DAVIS HEWLET AND CO Vs. EMPEROR

JUDGEMENT

(1.) This appeal arises out of a conviction under Section 406 read with Section 488, Calcutta Municipal Act. There is some question as to whether the conviction was under Section 407, read with Section 488; but it is not necessary at this moment to refer to that question because it will be dealt with later.

(2.) The facts giving rise to this prosecution, shortly stated, are as follows: The accused firm carry on business as Chemists and Druggists. An employee of the Corporation of Calcutta went on 2 November, 1932 to the shop of the accused firm and asked to be supplied with a certain quantity of sodium citrate. Instead of sodium citrate being supplied to the Corporation employee potassium nitrate in which there was some sodium chloride was supplied. The article sold was found on analysis to contain potassium nitrate and also a little of sodium chloride. It is common knowledge that potassium nitrate with Sodium chloride thrown is something very different from sodium citrate. Sodium citrate is an inoffensive article and is often prescribed by medical practitioners. The sale took place on 2 November, 1932, and it appears that on 1st January 1933, the approval of the Chief Executive Officer to the institution of a case for the sale of potassium nitrate in the place of sodium citrate was asked for. The Chief Executive Officer having sanctioned the prosecution as appears from his facsimile signature on the application for summons, the necessary application for summons was made before an Honorary Magistrate in the Cossipore-Chitpore area within whose jurisdiction apparently the shop of the accused firm was situate. That the application for summons was made on 17th January 1933, has been found to be correct by us after an examination on the application for summons with the original register of summonses which has been produced before us. The numbers mentioned on the application for summons, namely, F. 1272 and L. Register No. 8381, are mentioned in the register of summonses and there cannot by any doubt whatsoever that is so. We are making a reference to the dates because an ingenious argument has been advanced before us that the prosecution was belated and was barred under S.534 Calcutta Municipal Act.

(3.) It was suggested that the application for summons was not made till 4 February 1933, which was beyond three months from the date of the sale of the article in question, namely, 2 November, 1932. The facts set out above and the dates referred to above constitute a Sufficient refutation of the contention that the prosecution was barred and nothing further need be said on that point. Be that as it may, it appears that an application was made for an adjournment of the hearing of the case on 4 March 1933, and it appears that the case was adjourned to 18 March 1933; but long before that the Corporation or its representatives made an application praying that the case might be treated as one under Section 406 read with Section 488 and not under Section 407 read with Section 488. The application was in writing and is on the record and it appears that he Magistrate for good and valid reasons granted the necessary permission for the correction of the number of the section under which the prosecution was to be had. At any rate, we are satisfied that the accused firm were not in any way prejudiced by reason of the correction being allowed by the Magistrate.