1. This is a reference by the learned Sessions Judge of Howrah recommending that the convictions of the two accused persons, Murali Mohan Das and Biswanath Prosad, under Sections 406 and 407/488, Calcutta Municipal Act (1923) should be set aside and that the accused should be acquitted. In our opinion, the reference has been made under a misapprehension. The finding is that the Sanitary Inspector of Howrah purchased from the accused Biswanath Prosad in the Hindu Refreshment Room at Howrah Station some butter which on analysis was found to contain 23.77, per cent. of water, and therefore it offended against the condition prescribed in the Notification dated 28th March 1928, made in exercise of of the power conferred by Section 407, Calcutta Municipal Act, under which the Provincial Government may prescribe conditions in respect of butter sold, exposed or hawked about for sale. The condition laid down in the Notification is 'Butter shall not contain more than 20 per cent, of water.'
2. Mr. Talukdar, who appears on behalf of the accused, has contended that this Notification is ultra vires of the powers of the Provincial Government. So far as we have been able to follow his argument, it is that the power is ultra vires of the Provincial Government, because in some way or other the power given under Section 407 to that Government does not extend to limiting water in butter to the extent of 20 per cent. He has not been able to enlighten us up to what per centage Government might limit the quantity of water which could be contained in butter nor indeed is it possible for him to do so. It is quite clear in our opinion that Section 407 has been drafted to give a general frame work as regards more important articles of food exposed for sale and to lay down, as regards these articles, some specific conditions which must be fulfilled in regard to their sale and so forth. While laying down definite conditions in regard to some of the articles, there are provisions leaving it to the Provincial Government to, prescribe other further matters. Moreover, the Provincial Government is also given a completely free hand to add to the list of articles of food which shall come under the provisions of this section (vide Sub-section 1(h)), and in regard to such articles the matter is left entirely open to the Government under Sub-clause (viii) to prescribe all the conditions relating to the sale thereof. It is clear, therefore, that there is no limit on the power given to the Local Government to prescribe conditions in respect of butter although Sub-clause (ii) does itself lay down certain conditions. The fact that the Provincial Government might abuse the wide powers to prescribe conditions given under this sub-clause is no reason to interpret the clause as in any way limiting the powers. The Legislature no doubt considered that on a subject of this nature it might reasonably leave it to the discretion of the Government to prescribe the conditions and therefore it was not necessary for the Legislature itself to hedge in the power in any way.
3. In the present case, it would be absurd to suggest, in our opinion, that the condition that butter shall not contain more than 20 per cent, of water, is in any way an unreasonable abuse of the power given by the section. The Notification, therefore, is not ultra vires of the Provincial Government, and as the butter sold by the accused in this case does not comply with the condition laid down, the accused who sold the butter, namely, Biswanath Prosad, and the admitted proprietor of the refreshment room, Muralimohan Das, are both guilty under Section 407/488, Calcutta Municipal Act. The section is of a very drastic character and precludes a defence of mere ignorance on behalf of the seller (vide Sub-section (3) of Section 407). It appears that the accused Biswanath Prosad was merely temporarily minding the shop while the actual manager was away. It, however, does not relieve him of his technical liability. As regards the sentence passed on the owner, we see no reason to interfere. We reduce the sentence of fine passed upon Biswanath Prosad to a nominal amount of Rs. 5 in default simple imprisonment for 7 days. The reference is disposed of accordingly.