The judgment of the Court was as follows:
2. 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 petitioners Moni Mohan Banerjee, Lalit Mohan Banerjee and Shib Charan Mukherjee who are the proprietors of the mill, under the same sections and the nominal sentence passed thereunder of a fine of Re. 1/- each only. The petitioners were prosecuted under sections 442/537 of the Calcutta Municipal Act, 1951, on the ground that no licence had been taken out for the years 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 licence 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 licence is required under section 442 of the Calcutta Municipal Act for the oil mill, and as the petitioners failed to take out such a licence, they committed the offence charged.
3. The accused all pleaded not guilty and the defence was that the accused had taken out a licence 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 licence under section 442 of the Calcutta Municipal Act, and that no oil mill had taken out such a licence. 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 the Prevention of Food Adulteration Act and to licensing of shops for the sale or manufacture of food-stuffs have been repealed with effect from 1st June, 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 licence under section 442 of the Calcutta Municipal Act; that the liability of the accused if any, continued only upto the 31st May, 1955, and the present prosecution having been filed on 29th June, 1856, 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.
4. 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 licence 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 12th December, 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 licences under 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 licence had not previously been asked for, was no defence, but in that view the learned Magistrate imposed a lenient sentence on the accused. Mr. Nalin Chandra Banerjee appearing for the accused petitioners has again urged the points that section 442 of the Calcutta Municipal Act does not apply to a place like an oil mill; that in view of section 25(1) of the Prevention of Food Adulteration Act, section 442 of the Calcutta Municipal Act must be deemed to have been repealed at least in so far as a licence for the manufacture or sale of mustard oil is concerned, and that therefore the prosecution under sections 442/537, of the Calcutta Municipal Act is bad; and that the prosecution is barred by limitation in view of section 582 of the Calcutta Municipal Act.
5. The first point is whether section 442 of the Calcutta Municipal Act applies to a place like an oil mill where mustard oil or an article of food not ready for immediate consumption is prepared. Section 442 in terms refers to an eating-house, a tea-shop, a hotel, a boarding-house, a bakery, an aerated water factory and an ice factory; and it also mentions “other place where food is sold or prepared for sale”. The question is whether the expression “other place where food is sold or prepared for sale” covers a place where mustard oil is prepared or manufactured. No doubt at an oil mill, mustard oil is prepared or manufactured for sale, but the question is whether a place where mustard oil, which is not an article ready for direct human consumption but is still an article of food as defined in the Calcutta Municipal Act, comes within the terms of subsection (1) of section 442. Mr. Banerjee has urged that in view of the fact that seven types of premises are specifically enumerated in sub-section (1) of section 442, the residuary description “other place where food is sold or prepared for sale” must be interpreted ejusdem generis with the types of premises enumerated. All the places specifically enumerated are places where some article of food ready for direct consumption is prepared or served. It is, therefore, reasonable to infer that “other place” mentioned in the sub-section must also be a place where food ready for direct human consumption is sold or prepared. The learned Magistrate held that in the expression in question, the term ‘food’ could only mean food as defined in the Municipal Act, and not food ready for consumption, but the term to be interpreted is “other place” and not “food.” “Other, place” in the context prima facie means a place like the seven places specified before where food ready for consumption is prepared or sold. A marginal note to a section cannot ordinarily be used in connection with interpretation of the terms of a section, but in case of ambiguity or doubt, the marginal note may be referred to the marginal note to section 442 of the Calcutta Municipal Act is as follows: “Eating houses etc. not to be used without licence from Commissioner”. “Eating-houses etc.” would indicate eating houses and other similar places. Therefore it appears to be clear that the “other place” referred to in the body of the section must be a place of the same kind as an eating house and the other types of premises enumerated in the sub-section. I would therefore hold that section 442 of the Calcutta Municipal Act is not intended to apply to any place where an article of food which is not ready for immediate consumption is either manufactured or sold. On this ground alone therefore the prosecution must fail.
6. The next two points in this revision case proceed on the assumption that section 442 of the Calcutta Municipal Act, applies also to a place like an oil mill where an article of food which is not ready for immediate consumption is manufactured or sold. Assuming for the moment that section 442 of the Calcutta Municipal Act applies also to a place like an oil mill, I shall proceed to examine these arguments and the reply thereto.
7. Section 7 of the Prevention of Food Adulteration Act provides that “no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food, (ii) any misbranded food, (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence………”. Section 23 of the Act empowers the Central Government to make rules for the purpose of carrying out the objects of the Act, and among other things, the Central Government may make rules defining the conditions of sale and regulating by the issue of licences for the manufacture or sale of any article of food, in the interest of public health; and laying down special provisions for imposing control over the production, distribution and sale of any article or class of articles of food which the Central Government may by notification in the Official Gazette specify in this behalf. The Central Government has made rules under section 23 of the Act, and rule 50 provides that no person shall manufacture, sell, stock, distribute or exhibit for sale any of the following articles of food except without a licence; viz. milk, milk product, ghee, butter, edible oils, and so on; ten classes of articles are mentioned, and among them is included edible oils under which class mustard oil comes. This rule provides that the State Government or local authority shall appoint the licensing authority for the purpose, and that a separate licence shall be required to each separate place where such an article of food is manufactured or stored or sold. It is also provided that before granting a licence for manufacture or sale of any such article, the licensing authority shall inspect the premises and satisfy itself that it is free from sanitary defect. Thus licensing of manufacture or sale of mustard oil in relation to a particular premises is fully covered by the provisions of the Prevention of Food Adulteration Act taken with the rules, and if section 442 of the Calcutta Municipal Act is held to cover licensing of premises for the manufacture or sale of mustard oil, to that extent it must be deemed to be the corresponding State law which is repealed by section 25, sub-section (1) of the Prevention of Food Adulteration Act, which runs as follows: “If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that corresponding law shall upon such commencement stand repealed”. The Prevention of Food Adulteration Act came into force on 1st June, 1955. Therefore the Calcutta Corporation authorities had jurisdiction to ask for a licence from the petitioners under section 442 of the Municipal Act only for the period from 1st April, 1955 to 31st May, 1955 i.e for 2 months out of the year 1955-56; and since the liability to take out licence under section 442 of the Calcutta Municipal Act came to an end when the Prevention of Food Adulteration Act came into force, it has to be held that the present prosecution is barred by limitation, in view of the terms of section 582 of the Calcutta Municipal Act. In this connection, Mr. Santosh Kumar Basu appearing for the Calcutta Corporation has urged that under the provisions of the section 6 of the General Clauses Act, 1897, when an Act repeals any enactment hitherto in force, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed or affect any legal proceeding in respect of any such right, liability, penalty etc. as aforesaid. Mr. Basu has urged that under this provision, the liability which the petitioner incurred before section 442 of the Calcutta Municipal Act came to be repealed in respect of mustard oil continued, and a prosecution could be started in respect of such liability even-after the repeal of the section. This argument would be correct but for the provisions of section 582 of the Calcutta Municipal Act, which provides a period of 3 months' limitation for the institution of any prosecution for an offence under the Calcutta Municipal Act. Mr. Basu has sought to take advantage of subsection (2) of section 582, which provides that the failure to take out a licence under the Calcutta Municipal Act shall be deemed to be a continuing offence until the expiration of the period for which the licence is required to be taken out. Mr. Basu has urged that the licence was required to be taken out for the year 1955-56, and that year expired on the 31st March, 1956, and therefore limitation runs from 31st March, 1956; and the complaint having been filed on 29th June, 1956, the prosecution is not barred by limitation. But it has already been found that the liability to take out a licence under section 442 of the Calcutta Municipal Act remained only upto 31st May, 1955. It cannot be accepted that the offence of failure to take out the licence continued until the expiration of the financial year 1955-56; it only continued until the expiration of the corresponding law contained in section 442 of the Calcutta Municipal Act, i.e 31st May, 1955. Therefore the limitation cannot be saved by recourse to section 6 of the General Clauses Act of 1897. .
8. Mr. Basu has next urged that the corresponding law contained in section 442 of the Calcutta Municipal Act was not repealed as soon as the Prevention of Food Adulteration Act came into force, i.e on 1st June, 1955, but it was repealed only when the law enacted by the Prevention of Food Adulteration Act became complete, i.e after the Central rules and the State rules had been framed and published. Mr. Basu has urged that when the Act came into force on 1st June, 1955, the Central rule which specifies the list of articles of food for the sale or manufacture of which a licence is required was not in existence, and therefore section 7 clause (iii) which provides that no person shall manufacture or sell any article of food, for the manufacture or sale of which a licence is prescribed, except in accordance with the licence, had no meaning. Mr. Basu has urged when the Central rules were published and came into force on 24th September, 1955, and the list of articles of food for which licence is required was known, the Central law acquired some meaning; but that the law became complete and workable only after the State rules made under section 24 of the Act were published, which was on 12th December, 1957, for the State rules under section 24 of the Act prescribed the forms of licence for the manufacture, sale or storage of the articles of food for which licences are required, and prescribed the licensing authorities who would issue the licences, and also prescribed the fees required for such licence. Mr. Basu has urged that only after these rules were published, licence under the Central Act could be taken out; and therefore, only then the corresponding State law under section 442 of the Calcutta Municipal Act must be deemed to have been repealed.
9. This argument of Mr. Basu was accepted by the learned Chief Municipal Magistrate, and no doubt the argument has a reasonable and practical basis, because otherwise between the date when the Central Act came into force (1st June, 1955) and the publication of the State rules (12th December, 1957), neither the State law nor the Central law could be applicable, and therefore anybody might manufacture or sell any article of food without a licence and without any control. But the specific terms of sub-section (1) of section 25 have got to be given effect to Subsection (1) of section 25 definitely provides that upon the commencement of the Prevention of Food Adulteration Act, the corresponding law in the State shall stand repealed. It does not say that on the making of the rules by the Centre and by the State the corresponding law shall stand repealed. Even though the Prevention of Food Adulteration Act did not become a workable code until the State and the Central rules were framed, still as sub-section (1) of section 25 provides for the repeal of corresponding State law upon the commencement of the Central Act itself, I must hold that the corresponding law relating to licensing of premises for the manufacture or sale of mustard oil so far as it may be contained in section 442 of Calcutta Municipal Act must be deemed to have been repealed, not on 12th December, 1957, but on 1st June, 1955.
10. Accordingly, this Rule is made absolute and the conviction of the petitioners under sections 442/537 of the Calcutta Municipal Act, 1951, and the fines passed thereunder are set aside. The fines, if paid, will be refunded.
S.K.B