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TMI Blog1952 (12) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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' which latter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly 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' ; -- 'Firm Ballavdas Iswardas v. Sanitary Inspector, Howrah Municipality', 45 Cal W N 661 (D) and -- 'Joykali Ganguly v. Sanitary Inspector, Howrah Municipality' . 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention 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 prosecution upon the plea that the prosecuting Corporation not having placed any materials before the Court to exclude the possibility o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the elements 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 standard quality, as pre scribed by the statute, and so adulterated . (Vide Sub-clause (v) of Clause (c) of Section 3(2) of the old Act of 1923 and Section 5(1) of the new Act of 1951) that is, not genuine. 'Hunt's case' (L) is, there fore, plainly distinguishable, the majority decision cannot be applied here to the appellants' benefit, far less the minority judgments of Scrutton and Bray, JJ., according to which even the genuineness of the milk supplied might not have been by itself any sufficient answer to the appellant's prosecution there and he might have been convicted of the offence of selling milk which was not of the nature, substance or quality 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. Na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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