EMPEROR Vs. RATANSI HIRJI

JUDGEMENT

(1.) This was a test case brought against the applicant at the instance of the Bombay Municipality for an offence under Section 412A (6) of the City of Bombay Municipal Act (Bom. III of 1888), The Chief Presidency Magistrate, before whom the applicant was tried, convicted and sentenced him to pay a fine of Rs. 10. From the conviction and sentence the applicant has come before us in revision.

(2.) Section 412A (6) of the City of Bombay Municipal Act, 1888, was inserted by Bombay Act VI of 1913. As since modified it reads as follows :- 412 A. No person shall without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf... [b) use any place in the City for the sale of milk, butter or other milk products. The words "butter or other milk products", appearing after the word "milk" in Clause (b) of this section, were inserted by Bombay Act VI of 1916, Section 8. It is admitted by the applicant that he uses a place in the Bombay city for the sale inter alia of ghee, but he contends that he never keeps in that place a quantity of ghee for sale in excess of four cwts. He further admits that he has no license from the Bombay Municipality for the sale of ghee but contends that under the provisions of & 394 of the Municipal Act he is exempt from taking out a license for the sale of ghee which is not in excess of four cwts. Section 394 of the Municipal Act inter alia provides :- (1) Except under and in conformity with the terms and conditions of a license granted by the Commissioner no person shall (a) keep, in or upon any premises, for any purpose whatever, (i)... or (ii) any article specified in Part II of Schedule M, in excess of the quantity therein prescribed as the maximum quantity of such article which may at any one time be kept in or upon the same premises without a license.... Schedule M, Part II, mentions "Ghee kept for sale" and the "Maximum quantity which may be kept at any one time without a license"as"4 cwts." The present a, S94 of the Municipal Act was substituted for the original section by Bombay Act II of 1911, Section 15, The clause "Ghee kept for sale...4 cwts." was inserted in Schedule M, Part II, by Bombay Act VIII of 1918, Section 22(a).

(3.) The learned Magistrate is of opinion that "ghee" falls under the description "other milk products" in Art. 412A (6). For the meaning to be given to the term "ghee" he relies upon Section 4(ii), espln. (1), of the Bombay Prevention of Adulteration Act (Bom. V of 1925) which states that ghee or butter which contains any substance not exclusively derived from milk shall be deemed to be an article of food not of the nature, substance or quality it purports to be.