Debabrata Mookerjee, J.
1. This petition is directed against an order of the Municipal Magistrate, Calcutta, dated 24-6-1955, by which the petitioners Sailendra Kumar Roy and Rabindra Kumar Roy were convicted of an offence under Section 437(1)(a)/537, Calcutta, Municipal Act 1951. Each of these petitioners has been sentenced to pay a fine of Rs. 25/-.
2. The case made by the Municipality is that on premises No. 70/2/c Gouri Bari Lane, Calcutta, a mustard oil mill has been set up where oil is being manufactured by crushing mustard seeds with the aid of electrical power. The petitioners who are the owners of the mill manufactured oil without a license for the year 1952-53 and as such they contravened the provisions of Section 437(1) (a), Calcutta Municipal Act.
The petitioners' defence was that they have been carrying on the business, which requires a health license, on the premises for a pretty long time and that they were granted by the Corporation such license in the past; but for the year in question they sent a cheque for Rs. 75/- towards the license fee but that was arbitrarily refused by the Corporation. In these circumstances the petitioners contended that they were not liable to be convicted of any offence under the Act.
3. The learned Magistrate who dealt with the case came to the conclusion that the petitioners were guilty of an offence under Section 437(1)(a) of the Act and in that view convicted and sentenced them as stated above.
4. Section 437(1) (a) provides that no person shall use or permit to be used any premises for any of the purposes mentioned in the section without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf. One such purpose is mentioned in Clause (a) which contains a reference to one or other of those specified in Section 18 of the Act. Schedule 18 details various purposes for which premises may not be used without a license or contrary to license.
Item No. 8 of that schedule provides that storing, packing, pressing, cleansing, preparing or manufacturing, by any process whatever, any of the named articles in excess of the quantity prescribed for each such article by the Corporation in this behalf is forbidden under the schedule. Oil, edible or non-edible, is one of a variety of articles included in Item No. 8 to which I have just referred. It is thus clear that what Section 437(1) (a) provides is that no one can use or permit to be used any premises without or otherwise than in conformity with the terms of the license issued by the Municipality for any of the purposes specified in Schedule 18.
In the present case when the section is applied to the facts, the position according to the Magistrate seems to be that what the Municipality wanted the petitioner to prosecute for, was that they had otherwise than in conformity with the terms of the license granted under Section 437 stored mustard oil in excess of the quantity permitted by the license. This seems to be the real significance of the charge of offence of which the petitioners have been convicted by the Magistrate. But storing the excess of the prescribed quantity presupposes the existence of a license and implies that the storage is contrary to its terms.
5. Turning to the evidence for a moment it seems clear that the conviction goes one way and the evidence goes another way. The evidence adduced in this case shows that for the year in question these petitioners did not possess a health license; but the learned Magistrate's findings indicate that what he thought the petitioners stood charged for, was that they had stored a quantity in excess of that permitted by the license that had been issued to them. I think there has been a complete confusion in the case in the Court below which is responsible for this unfortunate state of things.
If the evidence of the witness for the Corporation has to be accepted, the position is that for the year 1952-53 the petitioners did not have a license which they were required under Section 436 of the Act to take out and possess. That evidence, properly looked at, implies that the petitioners were really establishing or extending the factory which stood on the site by setting up a mustard oil mill which was electrically driven. For establishment or extension of a factory, surely the petitioners needed to have a license under the terms of Section 436 of the Act.
The learned Magistrate, however, appears to have thought that the charge that was brought against the petitioners was not that they were establishing or extending the factory by setting up a oil mill electrically driven but by storing oil beyond a certain quantity permitted by a license. That is the implication of Section 437(1)(a) of the Act. But the case is that there is no license at all and the case is not that the petitioners had exceeded the limit allowed by the license which in fact had not been issued.
6. There cannot be the slightest doubt that the case was not properly tried. The evidence which the Municipality produced has not been appreciated and I think the ends of Justice required that the matter should be retried in accordance with law.
7. The result, therefore, Is that the convictionand the sentence are set aside and the petitionersare directed to be retried in accordance with lawfor the alleged offence under Section 436, Calcutta Municipal Act, 1951 by a Magistrate other than the trying Magistrate.