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Nishikanta Ghosh and anr. Vs. the Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Admitted Appeal No. 125 of 1952
Judge
Reported inAIR1953Cal401
ActsCalcutta Municipal Act, 1951 - Sections 5(1) and 461; ;Evidence Act, 1872 - Sections 101 to 103 and 105; ;Bengal General Clauses Act, 1899 - Section 8; ;General Clauses Act, 1897 - Section 6; ;Calcutta Municipal Act, 1923 - Section 406
AppellantNishikanta Ghosh and anr.
RespondentThe Corporation of Calcutta
Appellant AdvocateAjit Kumar Dutta, Adv.;Bireswar Chatterjee, Adv.
Respondent AdvocateSantosh Kumar Basu and ;Sunil Kumar Bose, Advs.
DispositionAppeal dismissed
Cases ReferredJatindra Nath v. Jetu Mahato
Excerpt:
- p.n. mookerjee, j. 1. the appellants before me have been convicted by the local third municipal magistrate under sections 461/537 of the new calcutta municipal act (1951) corresponding to sections 406/488 of the old act of 1923. appellant 1, nishi kanta ghosh, is the managing director of dwarik's sweets (india) ltd., a well-known confectionary firm of this city and the other appellant, paritosh banerjee, is the salesman at the harrison road shop of that firm. on 10-4-1951, at the instance of food inspector sailesh sen a complaint was lodged against the accused under sections 406/412/488 of the old calcutta municipal act, 1923, then in force, for an alleged offence of 'storing for sale on 20-2-1951, poori fried in ghee, the ghee extracted from which on analysis was found to be adulterated.....
Judgment:

P.N. Mookerjee, J.

1. The appellants before me have been convicted by the local third Municipal Magistrate under Sections 461/537 of the new Calcutta Municipal Act (1951) corresponding to Sections 406/488 of the old Act of 1923. Appellant 1, Nishi Kanta Ghosh, is the Managing Director of Dwarik's Sweets (India) Ltd., a well-known confectionary firm of this city and the other appellant, Paritosh Banerjee, is the salesman at the Harrison Road shop of that firm. On 10-4-1951, at the instance of food inspector Sailesh Sen a complaint was lodged against the accused under Sections 406/412/488 of the old Calcutta Municipal Act, 1923, then in force, for an alleged offence of

'storing for sale on 20-2-1951, Poori fried in ghee, the ghee extracted from which on analysis was found to be adulterated with foreign fat not exclusively derived from milk',

and after some procedural delay summonses were issued and served upon them, and on 16-11-1951, they entered appearance, -- accused 1 Nishi Kanta through an agent, and accused 2 Paritosh personally, -- and at the examination under Section 242, Criminal P.C. they both pleaded 'not guilty'. On 4-1-1952, accused Nishi Kanta appeared personally, and on this date both the accused repeated their plea of 'not guilty' and then the trial proceeded in the presence of accused Paritosh and of the agent of the other accused Nishikanta who, upon his own application, was granted personal exemption from appearance and was allowed to be represented by an agent.

2. On 16-2-1952, the prosecution witnesses were examined and cross-examined, and then there was the usual examination under Section 342, Criminal P.C., and the plea of 'not guilty' was reiterated by the defence. The case was then adjourned to 14th March for defence and argument, and on the said date the accused filed a joint written statement. No defence witnesses were tendered or examined, but, after several adjournments, granted on the prayer of the defence lawyer, arguments were heard on 24th and 30th May 1952, and on this latter date judgment was delivered by the learned Magistrate convicting the accused under Sections 461/537 of the new Calcutta Municipal Act, 1951, which had come into force in the meantime on 14-2-1952, and sentencing them, -- the managing director accused 1 and the seller accused 2, to pay fines of Rs. 500/- and Rs. 25/- respectively. The present appeal is directed against these convictions and sentences.

3. It will be convenient to state now certain broad facts which appear on the record and which are not disputed before me and/or not challenpeable on the evidence given in the case. There is no dispute that the accused 1 Nishikanta was the managing director of Dwarik's Sweets (India) Ltd., and that accused 2 Paritosh was the seller of the firm's shop at No. 89 Harrison Road, Calcutta, on the date of the alleged offence. It has also been abundantly proved by the prosecution -- and this is not challenged by Mr. Dutt who appears for the appellants -- that on 20-2-1951, the complainant food inspector Sailesh Sen purchased a quantity of 'Poori', -- the sample Poori in thecase -- worth Rs. 1/14 as. from the seller accused Paritosh at the said Harrison Road shop which Poori was divided into three equal parts as samples, and 'one such sample was sent to the Corporation Laboratory for analysis', 'the second sample was left with the accused' (Paritosh), and the third one was 'retained with the Corporation of Calcutta for future reference'. The evidence (Vide P.W. 1) further shows that the complainant food inspector was given (sold) the sample Poori on asking for 'Poori fried in ghee', his actualwords being ^^?kh , Hkktk iwjh** and the further evidence is that before asking for 'Poori' he asked the seller accused Paritosh, 'Are all your foodstuffs prepared with ghee?'

^^vkikuk nsj 'kc [kcj ?kh , rks;kjkarks**

4. As already stated, no witnesses were examined by the defence, but the accused filed a joint written statement on the date fixed for defence and arguments, and the learned Magistrate found the accused guilty of storing for sale 'adulterated food' under the municipal law of the city, and convicted and sentenced them thereunder. It is just necessary to state here that the learned Magistrate in passing sentences took into consideration the fact that appellant 1 was the managing director of the confectionary firm involved in this case and appellant 2 was only its salesman at the shop where the offence, as found by him, was committed, and he also refrained from passing upon the director accused the severer sentence, prescribed under the new Calcutta Municipal Act, 1951, as, in his opinion, the offence having been committed and the prosecution launched when the old Act was in force the lesser maximum under that Act ought to be the outer limit of punishment.

5. In support of the appeal three main points have been urged before me. It was first contended that there was no proper or sufficient analysis or examination of the 'ghee content' of the sample Poori to justify the report (Exhibit 2) that it was 'adulterated with foreign fat' or to warrant any conclusion to that effect. It was argued, therefore, that the appellants' conviction was unsustainable and should be quashed. It was next contended that even assuming that the 'ghee content' of the sample Poori was 'adulterated with foreign fat' that would not make the Poori 'adulterated food' within the meaning of the Municipal Law and would be wholly insufficient to support the appellants' conviction as they were not selling or storing for sale 'ghee' but 'Poori', and although the 'ghee' might be adulterated, 'Poori' fried in it would not necessarily be an 'adulterated food' under the Municipal Law so asto give rise to an offence thereunder. The third contention was sought to be founded on the legislative change which intervened during the pendency of the appellants' prosecution, viz., the introduction of the new Municipal Act of 1951 on 14-2-1952, which repealed the old Act of 1923 under which the prosecution had begun. It was contended under this head that with the death' of the old Act the present prosecution had or must be deemed to have lapsed, the machinery and procedure, set up and prescribed for initiation and conduct of such prosecutions, apart from anything else, being under the new Act essentially, if not entirely, different, and, in any event, so argued Mr. Dutt, there ought to be a retrial, as, in this case, on a prosecution started and proceeded' with for offences under Sections 406/488 of the old Act, the appellants have been convicted and sentenced for offences under Sections 461/537 of the new Act. These arguments require careful consideration as the manifold importance of the points raised can hardly be exaggerated, and I proceed now to consider them seriatim in the order in which they have been set out above.

6. Upon the first point, the, record stands thus: The analyst's report (Ex. 2) describes the alleged adulteration of the sample Poori in the following terms, viz., 'a sample of puri prepared in ghee which is adulterated with foreign fat.' (After discussing the evidence the judgment proceeded:) In the above view of the matter, I am not inclined to reject the report (Ex. 2) and accept the appellants' first contention which I, accordingly, overrule and I agree with the learned Magistrate in holding. that the 'ghee content' of the sample Poori was 'adulterated' (Vide, in particular, Sub-clause (v) of Clause (c) of the relevant definition Section (Section 2(3) of the old Act -- Section 5(1) of the new)).

7-10. Let me turn now to the second submission of Mr. Dutt. This submission has to be examined in the light of the relevant provisions of the Municipal Law of this city. In the Calcutta Municipal Act of 1923 the term 'adulterated' was defined in Section 3(2), where Clause (c) dealt specifically with the case of 'food' and food was defined in Section 3(31), and the same definitions have been retained in the new Act of 1951 (Vide Sections 5(1)(c) & 5(33)). Under this, statutory definition,

' 'food' includes every article used for food or drink by man, other than drugs or water, and any article which ordinarily enters into or is used in the composition or preparation of human food; and also includes confectionary, flavouring and colouring matters and spices and condiments.'

There is no question, therefore, that Poori is 'food' under the Municipal Act.

11. It is to be seen next whether the sample Poori in the present case was 'adulterated' within the meaning of the statutory definition. That definition, as above stated, is contained in Section 3(2) of the old Act which clearly corresponds -- almost word for word -- with Section 5(1) of the new.

12. Upon the arguments advanced before me and in the facts of this case, four sub-clauses of the said definition section -- namely, Sub-clauses (i), (ii), (vi) and (viii) of Clause (c) require consideration. The appellants, of course, argue that none of the clauses or sub-clauses of the said definition section here applies to make the sample Poori 'adulterated food', even assuming that its 'ghee content' was adulterated, but the Corporation maintains that on that assumption -- and that, indeed, is my finding on the first point, -- namely, that the 'ghee content' of the sample Poori was adulterated' this case would attract Sub-clauses (i), (ii), (vi) and (viii) of Section 3(2)(c) of the old Act of 1923, corresponding to the same or similar sub-clauses of Section 5(1)(c) of the new Act of 1951, which run as follows:

'(c) in the case of food-

(i) if any substance has been mixed and packed with it so as to reduce or lower or injuriously ('harmfully' in the 1951 Act) affect its quality or strength, or

(ii) if any substance has been substituted wholly or in part for the article, or

(vi) if it contains or is mixed or diluted with any substance in any quantity to the prejudice of the purchaser or consumer or in any proportion which diminishes in any manner its food value or nutritive properties as compared with the same in a pure or normal state and in an undeteriorated and sound condition, or

(viii) if it is not of the nature, substance or quality which it purports or is represented to be:'

There is force in this latter contention, so far as it is sought to be founded on the two Sub-clauses (vi) & (viii), and, in my opinion, it ought to prevail to that extent.

13. The Corporation analyst (P.W. 2) who is also a medical man -- an M.E. of the Calcutta University -- deposed 'inter alia' as follows:

'My opinion is that the sample of 'Poori' was fried in ghee which ghee is adulterated with foreign fat. By foreign fat I mean fat which is not butter fat. Ghee must consist of butter fat. Normally butter fat should melt between 28C and 36C......I analysed the fatwhich I got by extracting the sample of Poori ......If the sample was made of pure ghee itshould have melted between 28C and 36C, In this case the sample did not melt up to 40C......As a doctor I can say that if thesample of ghee in question does not melt up to 40C it will not be fully absorbed in the body.'

This evidence read in its proper light and context is, in my view, sufficient to justify the conclusion that the food in question, namely, the so-called 'Puri fried in ghee' ^^?kh , Hkktk iwjh** contained 'some substance in a certain quantity to the prejudice of the purchaser or consumer or in a

'proportion which diminishes its food value or nutritive properties as compared with the same in a pure or normal state and in an undeteriorated and sound condition.'

In any event, on the evidence, led in this case, it is abundantly clear that Poori fried in 'adulterated ghee' or, to be more precise, in ghee 'adulterated with foreign fat', that is. adulterated with 'fat which is not butter fat' was sold as 'Poori fried in ghee' ^^?kh , Hkktk iwjh** which latter, namely, ghee 'must consist of butter fat'. The sample Poori, therefore, may safely be held to be 'adulterated food' within the statutory meaning as it comes well within the terms of Sub-clause (vi) of Clause (c) of the de-finition section or, as, in any event, it certainly satisfies the tests or requirements of Sub-clause (viii).

Mr. Dutt's answer that there is no prescribed standard for 'Poori' or 'Poori fried in ghee' ^^?kh , Hkktk iwjh** and that in the absence ofsuch a standard, the sub-clauses, referred to above, cannot apply does not appear to be sound as, in any opinion, that argument is relevant only when the case is sought to be brought directly under Sub-clause (v) and it does not really touch the other sub-clauses, although, as in this case, that Sub-clause (v) may be a necessary step to lead to these other sub-clauses, and it seems to me that there being a standard prescribed for 'ghee' under the Municipal Law (Vide Section 407(1)(iii) of the old Act -- and Section 462(1)(v) of the new -- and the relevant statutory notification under that section) and the 'ghee content' of the sample Poori not conforming, upon the evidence on record, to that standard and being thus 'adulterated' (Vide Sub-clause (v)) there would be no bar to the applicability of the other sub-clauses of Section 3(2)(c) of the old Act or Section 5(1)(c) of the new, merely because no standard has been prescribed for 'Poori' or ''Poori fried in ghee' ^^?kh , Hkktk iwjh** as such. It thus follows that, although the sample Poori may not be 'adulterated' within the meaning of Sub-clause (i) or Sub-clause (ii) of Clause (c) of the definition section -- and I ought to make it clear that I am not impressed by Mr. Basu's argument to the contrary, -- it would, in my opinion, come within the mischief of the language of Sub-clause (vi) or, at any rate, of Sub-clause (viii) and if this conclusion be not opposed to authorities, that would be enough for the prosecuting Corporation on this part of the case. In this view of the matter it becomes wholly unnecessary to consider in any detail Sub-clause (iii) on which the learned Magistrate relied but which has not been attempted to be pressed into service before this Court for apparently good reasons as the said Sub-clause (iii) does not appear to be at all relevant to this case.

14. On the merits, therefore, I am not inclined to accept Mr. Dutt's second submission, or the appellants' second point, as noted above, but before I record my final conclusion upon the same I have to consider the cases, cited at the bar on behalf of the respective parties.

15. On behalf of the appellants, Mr. Dutt drew my attention to the cases reported in --'In re K.S. Ambi Iyer' AIR 1939 Mad 375 (A)and -- 'Crown Prosecutor, Madras v. V. R. Ramanatha Aiyar' AIR 1946 Mad 44 (B) and to the three cases of this Court reported in --'Abala Kanta Ghose v. Corporation of Calcutta' : AIR1940Cal577 ; -- 'Firm Ballavdas Iswardas v. Sanitary Inspector, Howrah Municipality', 45 Cal W N 661 (D) and -- 'Joykali Ganguly v. Sanitary Inspector, Howrah Municipality' : AIR1943Cal88 . The learned Advocates, appearing for the Corporation and the State, referred me on the other hand to the cases reported in -- 'Grande Venkata Ratnam v. Corporation of Calcutta' AIR 1919 Cal 862 (F); -- 'Public Prosecutor Madras v. Parameswara Aiyar' AIR 1947 Mad 428 (G); -- Deo Mitra v. Rex' AIR 1949 All 35 (H); -- 'Nebhandas Hollaram v. Emperor' AIR 1939 Sind 337 (I) and also to the English case of -- 'Riley Bros. (Halifox) Limited v. Hallimond', (1928) 44 T L R 238 (J),

16. I have examined the rulings cited, and it seems to me that of them the two reported in 'AIR 1919 Cal 862 (F)' and 'AIR 1947 Mad 428 (G)' and cited by the respondent's Counsel can be dismissed forthwith as not -- oven remotely -- touching the point now before me. The case in 'AIR 1919 Cal 862 (F)' just contains a timely warning against indiscriminate and irresponsible use of passages from scientific treatises or text books and the growing tendency to place undue reliance upon the same or to give preference to them -- in wholly unsuitable or unjustified circumstances -- over expert evidence, actually adduced in the case, and the Madras decision 'AIR 1947 Mad 428 (G)' really turns on a particular Government notification which nullified the effect of the earlier pronouncement of that Court, reported in 'AIR 1946 Mad 44 (B)'. This latter case also although it may apparently at first sight lend some support to the appellants' second contention really turned on the meaning of the word 'ingredient' in Rule 28B, Madras Prevention of Adulteration Act (3 of 1818), and thus, upon a close analysis, it appears to have little bearing or relevancy on the present prosecution.

17. The other cases, cited on the appellants' behalf, are also distinguishable in that in the -- ''Kajoor' case', AIR 1939 Mad 375 (A) the prosecution was under Section 5(1)(d), Madras Prevention of Adulteration Act, which clearly depended upon the standard prescribed by the local Government and in the absence of such proscribed standard the prosecution under that section was held to be not sustainable; in the earlier of the Calcutta cases cited, namely, ' : AIR1940Cal577 ', the prosecution was for selling adulterated ghee, that is, under Section 407 of the old Calcutta Municipal Act as distinct from Section 406 and what was alleged and proved to have been sold was Singara said to have been fried in adulterated ghee and, in these circumstances, this Court quashed the convictions and the sentences, made and awarded by the learned Municipal Magistrate, with the very relevant observation that 'if the petitioners were selling Singara they were not selling Ghee': in the later Calcutta case '45 Cal W N 661 (D)' also this Court held that upon a complaint 'for selling adulterated mustard oil itself' a conviction for stocking or selling food cooked in adulterated mustard oil was bad (see page 682) and further that

'in the absence of any evidence and of a finding to the effect that the food value of 'alur dam' was deteriorated to the prejudice of the purchaser or consumer'

no conviction could properly be made under Section 406 of the (old) Act read with Section 3(2)(c) (see page 663), their Lordships observing in the-course of their judgment that

'in order to convict under Section 406, Calcutta Municipal Act, it must be proved that the food was adulterated; in the present case, that on account if the action of the accused the quality or strength or value of the food was reduced or lowered or injuriously affected to the prejudice of the consumer, --Section 3(2)(c) of the Act; as to this there is neither any evidence nor any finding by the Seamed Magistrate' (Vide p. 662 of the Report);

and in the other Calcutta case cited, namely, 'AIR 1943 Cal 88 (E)', although the prosecution appears to have been under Section 406 of the oldCalcutta Municipal Act for selling or storing for sale 'luchis' fried in adulterated ghee, the 'luchis' were not seized or analysed, but a sample of the ghee in which, it was so alleged, the 'luchis' were being fried was taken by the sanitary inspector and analysed by the public analyst which ghee was on such analysis found to be adulterated, and Henderson J. acquitted the accused for lack of requisite evidence to support the prosecution, the relevant passage occurring in the judgment as below:

'Now it is not the prosecution case that the ghee formed one of the constituents of the luchis. Their case is that the luchis were fried in it. The luchis were not seized or analysed. In the absence of such evidence, there is nothing to show that any of this ghee was in the luchis. Then, in the second place, it has to be shown that luchis fried in this ghee would be of an inferior quality to those fried in ghee which the public analyst would describe as unadulterated. There is no such evidence. The Rule is accordingly made absolute, the conviction and sentence are set aside, and the fines, if paid, will be refunded.'

(Vide the last paragraph of the judgment at page 88 of the report). Clearly, therefore, none of the cases, cited by Mr. Dutt, is of any real assistance to his clients.

18. The Sind decision 'AIR 19139 Sind 337 (I)', cited on behalf of the respondents, has a striking similarity to the present case, and although I am not prepared to agree with the learned Judges of that Court and go to the length of holding that the fact that the ghee alleged to be adulterated

'was taken from a shop where sweetmeats and pakoras were offered for sale and indeed from a frying pan in which other sweatmeats and pakoras were being made, it is quite clear that the sweetmeats and pakoras in his (accussd's) shop had been manufactured for sale within the meaning of Section 4(1)(b) and that he was manufacturing and offering for sale sweetmeats and pakoras as containing pure ghee which contained impure ghee' (Vide p. 338 of the report)

and this is not material in the present case --I do feel that that case was rightly decided and the correct view was there taken of the true scope of the relevant statutory provision, namely, Section 4, Bombay Prevention of Adulteration Act (5 of 1925).

19. The Allahabad case of 'AIR 1949 All 35 (H)'. also propounds a view counter to' the' appellants' second contention, and the reason and principles underlying the English decision cited, namely, '(1928) 44 TLR 238 (J)', largely support the present prosecution, the statute there examined being, in its material part, essentially similar to the provisions of our municipal law now under consideration. In this state of the authorities, and there being no merit, as already indicated, in the appellants' second contention it can only be rejected. If accordingly, overrule Mr. Dutt's second point too,

20. I ought to refer here to one connected argument of Mr. Dutt founded on the provisos, particularly, the first proviso to Section 406 of the old Act and the similar or corresponding proviso or provisos to Section 461 of the new Act. In this argument which, however, was not persisted in till the last, the appellants claimed protection or immunity from the present prose-cution upon the plea that the prosecuting Corporation not having placed any materials before the Court to exclude the possibility of the application of the said provisos to this case, no offence under either of the said sections could be held to have been committed by them. In ultimate analysis this plea raises the question of onus, and in substance the contention is that to succeed under Section 406 of the old Act or Section 161 of the new the prosecution must establish not only that the case comes within the mischief of the main part of the said section or sections, but also that the provisos thereto are inapplicable.

For this argument reliance was sought to be placed on a broad proposition that in all criminal trials the onus is on the prosecution not only to establish the guilt of the accused, but also to show affirmatively a negative state of things, namely, that conditions do not exist which would entitle him (the accused) to any protection under the law. To this broad argument, I am unable to accede. I am not inclined to hold that where in a statute provisos are engrafted on main parts of penal sections to the effect that under certain conditions the offence or offences, mentioned in the said penal portions, would not be deemed to have been committed, the onus is on the prosecution to show the absence or non-existence of those conditions and such onus must be discharged before a person can be convicted of the said offence or offences. In my view, the onus with regard to such provisos is on the accused and it is for him to establish affirmatively the conditions thereunder in order that the said provisos may be attracted to the case, and their benefits made available to him. The provisos indeed offer a special defence to the accused and the onus is on him to establish the same if the prosecution is to be thrown out under the said provisos. A similar view was taken by the Allahabad High Court in the case of -- 'Rameshwar Das v. Emperor' : AIR1936All86 , and I have no reason to doubt its correctness. I am further of the opinion that the materials on the present records are inconsistent with the existence of any of the conditions contemplated in the provisos to the penal section or sections relevant in this case. I, accordingly, hold that the appellants are not entitled to the protection of the statutory provisos upon which reliance was sought to be placed by Mr. Dutt in the course of this argument.

21. The statutory provisions, with which we are here concerned and which I have sufficiently set out above, are intended to root out 'adulterated food' from this city. With that object in view the term 'adulterated' has been defined in the Act and the manufacture, sale and storage for sale, etc., of such 'adulterated food' have been made offences thereunder. The whole object of this branch of the law -- at any rate, its chief purpose, -- is to protect the consumer and preserve the city's health and that object and purpose would be clearly frustrated unless the statutory checks are rigidly enforced. The accused can certainly call to his aid the general presumption of innocence, namely, that he is to be presumed innocent until his guilt is established and demand of the prosecution that the alleged offence must be proved to the hilt. He is also entitled to claim protection under the special defence or defences, afforded by the relevant statute or statutes. But if the prosecution succeeds in proving theelements of the alleged offence and thus rebutting the general presumption of innocence and the accused fails or is unable to establish any of the special defences, open or available to him, the law must take its course and it must be strictly applied & the conviction must follow, though in awarding sentences the Court may take into consideration the circumstances under which the offence was committed and adjust the statutory punishment -- within the prescribed limits -- to the requirements of the particular case. In answering the appellants' second contention and the connected submission, as noted above, I have carefully borne in mind and permitted myself to be guided by these considerations and, in my opinion, they indicate the proper approach to problems like the present. The appellants' submissions on this part of the case are, accordingly, rejected.

22. I have held above that the sample Poori on which the present prosecution is based is 'adulterated food' under the municipal law of this city and in so holding I have relied particularly upon Sub-clause (viii) of Clause (c) of the statutory definition under which 'food' which 'is not of the nature, substance or quality which it purports or is represented to be' is deemed to be 'adulterated'. The view, so taken, is not, in my opinion, opposed to the decision of the English Court in the case of -- 'Hunt v. Richardson', (1916) 2 K B 446 (L). In that case the three learned Judges (Darling, Lawrence and Avory, JJ.) who formed the majority and allowed the appeal and quashed the appellant's conviction, holding that no offence had been committed, either found that 'the milk supplied' was 'genuine milk' and 'there was no demand by the purchaser of any particular quality but only of 'new morning milk' which was in fact supplied' and 'there was no evidence upon which the Justices could find it was not of the nature, substance and quality of the article demanded' (Vide page 453 -- per Avory, J.) 'or' that 'it was genuine new milk' and not 'injurious to health' and the appellant 'was selling as 'new milk' that which was in fact milk as recently taken from a healthy cow' (Vide pages 467 and 468 -- per Lawrence, J.), 'or' that the statutory presumption against the genuineness of the milk supplied arising from its deficiency in milk fat as compared with the prescribed standard had been rebutted and the. milk supplied was proved to be 'genuine' and 'in its natural state' (Vide pages 474 and 475 -- per Darling, J.).

In the present case the sample Poori wasclearly 'not of the nature, substance or 'quality which it' purported or was 'representedto be', namely, ^^?kh , Hkktk iwjh** or'Poori fried in ghee', -- which was the articledemanded, -- its 'ghee content' not being, asfound above, of the standard quality, as prescribed by the statute, and so 'adulterated'.(Vide Sub-clause (v) of Clause (c) of Section 3(2) of the oldAct of 1923 and Section 5(1) of the new Act of 1951)that is, not genuine. 'Hunt's case' (L) is, therefore, plainly distinguishable, & the majority decision cannot be applied here to the appellants' benefit, far less the minority judgments ofScrutton and Bray, JJ., according to which eventhe genuineness of the milk supplied might nothave been by itself any sufficient answer to theappellant's prosecution there and he might havebeen convicted of the offence of selling milkwhich was not of the nature, substance orquality demanded notwithstanding the fact that it was genuine milk.

23. There is one other case to which I ought to refer before closing the discussion on this part of the case. That is a decision of the Madras High Court -- the judgment was delivered by Lakshman Rao, J. -- reported in --'Public Prosecutor v. Narayana Ayyar' : AIR1940Mad173 which fully supports the view I have taken above.

24. I shall now take up the appellants' third point or the final submission of Mr. Dutt. As already indicated, this submission comprises a double or twofold argument, namely, first, that by reason of the repeal of the earlier statute, under which this prosecution had begun, pending the conclusion of the trial, the proceedings lapsed and could not be continued, and so the appellants' conviction and sentence should be quashed and they should be acquitted and, secondly, that, in any event, the present appeal should be allowed and a retrial ordered on charges, duly framed) under the new Act.

25. To the first part of this argument Section 8, Bengal General Clauses Act (I of 1899), affords a sufficient answer (Vide Clauses (d) and (e)), and no question of the lapsing of the proceedings does at all arise. I am not also convinced --and nothing could be placed before me by Mr. Dutt in support of his relative contention--that there has been any change, made by the new Act, in the procedure for prosecutions like the present, but even if there be any, that should not be of much significance as, in my opinion, the old offences would still be dealt with under the old Act and only the new offences under the new as both the Acts -- the old and the new -- deal with the respective offences, penalties and procedure in a connected series thus attracting the principle laid down in -- 'In re Kale's Patent', (1920) 2 Ch 377 (N), and underlying also Clauses (d) and (e) of Section 8, Bengal General Clauses Act, already cited. (Vide also in this connection -- 'Jatindra Nath v. Jetu Mahato', AIR 1946 Cal 339 (O)).

The true position then is that the appellants' conviction would properly be not under the new Act but under the old and their sentences also on that footing. When, however, it is remembered that same are the ingredients for offences under Sections 406/488 of the old Act and Sections 461/ 537 of the new, it is idle to contend that the appellants have been prejudiced by the trial and that the proceedings should be quashed and their conviction and sentence set aside and they should be acquitted. In the premises it is also hardly possible to claim a retrial as envisaged in the second part of the appellants' third contention, and as, in inflicting punishment, the learned Magistrate, although he has chosen to convict the appellants under the new Act, has confined himself within the lesser limits prescribed by the old statute, and the sentences do not at all appear to be service, the only thing that requires to be done in this appeal, in the circumstances of this case, is to alter the appellants' conviction from one under Sections 461/537 of the new Act to one under Sections 406/488 of the old Calcutta Municipal Act of 1923. The appellants' third contention also, therefore, fails in both its parts and it is rejected.

26. In the result, this appeal is dismissed, the appellants' conviction being merely altered to one under Sections 406/488 of the Calcutta Municipal Act of 1923 but their sentences confirmed.


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