R. Bhattacharya, J.
1. The appellants Durgamata Oil Mill, hereinafter referred to as the Firm and Kishori Mohan Roy have been convicted Under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, by the Additional Chief Presidency Magistrate vested with first class powers. The appellant No. 2. Kishori Mohan Roy, has been sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for a further period of one year. The appellant No. 1 the Fim, has not been sentenced for the conviction.
2. To be brief, the prosecution case was that on 24-12-68 at about 2 P.M. the Food Inspector visited the shop, godown and the Mill of Durgamata Oil Mill at 243, Acharya Prafulla Chandra Road, Calcutta. The accused Kishori Mohan was found present there as the seller and person in charge of the said Firm. The Food Inspector disclosed his identity and expressed his intention to take sample from mustard oil and mustard seed stored and exposed for sale there. The Food Inspector took sample of some quantity of mustard oil and mustard seed in presence of the local witness called for the purpose and observed formalities. One part of the sample of the articles was sent to the Public Analyst for analysis and report. The samples of mustard oil and mustard seeds were sold to the Food Inspector and out of the articles sold as sample one part as already stated was sent for analysis. It was found that the mustard seed and the mustard oil were adulterated with argemone seeds and argemone oil respectively. The learned Magistrate issued processes and charges were framed. One of the partners was, however, discharged. The charge was framed only against Kishori Mohan. The defence, as it appears from the trend of cross-examination and the statement of the accused at the time of trial, ig that the sample in respect of the mustard oil was not taken from the stock manufactured by the company. It has been alleged that the sample was taken out of the mustard oil kept in tins upon a lorry which was sent for taking delivery of the mustard oil manufactured by the firm. It has been further alleged that the mustard seeds were stored there for screening to avoid argemone and for which there were two machines in the mill and in fact the seeds were not meant for sale. It also appears that a further case was that the mustard seeds were kept there as rejected stock being found adulterated -and not for use. The learned Magistrate on hearing the witnesses examined on the side of the prosecution and also by the accused came to the finding that the oil seeds were adulterated with argemone seeds and the mustard oil seized from the stock of the Firm was also adulterated due to the presence of the Argemone seed oil. This has been supported by the Analyst. The learned Magistrate found Kishori Mohan Roy, one of the appellants guilty Under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act and sentenced as already indicated. He has also convicted the Firm under the same section but no punishment has been awarded.
3. We have heard Mr. Banerjee, learned counsel on behalf of the appellants, Mr. Bose for the Corporation of Calcutta and Mr. Mukherjee for the State.
4. The first contention raised on the side of the appellant No. 1, the firm, is that the learned Magistrate acted without jurisdiction and illegally to convict the firm in the absence of any charge against it. Admittedly no charge was framed against the firm. The charge was levelled against the appellant No. 2, Kishori Mohan. Section 17 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, speaks about the offences by Companies. Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shatt be liable to- be proceeded against and punished accordingly. There is a proviso; of course we are not concerned with that. The learned Magistrate it appears from his judgment observes that this omission is a technical one and in spite of that he has convicted the firm. Now the company has been defined in Section 17 which says that for this section it means any body-corporate and includes e. firm or other association of individuals. Clearly, therefore, the firm before us being a partnership firm comes under the definition of the company. Section 7 of the Act says that no person shall himself or by any person on his behalf manufacture for sale or store or sell or distribute any adulterated food. There is prohibition of selling storing or distributing adulterated food, Sv 16 of the Act relates to penalties under the provision of the Act. According to Section 16(1)(a)(i), if any person whether by himself or by any other person, on his behalf imports into India or manufactures for sale or stores, sellg or distributes any article of food which is adulterated shall be punishable with imprisonment as- mentioned in- the section itself. Section 17 speaks about, as we have already remarked,, the offence which can be committed by companies. The firm being a company under the definition is liable to punishment if there is commission of any offence under the Act. Now for the purpose of trial charges are to be framed when a person is proceeded against on the allegation of commission of an offence. Without charge there cannot be any trial in a case like the present one and there is no dispute about it. If any person is to be proceeded against, certainly he must know the charges for which he is answerable or for which the prosecution is to prove its own case against him. On this point we have asked Mr. Bose and Mr. Mukherjee to say how a person can be convicted without being charged. When the Firm will be accused of an offence an opportunity must be given to defend itself and for that purpose proper representation of the Firm will be necessary. Unless the Firm knows that it is answerable or it is to be tried there can be no proper arrangement for representation of the Firm and for proper defence. The Company, meaning here the Firm, is a distinct legal entity and therefore separate charge must be framed. When was no charge or notice to the Firm that it would be tried, there can be no question of conviction against the Firm. Of course, Mr. Bose and Mr. Mukherjee could not reply to that specific question. We are afraid, we cannot accept the finding of the learned Magistrate that omission of the charge is a technical defect. Rather the conviction without charge is a conviction without any basis and utterly illegal and unjust. We find that the conviction of the appellant No. 1 was improper and illegal and tt must be set aside.
5. Now let us come to the case of the second appellant Kishori Mohan. Before we proceed, we must say that there has been no challenge or controversy regarding the finding of the learned Magistrate that the mustard seeds and the mustard oil seized by the Food Inspector were adulterated under the provision of the Act. We find from the evidence that there can be no doubt that in fact the seeds and oil were adulterated as will be found from the Analyst's report marked exhibit in this case and from the evidence of P. Ws. 3 and 4. The main argument advanced from the side of the appellant is that the learned Magistrate ought to have held on evidence that the sample with regard to the mustard oil was taken from some tins containing mustard oil not manufactured by the Firm and that the said tins were remaining on a lorry which was sent by a purchaser for taking delivery of some tins of mustard oil manufactured by the Firm. The evidence oi P. W. 1 in this respect should be considered. He is the Food Inspector. His evidence ': that on 24-12-1968 at about 2 P. M. he visited the shop, godown and mill of the firm at 243, Acharya Prafulla Chandra Road. There he found Kishori Mohan who described himself as the seller and person in charge of the said Firm. The Food Inspector has told that he ex- pressed his intention to take samples of mustard oil and mustard seeds which were stored and exposed for sale there meaning at the said premises No. 243, Acharya Prafulla Chandra Road. About the storage and the keeping of the articles for sale at the said premises there has been no cross-examination from the side of the accused. This statement was not challenged. The witness has stated that in presence of the witnesses he purchased 375 grams of mustard oil at a cost of Re. 1/- which was paid and also 750 grams of mustard seeds at a cost of Rs. 1.20 P. which was paid again for the purpose of samples. For this a cash memo was given by the accused Kishori Mohan and that has been marked exhibit. There is no challenge about the cash memo as well. It was signed by Kishori Mohan himself duly endorsed by a witness. About this sale of the articles by Kishori Mohan again there has been no challenge. The memos showing seizure of the samples have been marked exhibits. There also we find endorsement of Kishori Mohan showing receipt of the copies thereof. In cross-examination the Food Inspector has asserted that the tin from which sample was taken was within the premises of the Mill and not on the truck. He has stated that 60 tins which were taken to the lorry containing mustard oil manufactured by the Company were again unloaded and thereafter it was seized and his definite evidence is that the mustard oil was stored in the premises from which sample was taken.
6. P. W. 2 is a witness who was present at the time of taking sample. In examination-in-chief he has stated that in connexion with some work he went to the mill of the Firm and there the Food Inspector took samples of mustard oil and mustard seeds. It is clear that the samples were taken within the premises No. 243, Acharya Prafulla Chandra Road. He has stated that the mustard oil and the mustard seeds were purchased by the Inspector. Regarding this sale there has been no cross-examination. During cross-examination P. W. 2 hs stated that the Food Inspector took sample of mustard oil from one of the tins that were on the lorry and unloaded later. We also find from the evidence of P. W. 1 that the tins containing mustard oil manufactured by the Firm were first taken on the lorry and then unloaded from the lorry and taken to the premises and there the samples were taken. Thi9 is supported by P. W. 2. We have minutely considered the evidence of P. W. 2 and giving our best consideration we do not find that we can draw any inference from any part of the evidence that the samples were taken from any tin containing mustard of not manufactured by the Firm or belonging to some other person. In this connexion we should also note the evidence of D. W. 2, Abani Kumar Kundu. an employee of the firm. He was examined by the accused in defence. He says that there are two screening machines in the mill. We get from his evidence that he is working there for 7 years. His unambiguous and clear statement is that the mustard oil of which sample was taken and which was seized on 24-12-1968 was manufactured in the Firm's mill for sale. This evidence of the defence witness supports the prosecution case. In this connexion we should note the story given by Kishori Mohan during his statement Under Section 342, old Criminal Procedure Code. He says that he sold 50 tins of mustard oil to one Netai Dey of Tara-keswar and those tins were being loaded on the truck. That party had 14 tins of mustard oil loaded in the same lorry and the? sample was taken by the Food Inspector from those tins. However, on the clear evidence on record we must hold that the sample of mustard oil was taken from the tin containing mustard oil manufactured by the Company within the premises of the mill of the Firm and when there is the evidence that it was adulterated, the appellant Kishori Mohan was rightly convicted Under Section 16(1)(a)(i) read with Section 7(i) of the Act in respect of the mustard oil.
7. Coming to the legality of conviction in respect of the mustard seeds seized from the premises of the Firm which were stored and exposed for sale as will appear from the charge, the contention of Mr. Banerjee is that the said seeds were purchased and to avoid any chance of adulteration the Firm purchased two screening machines and the seeds were awaiting screening and that it was not meant for sale. With regard to the question of screening the evidence of D. W, 2 is that the mustard seeds of which sample was taken and which were seized were kept as rejected and not for manufacturing oil. The defence witness D. W. 2 does not say anywhere that the said seeds were stored there or kept there for the purpose of screening before manufacturing oil, D. W. 3 on the other hand has stated that he is a broker of mustard 1978 Cri. L. J./15 II seeds. He supplied mustard seeds to the Firm on 16-12-1968 end the said seeds were of general quality and not adulterated. The story of rejection on the ground that the seeds did not tally with the sample cannot be accepted. The evidence of D. W. 3 has not been challenged on the side of the accused. The Analyst's report has neither been challenged and before us also arge-mone seeds appearing with the mustard seeds have not been challenged as well. The evidence is quite clear and convincing that the mustard seeds were mixed up with argemone seeds which were not permitted to be mixed with foods and as such it was adulterated according to the Act. The next question is whether the seeds were meant for sale as mentioned in the charge. As we have already stated at the very outset, the evidence of P. W. 1 that the oil and seeds seized were stored and exposed for sale at the premises has not been challenged. Moreover, the cash memo and the evidence say clearly that those articles were sold by Kishori Mohan granting cash memo. There has been no objection when sample was taken and no objection was raised when the Food Inspector wanted to purchase the same. If the article was not meant for sale certainly the seller Kishori Mohan had every right not to sell it and he would have objected to the sale, but in this case, on the other hand, seeds were sold after granting cash memo in this respect. We must hold, therefore, that the mustard seeds were stored and exposed for sale at the premises of the Firm from where they were seized. We do not find any ground to justify the argument advanced by Mr. Banerjee in this respect. Kishori Mohan has been rightly convicted for storing and exposing the mustard seeds for sale as well. Both the charges framed against Kishori Mohan have been proved and he has been rightly convicted
8. Lastly, Mr. Banerjee has asked us to consider the question of sentence particularly in view of the fact that the accused is aged about 70 years. We find from the record that when the accused was examined Under Section 342 Cr. P.. Code (old) he gave his age as 62 years. It was in the year 1969. Moreover, the learned Magistrate also found in his judgment that the accused is old. However, about 8 years have already passed and he is now aged about 70 years. He has been sentenced to suffer rigorous imprisonment for three years besides a fine amounting of Rs. 2000/. We find that for a few days the accused had undergone rigorous imprisonment after the conviction. Considering his age and the lapse of so long a period, we reduce the sentence of rigorous imprisonment to the period already served, but the amount of fine shall remain intact, in default, to suffer rigorous imprisonment for one year as ordered by the learned Magistrate.
9. We thus dismiss the appeal on merit but reduce the sentence as already indicated. The accused is discharged from the bail bond. The order of destruction of the articles seized as directed by the Magistrate shall stand.
Monoj Kumar Mukherjee, J.
10. I agree.