S.K.Sen, J. - (1.) This revisional application is directed against the conviction of the petitioner M/s Model Electric Oil Mill under Section 442 taken with Section 537 of the Calcutta Municipal Act, 1951, and the sentence passed on the firm of a fine Rs. 20/- only; also against the conviction of the petitioner Moni Mohan Banerjee, Lalit Mohan Banerjee and Shib Charan Mukherjee who are the proprietors of the mill, under the same section and the nominal sentence passed thereunder of a fine Re. 1/- each only. The petitioners were prosecuted under Section 442/537 of the Calcutta Municipal Act, 1951, on the ground that no license had been taken out for the year 1955-56 under Section 442 of the Calcutta Municipal Act. Section 442 provides that no person shall without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, keep any eating-house, tea-shop, hotel, boarding house, bakery, aerated water factory, ice factory or other place where food is sold or prepared for sale. The Corporation authorities claimed that since in the oil mill, mustard oil, which is an article of food according to the definition contained in Section 5, Clause 33 of the Act, is prepared for sale, a license is required under Section 442 of the Calcutta Municipal Act for the oil mill, and as the petitioner failed to take out such a license, they committed the offence charged.
(2.) The accused all pleaded not guilty and the defence was that the accused had taken out a license under Section 437 of the Calcutta Municipal Act, for using the premises for the manufacture of an edible oil i.e. mustard oil and that the accused had also taken out a trade license under Section 218 of the Calcutta Municipal Act, and that the accused were not required to take out another license under Section 442 of the Calcutta Municipal Act, and that no oil mill had taken out such a license. It was also urged for the defence that Section 442 of the Calcutta Municipal Act is not intended to apply to a place where articles of food like mustard oil are manufactured, but that it is meant for a place where some article of food ready for direct consumption is made or served. Further it was urged for the defence that under Section 25(1) of the Prevention of Food Adulteration Act, 1954, a Central Act, all the provisions contained in the Calcutta Municipal Act relating to Prevention of Food Adulteration Act and to licensing of shops for the sale or manufacture of foodstuffs have been repealed with effect from 1-6-1955, when the Prevention of Food Adulteration Act came into force, and that therefore, even if Section 442 of the Calcutta Municipal Act were applicable to an oil mill, the Calcutta Corporation no longer had jurisdiction to require a license under Section 442 of the Calcutta Municipal Act; that the liability of the accused if any, continued only up to 31-5-1955, and the present prosecution having been filed on 29-6-1956, the prosecution was barred under the provisions of Section 582 of the Calcutta Municipal Act, under which a complaint for an offence must be made within 3 months from the date of the commission of the offence or the date when the commission of the offence is first brought to the notice of the Corporation or the Commissioner.
(3.) The learned Chief Municipal Magistrate in his elaborate judgment dealt with all the points of defence mentioned above and some additional points as to procedural defects which have not been urged before me; and he decided all the points against the accused. The learned Magistrate held that the accused were liable to take out a license under Section 442 of the Calcutta Municipal Act, and that the section, so far as it related to the licensing of a place for the preparation of mustard oil and similar articles, was repealed only after the rules framed by the Central Government and the rules framed by the West Bengal State Government under the Prevention of Food Adulteration Act were made and published, and the rules framed by the State Government under the Act came into force only on 12-12-1957 and that therefore, prosecution of the accused under Section 442 of the Calcutta Municipal Act was not improper and was not barred by limitation. The learned Magistrate also negatived the defence contention that Section 442 of the Calcutta Municipal Act was not intended to apply to a place like an oil mill where mustard oil which is not directly consumable by human beings is manufactured. The learned Magistrate conceded that oil mills had not been previously required to take out licenses tinder Section 442 of the Calcutta Municipal Act, but he held that this was an oversight on the part of the Calcutta Corporation authorities, and that as under the law the liability existed the fact that such license had not previously been asked for, was no defence, but in that view the learned Magistrate imposed a lenient sentence on the accused.;