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1966 DIGILAW 164 (PAT)

Chedi Prasad v. Chairman, Daltonganj Municipality

1966-11-10

K.K.DUTTA, RAMRATNA SINGH

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Judgment Ramratna Singh, J. 1. The petitioner was convicted by a Munsif-Magistrate under certain provisions of the Prevention of Food Adulteration Act, 1954, and sentenced to undergo rigorous imprisonment for three months as also to pay a fine of one hundred rupees or in default to suffer further rigorous imprisonment for one month, for selling haldi (tumeric) in his shop on the 25th January 1963 His appeal against the conviction and sentence before the Sessions Judge of Palaman failed. 2. The only question raised by Mrs. Dharamshila Lal. who appeared for the petitioner in this Court is that the cognizance of the case was not taken in accordance with the provisions of Sec.20 of the said Act; and as there is no decision of this Court on the question raised this case was referred to a Division Bench. Sub-section (1) of Sec.20, which is relevant, stood as follows in 1963 and before the amendment by the Prevention of Food Adulteration (Amendment) Act. 1964, published in the Gazette of India. Extra ordinary Part II, dated the 26th December. 1964-- "No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Stale Government or a local authority or a person authorised in this behalf by the State Government or a local authority: Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Sec.12, if he produces in Court a copy of the report of the public analyst along with the complaint ." It will be noticed that the substantive provision of this Sub-section consists of two parts. The first part lays down that a prosecution for an offence under this Act can be instituted only on a complaint by the State Government or the local authority or a person authorised by either for this purpose In other words the complainant may be the State Government or the local authority or the authorised person. The other part provides in the alternative that such a prosecution may be instituted "with the written consent" of the State Government or a local authority or a person authorised by either for that purpose In other words, any person may be the complainant provided that he makes the complaint with the written consent (which means the previous sanction) of the Stale Government or a local authority or the authorised person. 3. In the instant case the local authority, i. e.. the Commissioners of Daltonganj Municipality bad admitledly on the 26th September 1957, authorised the executives of the municipality to file a complaint under the Prevention of Food Adulteration Act A perusal of Sections 24 and 25 of the Bihar and Orissa Municipal Act. 1922, shows that at least the Chairman and on some occasions the Vice-Chairman function as the executives of the Municipality There is no doubt however, that the Chairman always functions as the executive of the Municipality in view of Sec.24 of the Municipal Act. which is reproduced below: "The Chairman shall for the transaction of the business connected with this Act or for the purpose of making any order authorised thereby exercise all the powers vested by this Act in the Commissioners: Provided that the Chairman shall not act in opposition to or in contravention of any resolution of the Commissioners at a meeting, or exercise any power which is directed to be exercised by the Commissioners at a meeting." In the instant case it was the Chairman of Daltonganj Municipality by virtue of the aforesaid authorisation who filed a petition of complaint- dated the 31st May 1957, before the Sub Divisional Magistrate in respect of the offence alleged to have been committed by the petitioner under the provisions of the Prevention of Food Adulteration Act. and it was on this complaint that the Sub-Divisional Magistrate took cognizance of the offence against the petitioner In other words the prosecution in this case was instituted by a person authorised in this behalf by the local authority that person being the Charirman of Daltonganj Municipality. It was not a case of prosecution with the written consent or with the previous sanction of the State Government or the local authority concerned. Mrs. Dharamshila Lal, therefore, conceded that the decisions relating to complaints with the sanction or the written consent of any authority would not be relevant for the present case. But she relied on a decision of the Orissa High Court in K.G. Anjaneyalu V/s. Chairman, Puri Municipality, AIR 1963 Orissa 158, in Support of her argument that a complaint by the Chairman of a municipality authorised to file complaints by the Commissioners by a general resolution was not a complaint by a person authorised in this behalf as contemplated, by Sec.20 of the Prevention of Food Adulteration Act. In paragraph 4 of the report, his Lordship the Chief Justice of the Orissa High Court referred to Sec.20 of the Act and observed that the words in this behalf in Sub-section (11 of Sec.20 seem to require that the authorisation of the person to initiate prosecution must be with special reference to a particular case under the Prevention of Food Adulteration Act that was placed before the municipality concerned. In this connection, his Lordship relied on a decision of the Supreme Court in Gour Chandra Rout V/s. Public Prosecutor, Cuttack AIR 1963 SC 1198 . But that decision was with reference to Sec.198B of the Code of Criminal Procedure, Sub-section (8) of which speaks of the previous sanction of a Secretary to Govt. authorised by the dignitary in this behalf. This decision of the Supreme Court does not therefore, apply to a case where the complaint has been made by a person authorised in that behalf, e.g. the Chairman of Daltonganj Municipality in the instant case, without the previous sanction of any authority. It is true that in the Orissa case also the Chairman of Puri Municipality himself had filed a complaint for the prosecution of the petitioner thereof an offence under the Prevention of Food Adulteration Act; but probably some misapprehension was caused before his Lordship by an order of the Chairman in his office which read thus: "Prosecution sanctioned. Sd. Illegible. 28-3-61, Chairman. Puri Municipality." Under this impression, his Lordship appears to have observed that the words in this behalf require that the authorisation must be with special reference to a particular case and not a general authorisation. Sd. Illegible. 28-3-61, Chairman. Puri Municipality." Under this impression, his Lordship appears to have observed that the words in this behalf require that the authorisation must be with special reference to a particular case and not a general authorisation. His Lordship also referred to a decision of Kerala High Court in City Corporation of Trivandrum V/s. V. P. N. Arunachalam Reddiar, AIR 1960 Ker 856, and a decision of the Andhra Pradesh High Court in Public Prosecutor V/s. Satyanara-yana, AIR 1960 Andh Pra 27, to the effect that the provisions of Sec.20 of the Prevention of Food Adulteration Act are mandatory and non-compliance with the same would vitiate the entire proceeding There can be no dispute about this observation of the Kerala High Court and the other High Court; but as stated earlier, in the instant case there is no question of non-compliance with the pro visions of Sec.20, inasmuch as the complaint was made by the Chairman of Daltonganj Municipality himself and not with the previous sanction or with the written consent of any other authority. In City Corporation of Trivandrums case. AIR 1960 Ker 356 (supra), it was held that to sustain a prosecution initiated by a public authority for an offence under the Prevention of Food Adulteration Act. it is essential that the condition of sanction laid down by Sec.20 must be satisfied. In that case a sanction had been granted by the Commissioner of the Corporation, who had not been authorised to grant such sanction and therefore, it was held to be invalid under Sec.20. Here, too, it will be seen that the invalidity was on account of the defect in the sanction as in the decision of the Supreme Court referred to earlier. This decision of the Kerala High Court was, if I may say so, with respect, rightly distinguished in Municipal Health Officer and Food Inspector, Kozhikode V/s. Arthala Test Estate Co., AIR 1961 Ker 84 . In that case, this decision was relied on as an authority for the proposition that there can be no general delegation of any kind under Sec.20 of the Prevention of Food Adulteration Act. In that case, this decision was relied on as an authority for the proposition that there can be no general delegation of any kind under Sec.20 of the Prevention of Food Adulteration Act. His Lordship, therefore, observed that in the first case there was no proof that the Commissioner of the Corporation had been authorised by the State Government or the local authority concerned, namely, the Corporation and that by itself was sufficient to render the prosecution bad There was the further defect that, even assuming that the Commissioner had been so authorised, all he could have done was to prosecute, or give consent to the prosecution in each individual case; and he had no power to confer general authority on some other person to prosecute all offenders under the Act, nor could he give general consent to such prosecutions. His Lordship ultimately observed that there was nothing in the decision which indicated that the authorisation contemplated by Sec.20(1) could never be in the shape of a general delegation In conclusion, his Lordship held that the written consent contemplated by Sec.20(1) whether by the State Government or the local authority or by the authorised person, must be with reference to a particular offence committed by a particular person and there could be no general consent for the prosecution of all offenders. But at the same time his Lordship said that the special provision for authorisation enables a general delegation of this power by the State Government and local authorities to some other person to exercise on their behalf the discretion vested in them since, if the State Government or the local authorities had to consider each particular case, the section would become altogether unworkable having regard to the large number of offences that are committed. His Lordship interpreted the words authorised in this behalf to mean in simple words authorised to exercise the power conferred on the State Government and the local authorities and observed that these words could not be restricted in their scope by relating them to the words an offence. This second decision of the Kerala High Court supports the view that I have taken earlier, namely that the general authorisation in the instant case is valid and is in accordance with Sec.20(1) of the Act. 4. This second decision of the Kerala High Court supports the view that I have taken earlier, namely that the general authorisation in the instant case is valid and is in accordance with Sec.20(1) of the Act. 4. Incidentally, it may be stated that in the Orissa case there was a distinguishing feature on facts, inasmuch as the complaint had been filed by the Chairman of Puri Municipality on the authority of a general resolution passed by the Puri Municipality in 1951, long before the commencement of the Prevention of Food Adulteration Act, 1954 and therefore that resolution could be of no avail in prosecution under the Act of 1954. 5. There are other decisions also which support the said, view. In the State of Mysore V/s. Danjaya, AIR 1963 Mys 157, a Bench of the Mysore High Court was of the view that reading Sec.15 of the General Clauses Act, 1887, with Section 20(1) of the Prevention of Food Adulteration Act, it would be clear that the person to be authorised under Sec.20(1) could be a person who is authorised by virtue of his designation or the office that he holds and that 3 general authorisation of all Food Inspectors in the form of a resolution by a Municipal Council was valid. In that case, the Municipal Council had authorised all the Food Inspectors of a municipality to institute prosecutions for offences under Sec.20(1) of the Prevention of Food Adulteration Act. 1954: and such authorisation was held to be valid. The Mysore High Court as well as the Kerala High Court in the second decision of that Court quoted with approval the decision of a Full Bench consisting of six Judges of the Allahabad High Court in M. J. Powell V/s. Municipal Board of Mussoore. (1900) ILR 22 All 123. The relevant provision of law viz., Sec. 69 of Act XV of 1888, which was considered by the Allahabad High Court read thus: "A Court shall not take cognizance of an offence punishable under this Act or the rules made under this Act. except on the complaint of the Municipal Board, or of some person authorised by the Board in this behalf" The accused in that case was prosecuted at the instance of the Municipal Council and the complaint had been filed by the Secretary of the Council. except on the complaint of the Municipal Board, or of some person authorised by the Board in this behalf" The accused in that case was prosecuted at the instance of the Municipal Council and the complaint had been filed by the Secretary of the Council. It was contended before the Full Bench that the Secretary had not been duly authorised by the Board and that the Court was not therefore competent to take cognizance of the offence. The resolution, which authorised the Secretary to file the complaint read thus: "Resolved that the Chairman, Vice-Chairman. Health Officer and Secretary be vested with authority under Sec. 69, Act XV of 1883, to institute prosecution on behalf of the Board." It was urged before the Full Bench that the words "authorised by the Board in this behalf did not include a general authority to prosecution in regard to offences under the Act or Rules generally such as that given by the resolution, but were confined to a specific authority to be given by the Municipal Board in relation to the specific offence with which the accused was to be prosecuted. But the Full Bench of the Allahabad High Court held that a general authority a" contained in the said resolution was sufficient compliance with the requirements of law. 6 In Mohanlal Ram Singb Thakur V/s. Chief Executive Officer. Corporation, Jabalpur, AIR 1962 Madh Pra 17, the Chief Executive Officer of the local authority had filed a complaint for prosecution under the Prevention of Food Adulteration Act. He had also been authorised to grant sanction or to give written consent for prosecution under Sec.20(1) of the Act. 6 In Mohanlal Ram Singb Thakur V/s. Chief Executive Officer. Corporation, Jabalpur, AIR 1962 Madh Pra 17, the Chief Executive Officer of the local authority had filed a complaint for prosecution under the Prevention of Food Adulteration Act. He had also been authorised to grant sanction or to give written consent for prosecution under Sec.20(1) of the Act. His Lordship held the prosecution to be valid with the observation that when the Chief Executive Officer himself had signed the complaint it was ludicrous to contend that it required a separate sanction the sanctioning authority and the complaining authority being the same It will be recalled that in the Orissa case reliance was also placed on a decision of the Andhra Pradesh High Court in AIR 1960 Andh Pra 27 The prosecution in that case was held to be invalid because an old form which was in vogue under the Madras Prevention of Adulteration Act (III of 1918), had been adopted for the purpose of a complaint carrying out carelessly amendments mutatis mutandis to suit the requirements of the provisions of the Prevention of Food Adulteration Act. 1954 On the facts of that case, It was held that the procedure laid down in Sec.20(1) of the Central Act had not been followed: 7. On a review of all the decisions as also on a plain reading of Sec.20(1) of the Prevention of Food Adulteration Act, 1964, I am of the opinion that a general authorisation to a person by a local authority for the purpose of filing a complaint under Sec.20(1) of the Act is quite valid in law; and I am unable to accept the interpretation given in the Orissa case. 8. In the result the application is dismissed. K.K.Dutta, J. 9 I agree.