TaxTMI 
TaxTMI 
1952 (12) TMI 45
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....n 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 Magistr....
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.... 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 ju....
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....he 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 ....
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....eign 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 fat which I got by extracting the sample of Poori ......If the sample was made of pure ghee it should 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 the sample 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" 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." ....
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....been prescribed for 'Poori' or ''Poori fried in ghee' 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 mer....
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....evention 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, '', 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 th....
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....he 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' a....
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.... 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' , 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 th....
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....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 was clearly "not of the nature, substance or "quality which it" purported or was "represented to be", namely, or "Poori fried in ghee", -- which was the article demanded, -- its 'ghee content' not being, as found above, of the stand....