Decided on March 06,1968

Silchar Municipal Board On The Complaint Of Dr. Nirmal Krishna Appellant
Mukul Chandra Deb Roy Respondents

Referred Judgements :-



C. Sanjeeva Row Nayudu, C.J. - (1.)THIS is an appeal against an acquittal of the respondent Mukul Chandra Deb Roy of Messrs. Chunilal Hulaschand of Silchar on a charge under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'),
(2.)THE offence alleged against the respondent is that he Sold sealed condensed milk, which did not conform to the standard which condensed milk should satisfy. The case of the prosecution is that the respondent was selling sealed tins of condensed milk known as 'Queen of the World'. The sample of these tins was purchased by, the Food Inspector the complainant appellant, who sent the same for analysis to the Public Analyst. The report of the Public Analyst showed that on analysis the condensed milk contained milk fat 0.53 per cent and total milk solids 38.01 per cent. As the milk fat contained is recognised to be of the standard of 9 per cent, public analyst opined that the sample sent to him was not full cream condensed milk as declared on the label of the tin and that it was misbranded. On this report proceedings were taken against the respondent under Section 7 read with Section 16 of the Act.
The Court below held that the respondent did not know the contents, that the genuineness of the label was not challenged by the prosecution and that the respondent had produced a leash memo delivered to him by the traders in respect of the article in question, which cash memo according to the learned Magistrate satisfied the requirements of Section 19(2) of the Act. On these grounds the Court below acquitted the respondent.

(3.)AT the outset, Mr. Lahiri, the learned Counsel for the respondent, took the objection, that the special leave granted by a Bench of this Court under Section 417(4), Criminal Procedure Code, was beyond time, that that Division Bench had no jurisdiction to condone the delay in filing the petition and, therefore, the leave itself must be deemed to be barred by time and consequently the appeal should not and cannot be heard. He placed reliance on. the case of Krishnasami Panikondar v. Ramaswami Chettiar, ILR Mad 412 :, AIR 1917 PC 179. That was a case dealing with the admission of an appeal after the period of limitation without notice to the respondent. Their Lordships of the Privy Council in this case held that when an order admitting an appeal has -been made in the absence of the respondent, and without notice to him, to preclude him from questioning its propriety would amount to a denial of justice. But that was not a case either under the Criminal Procedure Code or in regard to the grant of a special leave. It may be noted that under Section 417(4), Criminal Procedure Code, there is no provision for issuing a notice or hearing the respondent before granting leave, the grant or refusal of the leave being purely a matter of discretion of the Court receiving the leave application. That apart, a Division Bench of this Court, which received the special leave, had condoned the few days' delay in presenting the same. This order of condonation is questioned before us as devoid of jurisdiction.
It is true that there were earlier decisions of this Court, wherein it was held that as the rule of limitation was specific under Section 417(4), Criminal Procedure Code and directly limited the period within which the leave application could be filed, it is not open to the Court to extend the period of limitation. It is well known that it is open to the Courts of law to make orders which they consider are correct and the fact that the orders are found to be wrong does not affect the orders, unless the orders are set Aside on appeal. In the instant case, the order of the Bench of this Court had not been questioned on appeal before the Supreme Court. That being so, it is not open to us to re -examine the validity of the order of the Bench. We, therefore, must accept the position that the delay had been condoned, the leave application had been granted properly and that the appeal is before us as a proper appeal. We cannot, therefore, uphold the preliminary objection taken by Mr. Lahiri.


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