellant No. 1. Sri Sheo Gouri Oil
Mills, on July 6. 1954.
In the meantime, one Narendra Nath Sen. an employee of the V.P. Oil Millers Association, had sent a letter to the Deputy Commissioner of
Police, Enforcement Branch, Calcutta, requesting him to examine the above consignment of mustard oil and, the same having been communicated
to the Calcutta Corporation, P.W. 1 Dr. S.K. Ghosh, a Food Inspector in the employment of the Corporation, was deputed to take samples for
purposes of analysis.
On July 6, 1954, P.W. 1 went to the Rathtala Nandibari Railway Siding for the above purpose and there he met Appellant No. 3 Radhashyam
Murarka and also the above Narendra Nath Sen and, eventually, he purchased from the said Appellant No. 3 the requisite quantity of mustard oil
from the consignment in question for purpose of analysis and, as he suspected the oil to be adulterated, he seized the entire consignment.
On analysis, the mustard oil was found highly adulterated with linseed oil and, accordingly, the Appellants were prosecuted by the Calcutta
Corporation under Sections 462/537 of the Calcutta Municipal Act, 1951, for storing for sale adulterated mustard oil and for selling two samples
thereof on July 6, 1954. The material defence, as appearing from the records, was to the following effect:
(i) that there was no storing for sale within the meaning of the relevant statutory provision (Section 462 of the Calcutta Municipal Act, 1951).
(ii) that the sale of the samples was a compulsory sale, not punishable in law, and
(iii) that there was no proper sampling and/or analysis to sustain the charge.
The learned trying Magistrate overruled the defence contentions and convicted all the accused. In passing sentence, however, he took into
consideration the fact that Appellants Nos. 2-4 were partners of the firm Appellant No. 1 and, while sentencing Appellants Nos. 2-4 to pay a fine
of Rs. 1,000 each, he passed no separate sentence on the firm accused Appellant No. 1. The Kanpur Firm Appellant No. 5. was also sentenced
to the same fine of Rs. 1,000. Hence this appeal by the Appellants.
Before me, no objection was taken to the findings of the learned trying Magistrate that the mustard oil in question was highly adulterated with
linseed oil and that the sampling and analysis had been done in sufficient compliance with the statute. It is also undisputed that delivery of the oil had
been taken from the Railway authorities by the partner Radhashyam Murarka (Appellant No. 3) on behalf of the firm Appellant No. 1, Sri Sheo
Gouri Oil Mills, before sale to P.W. 1 for purposes of analysis.
On behalf of the Kanpur firm, Messrs. Kamalapat Oil Mills, (Appellant No. 5), it has been urged in this appeal that there was no storing for sale
by or on behalf of this firm and no sale by or on its behalf and, accordingly, its conviction and sentence cannot stand. In support of the appeal of
the other Appellants, the argument has been of a three-fold character, namely, (1) that there was no storing for sale at all within the meaning of the
relevant penal provision; (2) that the sale of the samples OT the sale for purposes of analysis to the Pood Inspector, P.W. 1, was a compulsory
sale which was not within the mischief of law and (3) that for the same offence, the firm Appellant No. 1 and its partners, Appellants Nos. 2-4,
cannot both be convicted. It has also been urged that the sentences are too severe, particularly having regard to the fact that the request for
examination of the mustard oil was really made on behalf of the Appellants who had no dishonest intention and did not intend to sell the oil in
question or to store it for sale if it was found adulterated on such examination.
In my opinion, on the materials before the Court, the conviction of the Kanpur firm (Appellant, No. 5) cannot be sustained. Its appeal,
therefore, should succeed and the conviction and sentence, passed upon it by the learned trying Magistrate, should be set aside and this Appellant
should be acquitted. This is, indeed, unfortunate as this Kanpur firm was mainly responsible for sending this highly adulterated mustard oil to this
city but, in view of the fact that the charge was only for storing for sale and sale of samples, neither of which can be attributed to this Appellant, its
conviction cannot stand. It is true that the adulterated mustard oil was despatched by this Kanpur firm and it is sufficiently clear also, on the
materials on record, that the same was acquired by sale (purchase) from this Appellant by the firm Appellant No. 1, Sri Sheo Gouri Oil Mills, on
whose behalf delivery was taken from the Railway Authorities by the partner Appellant No. 3 Radhashyam Murarka, but there is no evidence to
show when and where this sale had taken place. The only fact, proved in this connection, is that the Railway gave delivery to the firm Appellant
No. 1 at Calcutta on July 6. 1954, on (he strength of the endorsement in its favour at the back of the Railway Receipt. The endorsement, however,
bears no date and there is nothing to show where it was made. It is true that this endorsement appears to have been made by the Imperial Rank of
India, Calcutta, on the strength of the earlier endorsement by the Kanpur firm (Appellant No. 5) in favour of Imperial Rank of India but the
Corporation has not caused the relevant papers to be produced by the Bank to show when and where tin''s endorsement was made. I am unable
to hold, therefore, that it has been proved in this case beyond reasonable doubt that there was any sale or storing for sale by the Kanpur firm
(Appellant No. 5), within the Calcutta area so as to bring it within the mischief of the Calcutta Municipal Act. I do not think that, if a sale had taken
place outside Calcutta, the storing for sale by the vendee at Calcutta would make the vendor also necessarily liable for an offence under Sections
462/537 of the Calcutta Municipal Act, 1951 and, as at present advised. I am not inclined to hold that the phrase ""directly or indirectly."" appearing
in Section 462 has the effect of bringing within its mischief persons who bad disposed of or parted with the offending article before it reached this
city. The phrase quoted, namely, ""directly or indirectly"", may, in the context, well refer, in my opinion, to the nature of the offending transaction
(which, to be relevant, must take place within the jurisdiction of the Calcutta Corporation) and it may well have been meant to prevent evasion of
the statute by attempts to conceal the real nature of the transaction. As at present advised, I am not prepared to construe that phrase in such a
manner as would have one effect of extending the mischief of the penal provision to persons who had ceased to have any connection with the
offending article before it actually reached this city and were not involved in any offending transaction within the local limits thereof. I do not say
that a broader view is not possible but, as the statute in question is undoubtedly a penal one, the benefit in case of ambiguity or doubtful
interpretation must go to the accused according to well-settled principles. The statute, again, is a local Act and should not be given extra-territorial
operation.
I would, therefore, accept the appeal of the Kanpur firm Messrs. Kamalpat Oil Mills (Appellant No. 5), set aside its conviction and sentence
and acquit it of the offence with which it was charged in this case.
Although I am passing this acquittal order in the case of Appellant No. 5, I cannot help making certain observations on the paucity of the
relevant materials which has compelled me to acquit Appellant No. 5 who was apparently primarily responsible for the adulteration. These
materials, as I have already indicated above, would have been easily available from the Imperial Bank and their production could have been easily
procured, if only proper steps had been taken in that behalf by the Corporation authorities. The failure of the Corporation in this regard is, indeed,
unfortunate and I can only hope that these cases which are intended to safeguard the city''s health would be conducted by them with greater care in
future.
Turning to the appeal of the other Appellants, it seems to me that their appeal must fail, subject to certain modifications. Admittedly, delivery
had been taken by the partner Appellant No. 3 Radhashyam Murarka on behalf of the firm Appellant No. 1, Sri Sheo Gouri Oil Mills. There can
be no dispute also, on the evidence before the Court in the light of the attending circumstances, that the mustard oil in question was intended for
sale by the firm Appellant No. 1, of which the other Appellants Nos. 2-4 were partners. At the time of seizure, therefore, the oil must be held to
have been stored for sale on behalf of the firm Appellant No. 1 and the fact that the oil was in the railway tank wagon is immaterial, because there
also it was kept at the relevant time on its behalf.
As to the offence of sale, however, the position is different. On the materials before me, I am unable to persuade myself that the sale which
was made to the Corporation Food Inspector P.W. 1 was anything but a compulsory sale. On the authorities as they stand at present, it is
practically settled in this Court that a conviction for an offence of sale under the Calcutta Municipal Act cannot be based on a compulsory sale
under the Act (Akhoy Kumar Ghose v. The Chief Executive Officer to the Corporation of Calcutta (1928) 32 C.W.N. 842 (per Chotzner and
Lort Williams, JJ.): vide also Narendra Nath Saha v. Emperor (1946) 51 C.W.N. 260 (per Lodge, J.)). In the case before Chunder, J. (vide Dr.
Makhanlal Bhowmik Vs. Ram Bhakat Sharma and Another, ) the finding, right or wrong was that it was a voluntary sale and on that footing, the
conviction was made and upheld. That case-and same remarks apply to Chunder, J.''s other decision Mohari Lall and Another Vs. The
Corporation of Calcutta, ,-is, therefore, distinguishable. The Bench in Davis Hewlet and Co. Vs. Emperor, could not certainly overrule the earlier
Bench decision in Akhoy Kumar Ghose v. The Chief Executive Officer of the Corporation of Calcutta (1928) 32 C.W.N. 842 to which reference
has been made above. I would, accordingly, set aside the conviction of the Appellants Nos. 1-4 on the charge of sale under Sections 462/537 of
the Calcutta Municipal Act and they are acquitted of that charge.
Clearly, however, as seen above, the offence of storing for sale, alleged to have been committed, has been proved and the question now is as
to the person or persons who are liable for the same. As to this offence of storing for sale, the position is abundantly clear that the firm Appellant
No. 1 and also its partners Appellants Nos. 2-4 are liable. I cannot accept the argument that the firm, Sri Sheo Gouri Oil Mills, being a mere
partnership firm, not registered or incorporated, cannot bo considered to be a person in law and, as such it cannot be convicted or punished.
Section 3(32) of the Bengal General Clauses Act, which applies to the Calcutta Municipal Act, is a sufficient answer to this contention and I would
respectfully follow the decision of Chunder, J., on this point, reported in Anath Bandhu Vs. Corporation of Calcutta, , re-affirmed by him in The
Corporation of Calcutta v. K.M. Sadhukhan and Sons and Anr. Unreported decision of Chunder J in Criminal Revision No. 464 of 1954, dated
July 23, 1954, in preference to the contrary opinion of Sen, J., in the unreported, case of The Corporation of Calcutta v. Ram Gopal Lachmi
Narayan and Co. Unreported decision of Sen J in Criminal Revision No. 166 of 1949, dated November 28,1949 where the learned Judge does
not appear to have considered the matter in its proper perspective and in all its bearings. I am also inclined to think that, in the case of a partnership
firm, the partners also are liable and they can be convicted along with the firm. The principle of vicarious liability extends to these offences under
the Municipal Law where mens rea is not an essential ingredient (vide, Shew Karam v. The Corporation of Calcutta (1912) 16 C.W.N. 455
relying- on Brown v. Foot (1892) 17 Cox CC. 509) and, if the partners also are equally liable with the firm, I do not see any reason why both
cannot be convicted, although, certainly, on the question of sentence this fact that for the same offence both the firm and its partners are being
convicted may well be taken into consideration. The partnership firm is a separate legal entity from the individual partners and there is nothing in
law which forbids the Court from convicting the firm and its partners as well for the same offence. I would, therefore, uphold the conviction of
Appellants Nos. 1-4 on the charge of ""storing for sale"" u/s 462/537, Calcutta Municipal Act and dismiss the appeal of all of them (Appellants Nos.
1-4) to that extent.
I may add here that, so far as the partner Appellant No. 3 Radhashyam Murarka is concerned, his conviction for the above offence of
''''storing for sale'''' may be sustained also on the statutory presumption, contained in Sub-section (4) of Section 462 of the Calcutta Municipal Act,
1951. I agree with Biswas, J., in his view that this presumption would not apply except in the case of actual physical possession (vide, Ram Charita
Ram Bhakat v. District Board of Rajshahi (1937) 41 C.W.N. 1213; ride also Sochi Nandan Pari v. The Chairman, Midnapore District Board.
(1939) 44 C.W.N. 173 and llari Rakshak Datt v. Chairman. District Board. Birbhum (1940) 44 C.W.N. 1139) which further explain the position
and illustrate very clearly the scope and application of the presumption and the basic distinction which has to be borne in mind in that connection
but, on the materials before me, I have no reason to doubt that this Appellant No. 3 was in actual physical possession of the adulterated mustard
oil at the time of its seizure by the Corporation Food Inspector P.W. 1 (vide in particular, the evidence of this P.W. 1) and, as the said Appellant
No. 3. as a partner of the firm Appellant No. 1, was certainly in the habit of storing mustard oil for sale, the statutory presumption would apply
with full force against this Appellant. I am unable to accept Mr. Basil''s argument that, to attract the statutory presumption under Sub-section (4), it
is necessary to prove that the person concerned is in the habit of manufacturing or storing for sale ""like articles'''', that is, articles of the same type
and also adulterated. I do not think that this will be a proper interpretation of the word ''like'', appearing in the quoted expression. In my opinion,
the likeness contemplated is in relation to the nature or type of the article in question and it has nothing to do with its quality. Otherwise one would
be led to this absurdity that the likeness must be proved even to the extent of the adulteration and, unless the person concerned is shown to have
manufactured or stored for sale articles, similar in kind and similarly adulterated, the presumption will not apply. That would be pushing things to
absurd limits and I am not prepared to accept Mr. Basil''s argument. I hold, therefore, that, so far as Appellant No. 3 is concerned, his conviction
is supportable also on the statutory presumption under Sub-section (4) of Section 462.
On the question of sentence, I agree with the learned trying Magistrate that, when the partners (Appellants Nos. 2-4) are being sentenced no
separate sentence ought to be passed in this case on the partnership firm (Appellant No. 1). I am also inclined 1o think that the sentence of tine of
Rs. 1,000 on Appellant No. 3, Radhashyam Murarka, should stand. He took active part in the commission of the proved offence and his case
stands on a different footing from that of the other two partners, Appellants Nos. 2 and 4. With these two Appellants I am prepared to deal with a
little more leniently in the circumstances of the present case and, while they cannot shake off their liability under the law and must suffer conviction,
their sentence may justly be reduced to a fine of Rs. 500 each.
It is only necessary to add that the Appellants plea of bona fides which is irrelevant, so far as their conviction is concerned, when, in these
offences under the Municipal law, no question of mens rea arises, but which may be relevant on the question of sentence-does not impress me. It is
difficult to hold on the evidence before the Court that Narendra Nath Sen''s request to the Deputy Commissioner, Enforcement Branch, for
examination of the mustard oil was made on behalf of the Appellants. I would not, therefore, attach any importance to this part of the Appellants''
case.
In the result, the appeal of Appellant No. 5 Messrs. Kamalapat Oil Mills entirely succeeds and its conviction and sentence are set, aside and
that firm is acquitted: the appeal of the other Appellants, so far as the offence of sale is concerned, also entirely succeeds and their conviction for
that offence is set aside and they are acquitted of that charge; their appeal, however, so far as the other offence of storing for sale is concerned, is
dismissed and their conviction for the said offence under Sections 462/537 of the Calcutta Municipal Act is upheld and the sentence of fine of Rs.
1,000, passed on Appellant No. 3 Radhashyam Murarka by the learned trying Magistrate, is confirmed but the sentence of. Appellants Nos. 2
and 4 Satyauarain and Shyamnarain Murarka are reduced to a fine of Rs. 500 each.
The appeal is disposed of as above.
This Rule is directed against the order of forfeiture, passed by the learned Municipal Magistrate in regard to the adulterated mustard oil which
was seized and of which sample was taken by the Corporation authorities in circumstances which have been set out by me in sufficient detail in my
above judgment, disposing of the connected Criminal Appeal No. 29 of 1955. This order was made on the application of the Corporation of
Calcutta u/s 476 read with Section 481 of the Calcutta Municipal Act, 1951, on production of the sample before the learned Municipal
Magistrate.
In view of my finding, already made, to the effect, inter alia, that the mustard oil in question which was obviously intended for sale and was
actually stored for sale was highly adulterated, its seizure by the Corporation authorities was quite within their competence u/s 474 of the Act and it
was also duly taken before the Municipal Magistrate u/s 476(1) and the learned Magistrate was amply justified in taking action u/s 476(2) and, in
view of the huge quantity involved, he was also clearly right in directing it to be completely denatured by the Corporation ""to make it absolutely
unfit for human consumption ''''in any form so that it may only be utilised by Industrial ""concerns"" instead of destroying it which is the other practical
alternative under the section.
I, accordingly, uphold the action, taken by the learned Municipal Magistrate u/s 476 of the Calcutta Municipal Act and, once that is done, it
follows, almost as a matter of course u/s 481 of the Act, that the mustard oil would be forfeited to the Corporation. The order of forfeiture, passed
by the learned trying Magistrate, must, therefore, be affirmed and this Rule must be discharged.
I order accordingly.