NISHIKANTA GHOSH Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(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

(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 the case -- 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 actual words 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\** --and got an answer in the affirmative. It has also been well and sufficiently established by the materials on record, -- and this also is not denied or disputed by the defence, -- that upon analysis of the sample sent to him as aforesaid the Corporation analyst submitted his report to the effect that "the sample is a sample of puri prepared in ghee which is adulterated with foreign fat". The report is dated 16-2-1952, and It has been marked as Ex. 2 in the case. The Corporation analyst has been examined by the prosecution as prosecution witness No. 2 and the other prosecution witness is the food inspector Sailesh Sen who figures as prosecution witness No. 1.