PUBLIC PROSECUTOR Vs. P K RAMACHANDRA IYER

JUDGEMENT

(1.) This is an appeal by the Public Prosecutor against the order or acquittal passed by the learned District Magistrate (Judicial) of Visakhapatnam in Criminal Appeal No. 126 of 1954 preferred against C.C. No. 2996 of 1954 on the file of the Sub-Magistrate Visakhapatnam. The respondent was accused of an offence under section 5 (1) (b) and Rule 28 of the rules framed under section 20 (2) (f) of the Madras Act III of 1918.

(2.) The case against the accused who is the proprietor of a hotel was that he was in possession of ghee adulterated with fat not derived from milk or cream to the extent of 95 per cent, for the purpose of serving it along with the meals he caters to his customers. The learned trial Magistrate found the accused guilty both under section 5(1) (b) of the Act as well as Rule 28 framed by the Government and sentenced him to pay a fine of Rs. 30 and in default, to undergo simple imprisonment for two weeks. On appeal, the learned District Magistrate apparently proceeded on the footing that the conviction was solely under section 5 (1)(b) of the Act. It seems to have been contended before him that the conviction under section 5(1) (b) was bad, because the complaint only quoted rules 28 and 29 of the rules framed under the Act without any reference having been made to the section. He rejected that contention. But, unfortunately he seems to have confined his attention to the conviction only under section 5 (1) (b) ignoring the fact that there was a conviction also under Rule 28. The whole of his judgment is devoted to a discussion as to whether the conviction under section 5 (1) (b) is valid or not. He therefore seems to have thought that it is necessary for the prosecution to establish that the accused was telling the customers that he was using only ghee and that the liquid he was using as ghee was adulterated one. He observes thus :- "There is no evidence in this case that he represented to the customers that he was using only ghee".

(3.) Then he proceeds to say :