# AND ANR v. THE STATE OF WEST BENGAL AND ANR

- **Citation:** [1961] 2 S.C.R. 664
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** CRIMINAL APPELLATE . JURISDICTION: Criminal Appeal No. 118 of 1959
- **Bench:** Jafer Imam, A. K. Sarkar, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-anr-v-the-state-of-west-bengal-and-anr-2021
- **Pages:** 9

## Headnote

Food Adulteration-Storing adulterated oil for sale-Presumption, rebuttal of-Calcutta Municipal Act, r95r (W.B. XXXIII of
r95r), s. 462.
The first appellant No. l sent a consignment of mustard oil
in a tank wagon from Firozabad, U. P. to itself at Calcutta
where it took delivery of the wagon from the railway authorities. The Food Inspector took samples of the oil from the
wagon which on analysis were found to be adulterated. The
appellants were prosecuted under s. 462 of the Calcutta Municipal Act, 1951, for storing adulterated mustard oil for sale. The
2 S.C.R. SUPREME COURT REPORTS
665
appellants contended that the presumption under sub-s. (4) of
r960
s. 462 that the mustard oil was stored for sale was rebutted in
view of certain arrangements between the U. P. Oil Millers
M/s. Madan
Association and the Deputy Commissioner of Police and of a Mohan Damma
letter written by the appellants to the Association asking that a
Mal Ltd.,
sample may be taken and tested so that the appellants "may
& Anoth•r
take the delivery of oil only if it is found pure on analysis."
v.
Held, that this was not sufficient to rebut the presumption The State of West
that the oil was stored for sale. The letter did not say that the Bengal & Another
oil would not be sold; it was not stated as to what would be
done if the oil was found to be impure. There was no arrangement between the Association and the Corporation which was
the sole authority to take action. The arrangement and the
letter were a device to make detection difficult.
CRIMINAL
APPELLATE . JURISDICTION:
Criminal
Appeal No. 118 of 1959.
Appeal by special leave from the judgment and
order dated July 2, 1957, of the Calcutta High Court
in Criminal Appeal No. 101 of 1956 arising out of the
judgment and order dated January 16, 1956, of the
Second Court of the Municipal Magistrate, Calcutta,
in case No. 208B of 1955.
O. B. Aggarwala, B. B. Tawakley and B. P. Maheskwari, for the appellant.
Nalin Chandra Bannerjee, Sunil K. Basu, S. N.
Mukherjee for P. K. Bose, for the respondent No. 2.
1960. November 24.
The Judgment of the Court
was delivered by
RAGHUBAR DAYAL, J.-This is an appeal by special
Raghubar
leave against the order of the Calcutta High Court
Dayal, J.
affirming the conviction of the appellants Messrs.
Madan Mohan Damma Mal Ltd., and Om Prokash
Manglik, its Manager, under s. 462 of the Calcutta
Municipal Act, 1951 (W. B. XXXIII of 1951) hereinafter called the Act.
The facts leading to this appeal are that Messrs.
Madan Mohan Damma Mal Ltd., (hereinafter called
appellant No. 1) sent a consignment of mustard oil,
about 499 maunds in weight, from Firozabad, the
place of manufacture, to itself, at Calcutta, on December 25, 1954, in tank wagon No. 75612. This wagon
was placed at the Pathuria.ghat siding at Calcutta at
666
SUPREME COURT REPORTS
[1961]
z96o
a.bout 8.45 a..m., on Ja.nua.ry 3, 1955. Dr. Nitya.nanda.
Bagui, Food Inspector of the Calcutta. Corporation,
M/s, Madan
Mohan Damma accompanied by certain police officers, went to that
Mal Ltd..
siding and took three samples of mustard oil containe- Another
ed in this wagon, after arranging with Om Prokash
v.
M:anglik, appellant No. 2, who was found near the
Th• Stat• 0! West wagon, the purchase of 12 ounces of oil for annas
Bengal c;. Another eight. He took the sample of oil in three phials. They
llaghubar
were properly sealed. One of them was given to appelDaya1. J.
lant No. 2.
The other two were ke.pt by Dr. Bagui.
He sent one of them to the Public Analyst for examination, the same day. Ashit Ranjan Sen, the Public
Analyst, examined the oil contained in that phial on
January 3, 1955, but could not come to any positive
opinion about its purity. Dr. Bagui, however, seized
the tank wagon that evening, sealed it with the Corporation's seal and left it in the custody of appellant
No. 2. The oil in the tank was allowed to be removed
to the godown of the appellants on January 6, 1955.
The lock of the godown was then sealed with the seal
of the Co

## Text

664
SUPREME COURT REPORTS
(1961]
•96o
that a penalty paid for an infraction of the law, even
though it may involve no personal liability in the
Haji Aziz
f
fi
£
v.
sense o a ne imposed or an offence committed, is
Commissioner of wholly and exclusively laid for the business in the
In•ome Tax
sense as those words are used in the oases that have
been discussed above. In our opinion, no expense
Kapur J.
which is paid by way of penalty for a breach of the
law can be said to be an amount wholly and exclusively laid for the purpose of the business. The distinction sought to be drawn between a personal liability and a liability of the kind now before us is not
sustainable because anything done w hioh is an infraction of the law and is visited with a penalty cannot
on grounds of public policy be said to be a commercial expense for the purpose of a business or a disbursement made for the purposes of earning the profits of such business.
In our opinion the High Court rightly held that the
amount claimed was not deductible and we therefore
dismiss this appeal with costs.
Appeal dismissed.
M/S. MADAN MOHAN DAMMA MAL LTD.
AND ANR.
v.
THE STATE OF WEST BENGAL AND ANR.
(JAFER IMAM, A. K. SARKAR and RAGHUBAR
DAYAL, JJ.)
Food Adulteration-Storing adulterated oil for sale-Presumption, rebuttal of-Calcutta Municipal Act, r95r (W.B. XXXIII of
r95r), s. 462.
The first appellant No. l sent a consignment of mustard oil
in a tank wagon from Firozabad, U. P. to itself at Calcutta
where it took delivery of the wagon from the railway authorities. The Food Inspector took samples of the oil from the
wagon which on analysis were found to be adulterated. The
appellants were prosecuted under s. 462 of the Calcutta Municipal Act, 1951, for storing adulterated mustard oil for sale. The
2 S.C.R. SUPREME COURT REPORTS
665
appellants contended that the presumption under sub-s. (4) of
r960
s. 462 that the mustard oil was stored for sale was rebutted in
view of certain arrangements between the U. P. Oil Millers
M/s. Madan
Association and the Deputy Commissioner of Police and of a Mohan Damma
letter written by the appellants to the Association asking that a
Mal Ltd.,
sample may be taken and tested so that the appellants "may
& Anoth•r
take the delivery of oil only if it is found pure on analysis."
v.
Held, that this was not sufficient to rebut the presumption The State of West
that the oil was stored for sale. The letter did not say that the Bengal & Another
oil would not be sold; it was not stated as to what would be
done if the oil was found to be impure. There was no arrangement between the Association and the Corporation which was
the sole authority to take action. The arrangement and the
letter were a device to make detection difficult.
CRIMINAL
APPELLATE . JURISDICTION:
Criminal
Appeal No. 118 of 1959.
Appeal by special leave from the judgment and
order dated July 2, 1957, of the Calcutta High Court
in Criminal Appeal No. 101 of 1956 arising out of the
judgment and order dated January 16, 1956, of the
Second Court of the Municipal Magistrate, Calcutta,
in case No. 208B of 1955.
O. B. Aggarwala, B. B. Tawakley and B. P. Maheskwari, for the appellant.
Nalin Chandra Bannerjee, Sunil K. Basu, S. N.
Mukherjee for P. K. Bose, for the respondent No. 2.
1960. November 24.
The Judgment of the Court
was delivered by
RAGHUBAR DAYAL, J.-This is an appeal by special
Raghubar
leave against the order of the Calcutta High Court
Dayal, J.
affirming the conviction of the appellants Messrs.
Madan Mohan Damma Mal Ltd., and Om Prokash
Manglik, its Manager, under s. 462 of the Calcutta
Municipal Act, 1951 (W. B. XXXIII of 1951) hereinafter called the Act.
The facts leading to this appeal are that Messrs.
Madan Mohan Damma Mal Ltd., (hereinafter called
appellant No. 1) sent a consignment of mustard oil,
about 499 maunds in weight, from Firozabad, the
place of manufacture, to itself, at Calcutta, on December 25, 1954, in tank wagon No. 75612. This wagon
was placed at the Pathuria.ghat siding at Calcutta at
666
SUPREME COURT REPORTS
[1961]
z96o
a.bout 8.45 a..m., on Ja.nua.ry 3, 1955. Dr. Nitya.nanda.
Bagui, Food Inspector of the Calcutta. Corporation,
M/s, Madan
Mohan Damma accompanied by certain police officers, went to that
Mal Ltd..
siding and took three samples of mustard oil containe- Another
ed in this wagon, after arranging with Om Prokash
v.
M:anglik, appellant No. 2, who was found near the
Th• Stat• 0! West wagon, the purchase of 12 ounces of oil for annas
Bengal c;. Another eight. He took the sample of oil in three phials. They
llaghubar
were properly sealed. One of them was given to appelDaya1. J.
lant No. 2.
The other two were ke.pt by Dr. Bagui.
He sent one of them to the Public Analyst for examination, the same day. Ashit Ranjan Sen, the Public
Analyst, examined the oil contained in that phial on
January 3, 1955, but could not come to any positive
opinion about its purity. Dr. Bagui, however, seized
the tank wagon that evening, sealed it with the Corporation's seal and left it in the custody of appellant
No. 2. The oil in the tank was allowed to be removed
to the godown of the appellants on January 6, 1955.
The lock of the godown was then sealed with the seal
of the Corporation. M:r. Sen reported on January 4,
1955, that the oil was adulterated. He sent a detailed
report about the result of the examination on January
24, 1955. On receipt of the. report about the mustard
oil being adulterated, Dr. Bagui filed a complaint
against the appellants on February 4, 1955, with respect to their selling and keeping for sale mustard oil,
a sample of which was found on analysis to be
mustard oil which was adulterated with groundnut
oil.
During the course of the trial, the trial Court, on an
application on behalf of the appellants, ordered the
despatch of the third sample phial of the oil in the
custody of the Corporation's Health Officer, to the
Director of Health Services, Government of West
Bengal, for analysis and report. This sample was
analysed by Dulal Chandra Dey, Court Witness no. 1,
and found to be adulterated with groundnut oil. The
report of the Analyst was, however, sent to the Court
under the signature of Dr. S. K. Chatterjee, D. W. 2,
Deputy Director of Health Services, Government of
West Bengal,
2 S.C.R. SUPREME COURT REPORTS
667
The appellants appear to have sent the sample of
r96o
oil in their possession to Om Prakash, Oil Expert to
M 1 M d
the U.P. Government, who reported on July 27, 1955, Moh;~ ;a~:a
that the sample 'conforms to Agmark Specification for
Mal Ltd;;--
Mustard Oil and is considered to be free from adulte-
&- Another
rants such as sesame, groundnut and linseed oil'. This
v.
h
h
b
d
l"he State of West
report, owever, as not een prove .
Bengal &- Another
The Deputy Commissioner of Police, Enforcement
_
Branch, Calcutta, sent a sample of mustard oil on
Raghubar
J,anuary 10, 1955, to the Pub1ic Analyst, Food &
Dayal, J.
Water, West Bengal Public Health Laboratory. Sri
S. N. Mitra, D. W. 7, examined this sample and
reported, on the basis of its saponification value to be
173.3, and iodine value to be 105, that the sample
approximated to the standards of genuine mustard oil.
This report does not establish that the sample was of
pure mustard oil. Sri Mitra's reply to the query from
the Deputy Commissioner of Police for clarification,
makes this very clear. It is:
"But, unless conclusive evidence of the presence
of a foreign oil, corroborated in some instances by the
figures of the usual oil contents, is obtained, the
sample is not and cannot be declared adulterated. In
the present case the sample of mustard oil has already
been examined exhaustively and has been certified as
'approximating to standards' but not as genuine. The
legal implication of the expression is that the sample
will have the benefit of doubt."
Further, there is no good evidence on the record to
establish that the sample sent to Sri Mitra was a
sample from the appellants' tank wagon.
Dr. Bagui does not depose about the police people
taking a sample of oil. He was not questioned about
the police taking any sample of the oil. There seems
to be no good reason for the police taking a sample of .
oil for the purpose of analysis and finding out whether
the mustard oil was pure or not. The case put to
Dr. Bagui during his cross:examination, on behalf of
the appellants, appears to have been that he himself
had taken four samples of the mustard oil in question
and that one of those samples was sent to the Enforcement Branch. Dr. Bagui denied that he had taken
668
SUPREME COURT REPORTS
[1961]
r96a
four samples of the mustard oil, tlis statement is fully
corroborated by the statement ofKalidas Ganguli, SubM {s. M ndrin
I
C 1
E ,.
h
p 1
Mahan n .. mma nspector,
a cutta
niorcement Brano ,
o ice
Mal Ud.,
Department, who had accompanied Dr. Bagui on the ·
& Anoth•r
occasion. He stated that the Corporation Food Inspecv.
tor took three samples and the police took the one
Th• Stat. 01 w"' sample which was sealed with the Corporation seal.
Bengal & An°1"" We are not satisfied that the police actually took one
Raghnbar
sample of the oil and had it sealed with the CorporaDa>f<l, J.
tion seal as deposed to by Kalidas Ganguli.
The Courts below found dn the evidence that the
mustard oil in the appellants' tank wagon was adulterated with groundnut oil, that the appellants were
in possession of that oil and had stored that oil for
sale, in view of the presumption arising under subs. (4) of s. 462 of the Act, and which had not been rebutted on behalf of the appellants. Learned counsel
for the appellants has questioned the correctness of
these findings.
We have considered the evidence in connection with
the analysis of the samples of mustard oil by the
Chemists. Ashit Ranjan Sen, P.W. 2, Public Analyst,
who examined the first sample sent by Dr. Bagui on
January 3-4, 1955, found it adulterated, on the basis of
the data that the B. R. Index at 40° C was 60.4 and
the Bellier's test for groundnut oil was positive inasmuch as it gave turbidity at 28°C.
Court Witness
no. 1, Dula! Chand Dey, who actually analysed the
sample sent by the Court, also found it adulterated,
on the basis of his obtaining the sa ponification value
to be 175.5, iodine value to be 106·8 and the appearance of turbidity at 27°C. He also found indication of
the presence of a small amount of linseed oil. The
. correctness of his opinion on these data is admitted by
Sri Mitra, D.W. 7. In these circumstances, the finding
of the Courts below that the mustard oil in the appelants' tank wagon was adulterated is correct. It is not
established that the sample of mustard oil sent to Sri
Mitra by the Deputy Commissioner of the Enforcement Branch contained mustard oil from this tank
wagon. The opinion of Sri Mitra about the nature of
that sample therefore does not go against the opinion
2 S.C.R. SUPREME COURT REPORTS
669
of Sri Sen and Sri Dey that the mustard oil analysed
r96o
by them was adulterated with groundnut oil.
M/s. Madan
The other contention for the appellants is that they JI.Johan Damma
· were not in possession of the oil when the sample of
Mal Lid.
mustard oil was taken by Dr. Bagui and that therefore
& Another
no presumption under sub-s. (4) of s. 462 of the Act
v.
can be raised against them for holding that the oil The State 01 West
d £
I
It
f
th . d
£Bengal & Another
was store
or sa e.
appears rom
e JU gment o
_
the High Court under appeal that it was not disputed
Raghubar
at the hearing before it that the appellants were in
Dayal J.
possession of the mustard oil whose sample had been
taken. On the evidence on the record we are of opinion that they were in possession of the mustard oil.
The consignment of oil was from the manufacturing
firm, appellant no. l, to itself at Calcutta. Its manager,
appellant no. 2, took delivery of the wagon from the
railway authorities on January 3, 1955. There is no
direct evidence to the effect that such delivery was
taken prior to Dr; Bagui's taking sample of the mustard oil. But the circumstances, in our opinion, conclusively establish that appellant no. 2 had taken
delivery of the wagon prior to Dr. Bagui's visit and
taking samples of oil from the wagon.
Appellant
no. 2 is not expected to and could not have got the
wagon opened for the purpose of taking samples of
oil, if he had not taken delivery of the wagon from
the railway authorities. The railway authorities themselves would have seen to it that nobody tampers with
the contents of the wagon in its charge. Appellant no.
2 must have therefore paid the freight for the wagon
prior to Dr. Bagui's visit and thus obtained delivery
of the wagon. It was thereafter that he got control
over the wagon and was in a position to take out oil
from it or to permit anyone else to take out oil. We
therefore hold that the appellants were in possession
of the oil in the tank wagon when Dr. Bagui took
samples of the oil from it.
The main contention, however, for the appellants
is th;i.t the presumption that the mustard oil was
stored for sale by the appellants, under sub-s. (4) of
s. 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the
85
670
SUPREME COURT REPORTS
[1961]
I9oo
U. P. Oil Millers Association and the Deputy Commissioner of Police, Enforcement Branch, and the letter
::1;~ Ni,:':;.;. of the appellants to the Secretary of the Association
Mot ltd.
(Exhibit R) on January 3, 1955.
We have considered
& Another
the various documents which have been referred to in
v.
support of the arrangement between the Association
The State 0! West and the Deputy Commissioner, Enforcement Branch,
Bengal !:__Anoth" but do not find therein anything which would restrain
Raghubar
legally the appellants from selling the oil even if it is
Dayal J.
found to be adulterated.
The proceedings of the
meeting of the U. P. Oil Millers Association held on
June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement
Branch show that no such agreement has been arrived
at. Even the suggestion of the Deputy Commissioner
that all the members of the Association should write
to their respective mills that all the quantity of oil
which would be imported should at first be passed and
then made delivery of, was not fully accepted, the
members simply stating that they always and invariably imported pure mustard oil. It was, however,
decided that the samples of oil be taken from the next
morning, i.e., June 10, 1954. We however find that
in November 1954 the U. P. Oil Millers Association
wrote to appellant no. 1 that according to the decision
of the Deputy Commissioner of Police, Enforcement
Branch, every application to draw sample and test it
should be accompanied by a certificate signed by the
Chemist or the Manager or the Proprietor of the Mills
to the effect that the mustard oil in the tank wagon
was pure mustard oil free from Argemoni, linseed or
any other adulteration, and that in February 1955 and
April 1955, the Deputy Commissioner of Police, Enforcement Branch had to remind the U. P. Oil Millers
Association that it should advise all its members that
whenever they indent any mustard oil from outside
Bengal, they would see that the railway receipts be
accompanied by a clear certificate of examination
from the Chemist of the factory who examined the
same. Such directions from the Deputy CC'mmissioner
of Police, Enforcement Branch, do not appear to have
2 S.C.R. SUPREME COURT REPORTS
671
had any great effect, as the consignment of oil receiv1960
ed by the appellants was without any such certificate.
M/s. Madan
Mahendra Kumar Gupta, D.W. 1, Chemist of the Mohan Damma
appellants' mill, deposed however that he had taken
Mal Ltd.
the sample of the oil sent in that wagon and found it
& Another
to be genuine mustard oil, free from any adulteration.
v.
1\ny such. certificate about the purity of t~e musta~d ~~:g::a: ~n:::::
oil sent is not proved to have accompanied the rail-
·-
way receipt and tc;> have been shown or made over to
Raghubar
Dr. Bagui, or to the Police Officers who had accomDayal J.
panied him at the time. Letter Exhibit R was sent
on behalf of appellant no. 1 to the Secretary of the
U. P. Oil Millers Association at 10 a.m., on January3,
1955. The letter said:
"Please arrange for sample and test through the
proper authorities concerned, so that we may take the
delivery of oil only if it is found pure on analysis."
Any such statement can hardly be sufficient to rebut
the presumption that the oil which was consigned by
appellant no. 1 to itself at Calcutta was stored for
sale. The letter itself does not say that the oil will
not be sold. It simply says that they may take the
delivery of the oil only if it is found pure on analysis.
What would be done to the oil if it is found to be impure, is not stated. The Association was not in any
arrangement with the Corporation which had the sole
authority to take action with respect to the adulterated mustard oil. The Enforcement Branch of the
Police had nothing to do with it. In.the circumstances, all the so-called arrangement with the Enforcement Branch of the Police and the consequent letters,
similar to letter Exhibit R, seem to be a subtle device
to make things difficult for the proper authorities
responsible to see that mustard oil fit for sale be pure.
It is obvious in this case itself, how this sort of
arrangement has provided an occasion for the coming
into existence of the alleged fourth sample of mustard
oil from the appellants' tank wagon and the non-committal report about its purity. We are therefore of
opinion that this letter Exhibit R, or the arrangement
· which led to such communication, does not establish
672
SUPREME COURT REPORTS
[1961]
that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants,
Ai /s. Madan
Mohan Damma was not stored for sale.
Mal Ltd.
We are therefore of opinion that the conviction of
& Another
the appellants of the offence under s. 462 of the Act
v.
is correct. The appeal therefore stands dismissed.
The State of West
Bengal &- Another
Raghubar
Dayal ].
z960
November z 5.
Appeal dismissed.
THE STATE OF UTTAR PRADESH &
OTHERS
v:
AJODHYA PRASAD
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. SUBBA RAO, K. N. W ANCHOO and
J. R. MUDHOLKAR, JJ.)
Public Servant-Complaint of taking bribes against Police
Officer-Magisterial enquiry into coinplaints-Departmental trialValidity of-Police Act, 1861 (V of 1861), s. 7-U. P. Police
Regulations, paras. 486, 489.
The respondent was posted as officer incharge of a police
station when complaints were received by the District Magistrate that the respondent was receiving bribes. The District
Magistrate got an enquiry made by the Sub-Divisional Magistrate and forwarded the report toghether with his own endorsement to the Superintendent of Police. The respondent was
forced to go on 2 months leave and was reverted to his substantive post of Head Constable, but later he was promoted to the
rank of officiating Sub-Inspector and posted at another police
station. Meanwhile on further complaints an investigation was
made and it was reported that the respondent was a habitual
bribe taker. He was charged under s. 7 Police Act for g charges
of bribery and after departmental trial was dismissed by the
Superintendent of Police. He filed a Writ Petition before the High
Court challenging the order of dismissal inter alia on the ground
that the offences charged being cognizable offences the Superintendent of Police had no jurisdiction to hold the departmental
trial without first complying with the provisions of para. 486(1)
of the U. P. Police Regulations. The High Court accepted this
contention and quashed the order of dismissal.