1. The first point urged by the learned advocate for the petitioner in this case is that the petitioner was wrongly tried in Calcutta in respect of the offences with which he was charged. There can be no doubt in my mind that, as regards the cheating charges and the charge under Section 7, Merchandise Marks Act, the trial was properly held in Calcutta. As regards the charge under Section 6 of the latter Act, the offence of applying the false trade description, from the nature and circumstances of the case, must have been committed at Serampore and therefore the trial in respect of this charge should have been held at Serampore. On this point the learned advocate for the Crown contends that the defect is curable under Section 531, Criminal P.C. If this had been the only defect in procedure, I would have been prepared to accept this contention but I also find that there was a misjoinder of charges. In this connexion the three cheating charges might have been properly joined with a charge under Section 7, Merchandise Marks Act; but it cannot be said that the offence with which the petitioner was charged under Section 6 of the Act was committed in the course of the same transaction as the other offences with which he was charged. It follows therefore that he should have been tried separately in respect of the charge under Section 6, Merchandise Marks Act. As regards this charge however, the learned advocate for the Crown admits that there is no evidence on the record to show that the petitioner himself applied a false trade description to his goods, so that in any case he cannot be convicted under Section 6, Merchandise Marks Act.
2. In my view the conviction under Section 7 of the Act must also be set aside as I consider that the petitioner was prejudiced in his trial on account of the misjoinder of charges to which I have already referred. The result is that this rule must be made absolute. The order of the learned Magistrate dated 31st October 1939 is set aside and the petitioner will be retried according to law in respect of the charge under Section 7, Merchandise Marks Act. The new trial will be held in the Court of some Magistrate other than Mr. D.J. Cohen and will proceed on the evidence which is already on the record together with such further evidences as the parties may think it necessary to adduce. The fine imposed upon the petitioner under Section 6, Merchandise Marks Act, if already paid, will be refunded.