STATE OF MAHARASHTRA Vs. JAL K PATEL

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay against the order passed by the Presidency Magistrate, Second Court, Mazagaon, acquitting the accused, who was being prosecuted for preparing, or causing to be prepared or selling or distributing ice-cream in contravention of a notification issued by the Government of Bombay on 24-1-1947. By this notification, the Government of Bombay directed that within the limits of the Greater Bombay, no person shall except under and in accordance with the conditions of the licence granted by the Director of Civil Supplies or the Milk Commissioner, Bombay, (a) use milk, cream, skimmed milk, dried milk, milk powder or any milk product (including curds and mawa) for the preparation of ice-cream (including Kulfimalai) or (b) distribute in a public place or sell at any place ice-cream (including Kulfimalai) for the preparation of which milk, cream, skimmed milk, dried milk, milk powder, or any milk product (including curds and mawa) has been used.

(2.) THIS notification was issued under Clause (d) of Sub-section (2) of Section 3, Essential Supplies (Temporary Powers) Act, 1946, which empowers the Central Government to make orders for regulating by licences, permits or otherwise, the distribution, use or consumption of any essential commodity. The word "essential commodity" is defined in Section 2 of the Act as including foodstuffs. The word "foodstuffs is separately defined, in the same section as including edible oilseeds and oils. Section 4 of the Act empowers the Central Government to direct that the power to make orders under Section 3 shall be exercisable by such Provincial Government as may be specified in the direction. Under this section, an order was issued by the Central Government on 21-10-1946, by which the powers conferred on it by Section 3 of the Act in relation to foodstuffs were also made exercisable by any Provincial Government, subject to the condition that before making any order relating to any matter specified in Clause (d) of Sub-section (2), the Provincial Government obtained the concurrence of the Central Government.

(3.) ON 8-10-1948, witness Marshall gave a party at "all Bless Baug" in Bombay in order to celebrate the thread ceremony of his son. He engaged the accused as a caterer. Ice-cream and cold-drinks were served at this party. The report of the Chemical Analyser to Government shows that the ice-cream served at this party contained milk fat and lactose, both milk products. The accused had not obtained a licence either from the Director of Civil Supplies or from the Milk Commissioner, as required by the notification referred to above. He was, therefore, prosecuted. He was charged with preparing or causing to be prepared or distributing or selling ice-cream by using milk, cream, skim-milk, dried milk, milk powder or any milk product in contravention of the notification. He pleaded not guilty to the charge. He admitted that he had been asked by Marshall to make arrangements for supplying ice-cream, but hastated that he had told Marshall that he himself did not possess a licence and that he would arrange with a licensed contractor who would supply and serve ice-cream. Accordingly he placed an order for ice-cream with one Nasarwanji Vachha, who possessed a licence, and it was this Vachha who, according to the accused, brought the icecream and served it at the party. Marshall states in his evidence that although he had placed an order for catering with the accused and had told him that it was his business to arrange for ice-cream, the ice-cream was actually brought by some person other than the accused. In view of this evidence, the learned Magistrate held that the charge against the accused had not been proved. He also came to the conclusion that the notification issued by the Bombay Government was ultra vires, as milk was separately specified as an essential commodity in the Bombay Essential Commodities and Cattle (Control) Act, 1946, passed by the Bombay Legislature shortly after the Essential Supplies (Temporary Powers) Act had been passed by the Central Legislature. According to him, orders in regard to milk could only be issued under the Bombay Act. The learned Magistrate, therefore, acquitted the accused. Being dissatisfied with that order, the Government of Bombay have come in appeal.