RAMESWAR MARWARI Vs. AMAR NATH SINHA

JUDGEMENT

(1.) THE petitioner in this case has been convicted under Secs.406 and 407 read with Section 48B, Calcutta Municipal Act, which has been extended to Howrah and sentenced to pay a fine of Rs. 150 or in default to undergo simple imprisonment for three months. THE prosecution case is that the petitioner stored for sale 127 tins of mustard oil which was not of the prescribed quality and which was adulterated. It appears that there was a previous trial at which the petitioner was convicted but that conviction was set aside on appeal. THEre was a retrial with the result as stated above. At the trial the petitioner pleaded not guilty. He also examined one witness to show that he acted as a broker in respect of sale of the 127 tins of mustard oil, and that at the material time he was keeping the tins, because they were returned by the purchaser who was unable to pay the price. THE learned Magistrate was clearly in error in referring to an alleged plea of guilty at the previous trial. Had the present conviction been based on this alleged plea of guilty, I would have found it necessary to set aside the conviction. THE Magistrate however has relied upon other evidence, namely the evidence of P.W. 1 and P.W. 2 along with the evidence of D.W. 1. THE finding is "that the accused stored the oil for sale, and manufactured the oil himself directly or indirectly by his son."

(2.) THE learned advocate for the petitioner has contended that the Magistrate should have relied upon D.W. 1 and found that the petitioner was merely a broker to the transaction. That is not finding, and is not also consistent with the fact that the petitioner was actually storing the oil, and that there was a cistern containing oil which, according to the Magistrate, was identical with the oil in the tins. However, even if it be the case that the petitioner was storing the oil in transit as a broker, that would not take him out of the provisions of Secs.406 and 407. Sub-section (1) of these two Secs.is wide enough to cover a case like that of the petitioner even on the assumption that he was acting as a broker and keeping the tins in transit. THE conviction is therefore affirmed. THE sentence need not be interfered with. THE rule is discharged.