SEN MAHASAY Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This Rule is directed against the Order of Shri. B. Moitra, the learned Senior Municipal Magistrate of Calcutta whereby he has convieled the petitioners because of infringement of the provision of Section 442 of the Calcutta Municipal Act and has sentenced, the petitioners to pay a fine of Rs. 10, in default, to suffer simple imprisonment for five days.

(2.) The case for the prosecution was that the accused petitioner Messrs Sen Mahasay and the petitioner No. 2 Biswanath Sen were carrying on business of an eating house at premises No. 104, Rash Behari Avenue without a licence under Section 442 of the Calcutta Municipal Act. The defence was that the accused persons were not carrying on any business of eating house at the said premises but they have a sweetmeat shop mainly for selling various kinds of sweetment to the customers and occasionally some of the customers used to taste the sweetmeat sitting there before purchase. The petitioners duly obtained a licence under rule 50 of the Rules made under the Prevention of Food Adulteration Act 1954 and, as such, no further licence under Section 442 is called for.

(3.) The learned Magistrate on a consideration of the evidence adduced in this case has found that Section 442 of the Calcutta Municipal Act has not been repealed by virtue of the provision of Section 25 of the Prevention of Food Adulteration Act, 1954 inasmuch us the provision contained in Section 442 has got a separate existence of its own untrammelled by the provision of Rule 50 of the Rules made under the Prevention of Food Adulteration Act. On facts the learned Magistrate has found that the evidence in the case was clear enough to show that the petitioners ran an eating house at the aforesaid premises and, therefore, as no licence was taken under Section 442 of the Calcutta Municipal Act they were liable to be convicted.