R. P. MOOKERJEE, J. :- This is an application in revision against an order under S. 421, Calcutta Municipal Act passed by the Municipal Magistrate directing the destruction of certain tinned jam, marmalade etc., belonging to the petitioners defendants and at their cost, on the finding that the seized stock was unfit for human consumption.

2. Proceedings out of which the present rule arises were initiated on a complaint, under S. 421, Calcutta Municipal Act, hereafter referred to as the Act, filed by a Food Inspector of the Calcutta Corporation. The allegation was that the entire lot of jam, marmalade etc., packed in tins, which ware stored at 30 Park Lane, Calcutta, had been found on examination to be unwholesome, unsound and unfit for human consumption. Some of the tins had been seized by the Corporation Officer while the remaining quantity of the stock was kept under seal. As required under said S. 421 the seized articles were produced before the Magistrate for inspection, enquiry and necessary orders.

3. After the filing of the complaint notice was given to the petitioners defendants. The defence as set out was that the defendant company had purchased the stock in question from the Government of India, as being the surplus stock of tinned food which had been brought out by the U.S.A. Military Authorities. The stock as purchased consisted of 8 lbs. tins and the defendants subsequently found out that such tins were too big for ordinary customers. Steps were accordingly taken to have the jam repacked in smaller 20 oz. tins. The contents were reprocessed before being recanned. Such recanning and subsequent sale in the open market continued from February to November 1947. At the request of the Department of Agriculture and the Central Government, the Director of Public Health, West Bengal, had some of the same tins examined in the Public Health Laboratory for ascertaining whether the contents were fit for human consumption. Before the submission of the final report of analysis the Health Officer of the Corporation visited the godown at 30, Park Lane and had the stock seized and sealed as stated already. The seizure report was sent to the Municipal Magistrate by the Food Inspector who had accompanied the Health Officer. The final report submitted by the Director of Public Health Laboratory bears the date 6th December 1947-a 4 days after the filing of the complaint before the Municipal Magistrate. The report indicated that there were no signs of deterioration of the contents and that after culture no organisms of three named varieties could be isolated.

4. In course of the hearing before the Municipal Magistrate, the Health Officer of the Calcutta Corporation as also some of the officers including the Food Inspector and a representative of the Corporation Laboratory were examined on behalf of the prosecution. The defence examined a number of witnesses. On the conclusion of the enquiry the stock seized was declared by the Magistrate under S. 421(2) of the Act to be unfit for human consumption and was directed to be destroyed at the cost of the petitioners defendants. This rule has been obtained by the petitioner against the orders for destruction passed by the Magistrate.

5. A preliminary objection has been raised before us by the Advocate-General on behalf of the Government of West Bengal. It is urged that orders passed by a Magistrate under S. 421(2) of the Act are in an executive capacity being merely ministerial and administrative directions and in any view the Magistrate did not act as a Court subordinate to the High Court. Accordingly, this Court has no jurisdiction to exercise revisionary powers under S. 435, Criminal P.C.

6. The order complained of has been passed by a Municipal Magistrate appointed under S. 531 of the Act and the relevant portion of that section is in the following terms :

The Local Government may appoint one or more Magistrates for the trial of offence against (a) this Act, and (b) the Rules or Bye-la