A. S. SARELA, J. ( 1 ) THE appellant has been convicted by the City Magistrate 6 Court Ahmedabad of an offence under sec. 16 (1) (a) (i) read with sec. 7 of the Prevention of Food Adulteration Act 1954 (herein after referred to as the Adulteration Act) for having sold adulterated cows milk and has been sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1000/in default of payment of which to undergo further rigorous imprisonment for three months. In appeal against that conviction to this Court several points of law have been raised which were not raised in the lower Court. Similar points of law have been raised in similar appeals by other accused persons pending before this Court in respect of cases of adulteration under the Adulteration Act. Therefore some of the advocates appearing in those cases who desired to intervene have also been heard on these points. ( 2 ) THE facts of this case which were broadly representative of the facts in other cases also so far as the points of law reised are concerned may be stated in brief. On 2-12-1965 at about 8 A. M. at Ahmedabad the Food Inspector Mangulal C. Mehta who is the complainant in this case went to the shop of the appellant Babulal Hargovandas who carries on business of selling milk and after intimating to him that he was the Food Inspector and was purchasing the milk for analysis purchased from him 700 ml. milk which was being sold as cows milk. This was divided into three parts in three bottles and 16 drops of formalin were added to the contents of each of the bottles. The bottles were then corked sealed and wrapped and they were sealed again over the wrapper and signatures of the panch one Adambhai Rasulbhai were taken. Then one bottle was given to the appellant one was kept by the Food Inspector to be produced in Court as required by the provisions of the Act and one was handed over that very day at about 11-30 A. M. to the Chemist Laxmansing Vaghela who has been examined as a witness in this case and who according to the evidence had been duly authorised by the Public Analyst Dr. Vyas. Vyas. The necessary specimen signatures and impression of the seal were also handed over to Vaghela along with the bottle. Vaghela having compared the signatures and the seals and satisfied himself that the sample was fit for analysis analysed the sample and found it to be adulterated. The adulteration was that the total solids non-fat were less than the minimum prescribed. The minimum prescribed was 8. 5% and what was found was 7. 4%. After the receipt of the report of the Public Analyst the Food Inspector filed the complaint on 6-4-1966 with the written consent of the Medical Officer of Health. ( 3 ) THE prosecution examined the Food Inspector Mehta the Chemist Vaghela and the panch Adambhai Rasulbhai The prosecution also produced several documents namely the intimation (Exh. 4) given by the Food Inspector to the appellant the appellants receipt for having received the bottle containing sample and the price thereof (Exh. 5) the authority given by the Public Analyst to Vaghela to receive samples and compare the seals etc. the report of the Public Analyst Dr. Vyas the sanction in writing for the prosecution given by Dr. Dixit Medical Officer of Health and the Resolution of the Ahmedabad Municipal Corporation (hereafter referred to as the Corporation) authorising the said Health Officer to give consent to prosecution. The appellant denied his signatures on the intimation and the receipt but had nothing to say about the prosecution evidence. The panch witness did not support the prosecution beyond admitting his signatures on the receipt Exh. 5 and on the labels and wrappers of the bottles. The only evidence therefore was of the Food Inspector Mehta and Chemist Vaghela and of the documents The learned City Magistrate found this evidence to be sufficient and convicted and sentenced the appellant as earlier stated. ( 4 ) IN the lower Court two points were raised on behalf of the appellant. One was that the panch not having supported the prosecution the requirements of sec. 10 (7) of the Adulteration Act were not in law complied with. The other was that paper slips bearing signatures of the panch ought to have been affixed on the top of the bottles and in the absence of such paper seals it must be assumed that there could have been tampering with the samples after they were taken and before they were analysed. The other was that paper slips bearing signatures of the panch ought to have been affixed on the top of the bottles and in the absence of such paper seals it must be assumed that there could have been tampering with the samples after they were taken and before they were analysed. Both the points were negatived by the learned City Magistrate. None of them has been urged before me and advisedly having regard to the decision of this Court in Manka Hari v. State of Gujarat (VIII G. L. R. 588 The view taken by me in that decision as regards the point relating to sec. 10 (7) has been accepted by the Division Bench of this Court in a decision given on 17-2-1969 in criminal appeal No. 752 of 1967 where an identical point was raised. ( 5 ) MR. H. K. Thakore who argued the appeal on behalf of the appellant made the following submissions:-1. The Food Inspector who filed this complaint was not competent to file it because the Medical Officer of Health who gave written consent to the filing of it was not validly authorised under sec. 30 (1) of the Adulteration Act as the authorisation should in law have been by the Municipal Commissioner and not by the Municipal Corporation as it purports to be. 2. Even if the Medical Officer of Health can be said to be validly authorised under the Resolution of the Municipal Corporation dated 17 the complaint is not in accordance with that Resolution as the Resolution authorises the filing of the complaint in the name of the Municipal Corporation but the complainant in this case is the Fond Inspector and in the complaint it is not stated that it was filed on behalf of or for Corporation. 3. The prosecution has failed to prove by positive evidence that the Food Inspector Mehta possessed the prescribed qualifications and was validly and legally appointed and therefore the whole basis of the complaint is absent. 4. The prosecution has failed to prove that the Public Analyst possessed the prescribed qualifications and was validly appointed and therefore his report was not admissible. 5. 4. The prosecution has failed to prove that the Public Analyst possessed the prescribed qualifications and was validly appointed and therefore his report was not admissible. 5. The prosecution has failed to prove by positive evidence that the formalities laid down by rules 14 to 18 20 and 21 of the Prevention of Food Adulteration Rules 1955 (hereinafter referred to as the rules) have been strictly complied with. ( 6 ) ). RULE 7 (2) of the said rules which permits the Public Analyst to cause the sample to be analysed is ultra vires because it is beyond the scope of sec. 23 (e) of the Adulteration Act. MESSRS. P. D. Desai J. S. Adhyaru and J. P. Joshi the learned advocates appearing for other accused in other cases have supported Mr. Thakore on these submissions. Mr. Desai has made an additional submission complementary to the fifth submission of Mr. Thakore. Mr. Desais submission is that all the said rules were mandatory and strict compliance was called for. . . . . . . . . . . . . . . . . . . . . . ( 7 ) THE Resolution of the Corporation is referable as is clear from its contents to sec. 20 (1) of the Adulteration Act. It is this section which substantially calls for construction in respect of the first submission. The section reads as under:-20 Cognisance and trial of offences:- (1 ). No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf by general or special order by the Central Government or 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 alongwith the complaint. (2) No Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence under this Act. Therefore sub-sec. (1) places a ban on the authorities and persons other than those mentioned in sub-sec. (1) from moving a Court of law for prosecution for an offence under the Adulteration Act. Sub-sec. (2) No Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence under this Act. Therefore sub-sec. (1) places a ban on the authorities and persons other than those mentioned in sub-sec. (1) from moving a Court of law for prosecution for an offence under the Adulteration Act. Sub-sec. (2) places a ban on Courts other than those indicated therein from trying any offence under that Act. We are not concerned here with sub-sec. (2 ). Sub-sec. (1) has a proviso under which certain specified persons can institute a prosecution. We are not concerned with the proviso. The main part of the sub-section with which we are concerned specifies certain authorities which are entitled to institute a prosecution. Under it prosecution can be instituted (i) by the Central Government or the State Government or a local authority or (ii) by a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority or (iii) with the written consent of any of these six authorities. (See State of Bombay v. Parshottam Kanaiyalal A. I. R. 1961 S. C. 1 (para 9) ). The expression local authority is defined in sec. 2 (viii) of the Adulteration Act and in the case of a local area which is a municipality the local authority means the municipal board or municipal corporation. Therefore the Municipal Corporation Ahmedabad is the local authority which can institute a prosecution under the Adulteration Act or authorise a person in this behalf by a general or special order to institute a prosecution or a prosecution may be instituted with the written consent of the Corporation or of the person authorised by it. In the present case the prosecution is purported to be instituted with the written consent of a person authorised in this behalf namely Medical Officer of Health by the Corporation. ( 8 ) MR. Thakores argument is that sec. 20 (1) confers a power on the authorities mentioned therein to set the penal provisions of the Adulteration Act in motion. He concedes that the authority so mentioned is not obliged to set the law in motion but has a discretion in the matter. ( 8 ) MR. Thakores argument is that sec. 20 (1) confers a power on the authorities mentioned therein to set the penal provisions of the Adulteration Act in motion. He concedes that the authority so mentioned is not obliged to set the law in motion but has a discretion in the matter. He says that nevertheless when the local authority decides to exercise that power or decides to give written consent to the exercise of that power or authorises a person to exercise that power it must in doing so act in the manner laid down in the Municipal Act here the Corporation Act by which it is constituted. According to Mr. Thakore under the Corporation Act it is the Municipal Commissioner alone who can act for the Corporation and he particularly relies on secs 67 (3) and 68 (1) of the Corporation Act. He points out that in the present case the Medical Officer of Health was authorised not by the Municipal Commissioner (hereafter referred to as the Commissioner) but by the Corporation. The said Officer was not therefore validly authorised and a complaint on the written consent given by him as has happened here is not competent. ( 9 ) BEFORE referring to the legal provisions which bear on this submission it is necessary to mention that this contention was not taken in the trial Court. This fact has some importance because Mr. D. C. Trivedi for the Corporation contended that if the submission that is now made had been made in the trial Court the Corporation could have shown that even if the submission was legally correct the authorisation of the Medical Officer of Health in this case was by the Commissioner also because it was the Commissioners proposal that was accepted by the Standing Committee and the Corporation. He stated that the Corporation would have produced before the lower Court the letter of the Commissioner dated 13 October 1955 which was placed before the Standing Committee. He offered to produce that letter of the Commissioner in this Court and in fact he handed over a copy of it to the advocate Mr. Thakore and the other advocates who have intervened and supported Mr. Thakore. But they did not agree to the production of this letter in this Court. He offered to produce that letter of the Commissioner in this Court and in fact he handed over a copy of it to the advocate Mr. Thakore and the other advocates who have intervened and supported Mr. Thakore. But they did not agree to the production of this letter in this Court. I have not thought it necessary to consider whether that evidence should be allowed as additional evidence in this Court because on the view I take of the legal provisions the authorisation by the Corporation is in accordance with law. ( 10 ) IT will now be convenient to turn to the relevant provisions of the Corporation Act. Sec. 4 specifies the Municipal authorities charged with carrying out the provisions of the Corporation Act. There are five authorities mentioned of which the three principal authorities are (A) the Corporation; (B) the Standing Committee; (C) the Municipal Commissioner. The Corporation according to sec. 5 is a body corporate of elected councillors who after their election elect from amongst themselves a Mayor in accordance with sec. 19. The Standing Committee according to sec. 20 consists of 12 councillors appointed by the Corporation in the manner provided in the section. The Standing Committee appoints its Chairman (sec. 21 ). The Commissioner is appointed by the State Government under sec. 36 but is remunerated from municipal funds (sec. 37 ). The office that he holds is not under the control of the Corporation and the duties of his office are as indicated by sub-sec. (2) those prescribed in the Act or in any other law for the time being in force. The Corporation the Standing Committee and other Committees are to dispose of their business in their respective meetings in the manner prescribed by the rules and the Commissioner is entitled to attend those meetings but not entitled to vote (sec. 43 ). Chapter VI which contains secs. 63 to 72 relates to the duties and powers of the Municipal authorities and officers. Sec. 63 makes it obligatory on the Corporation to make reasonable and adequate provision by any means or measures which it is lawfully competent to it to use or to take for each of the several matters specified in the various clauses of that section. Mr. Sec. 63 makes it obligatory on the Corporation to make reasonable and adequate provision by any means or measures which it is lawfully competent to it to use or to take for each of the several matters specified in the various clauses of that section. Mr. Thakore referred to clause 24 which reads:- fulfilment of any obligation imposed by or under this Act or any other law for the time being in force :- but did not pursue it obviously because sec. 20 (1) of the Adulteration Act does not impose any obligation. Secs. 64 65 and 66 of the Corporation Act provide for other duties of the Corporation obligatory and discretionary and are not relevant. Sec. 67 which is relevant provides in sub-secs. (1) and (2) as under:-67 (1) The respective functions of the several municipal authorities shall be such as are specifically prescribed by or under this Act. (2) Except as otherwise expressly provided in this Act the municipal Government of the City vests in the Corporation sub-sec. (1) therefore indicates that the municipal authorities have their respective functions specifically prescribed by or under the Corporation Act and if we read this alongwith sec. 4 (1) under which municipal authorities are charged with carrying out the provisions of this Act it becomes apparent that each of these municipal authorities is charged with carrying out its respective functions as specifically prescribed by the Act. Sub-sec. (2) of sec. 67 appears to be a residuary provision providing that where it is not expressly provided in the Act the municipal Government of the city vests in the Corporation. Reliance has been placed on behalf of the appellant on sub-sec. (3) the material portion of which reads as under:- - (3) Subject whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or the Standing Committee and subject also to all other restrictions limitations and conditions imposed by this Act or by any other law for the time being in force the entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which imposes any duty or confers any power on the Corporation vests in the Commissioner. . . . . . . . . . . . . . The rest of the sub-sec. . . . . . . . . . . . . . The rest of the sub-sec. (3) is not material nor is sub-sec. (4 ). Now subsec. (3) vests in the Commissioner the entire executive power for the purpose of carrying out the provisions of the Act and of any other Act for the time being in force which imposes a duty or confers any power on the Corporation. One of the arguments advanced is that sec. 20 of the Adulteration Act confers an executive power on to Corporation and this power vests in its entirety in the Commissioner by virtue of this provision the only limitations for its exercise being those indicated in the sub-section none of which limitations exist in the present case. Sec. 68 which is the next section relied on reads as under:-68 Any powers duties and functions conferred or imposed upon or vested in the Corporation by any other law for the time being in force shall subject to the provisions of such law and to such restrictions limitations and conditions as the Corporation may impose be exercised performed or discharged by the Commissioner. (2) The Commissioner may with the approval of the Standing Committee by order in writing empower any municipal officer to exercise perform or discharge any such power duty or function under the control of the Commissioner and subject to his revision and to such conditions and limitations if any as he shall think fit to prescribe. Therefore under sub-sec. (1) the power vested in the Corporation by any other law for the time being in force shall be exercised by the Commissioner subject to the provisions of such law and to such restrictions limitations and conditions as the Corporation may impose and the Commissioner is entitled under sec. (2) to empower any municipal officer to exercise that power provided he has obtained in that regard approval of the Standing Committee. Of the remaining sections of this Chapter the only other sections required to be mentioned are secs. 70 and 71 which empower the Corporation to call for extracts or report of Committees or sub-committees and from the Commissioner. . . . . . . . . . . . . . . . . . . . . . 15 In order to appreciate the import of sec. 70 and 71 which empower the Corporation to call for extracts or report of Committees or sub-committees and from the Commissioner. . . . . . . . . . . . . . . . . . . . . . 15 In order to appreciate the import of sec. 20 (1) of the Adulteration Act the other relevant provisions of that Act and the scheme of that Act as disclosed be those provisions will have to be noticed. Sec. 3 empowers the Central Government to constitute a committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of the Act. Sec. 4 provides for establishment of a Central Food Laboratory by the Central Government. Therefore in laying down food standards In the rules made by the Central Government under sec. 23 the Government is guided by expert advice. The penal provisions in this Act make some departure from normal rules of criminal liability. Sec. 7 which is the principal penal provision 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; etc. Therefore every person either an employer or his agent would be covered by this section. In respect of the vendor of an article of food the proof by the prosecution of mens rea is not necessary for sec. 19 (1) as pointed out by the Supreme Court in Mangaldas v. Maharashtra State (A. I. R. 1966 S. C. 128) clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit the offence under sec. 15 (1) (a ). Sec. 17 provides for offences by companies and provides for liabilities of persons in charge of the Company and raises a presumption of their liability under certain circumstances. These provisions indicate the nature of penal liability. Now a sale of an adulterated article of food includes having regard to the definition of sale under sec. 15 (1) (a ). Sec. 17 provides for offences by companies and provides for liabilities of persons in charge of the Company and raises a presumption of their liability under certain circumstances. These provisions indicate the nature of penal liability. Now a sale of an adulterated article of food includes having regard to the definition of sale under sec. 2 (13) a sale for analysis and therefore a sample purchased by the Food Inspector under the power conferred on him under sec. 10 is a sale. This introduces a special machinery and method of detection. Sec. 11 requires a Food Inspector to divide a sample takers for analysis into three parts in three different containers and requires him to seal or fasten up each part in such a manner as its nature permits and one of these parts is to be given to the person from whom the sample is taken another is to be sent to the Public Analyst and the third is to be retained by the Food Inspector for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory. Now the report of the Public Analyst to whom one of the parts is sent for analysis can according to sec. 13 (5) be used as evidence of facts stated therein in any proceeding under that Act. It can however be superseded by the report of the Director of Central Food Laboratory which the complainant Food Inspector as well as the accused vendor is entitled to obtain under the provisions of sub-sec. (2) of sec. 13. Therefore these provisions contained in secs. 10 11 and 13 introduce a special machinery of detection investigation and proof. Sec. 14 requires that no manufacturer distributor or dealer of any article of food shall sell such article to any vendor unless he also gives warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Sec. 14a lays upon the vendor an obligation to disclose to the Food Inspector the name address and other particulars of the person from whom he purchased the articles of food. Sec. 16 provides for penalties. Sub-sec. (1) of sec. 19 has been earlier referred. Sec. 14a lays upon the vendor an obligation to disclose to the Food Inspector the name address and other particulars of the person from whom he purchased the articles of food. Sec. 16 provides for penalties. Sub-sec. (1) of sec. 19 has been earlier referred. It provides that it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale. Sub-sec. (2) specifies those cases where he can on proof of facts stated therein be deemed to have not committed the offence. Then we have sec. 20 which has been earlier set out. ( 11 ) SEC. 20 (1) must therefore be construed in the light of these provisions which provide for a special machinery and method of detection special method of investigation and proof and bar of certain defences and availability of escape from liability on proof of certain facts only. Now sec. 20 (1) modifies the general principle of law that any person can set the criminal law in motion and it specifies the authorities which only can institute a prosecution for offences under this law. It is obvious that the authorities so specified are not obliged to prosecute but have a discretion in the matter. It is also obvious having regard to the nature of the other provisions earlier mentioned that the authorities specified under sec. 20 (1) are not to prosecute mechanically in each and every case of alleged contravention but are to prosecute in cases which are considered fit for prosecution. In respect of a local authority which is a municipal Corporation with which we are here concerned the prosecution may be by the Corporation or with the written consent of the Corporation or by a person authorised by the Corporation in this behalf or with the written consent of a person so authorised. The Supreme Court has in State of Bombay v. Parshottam Kanaiyalal (supra) pointed out that in giving written consent the local authority or the person authorised by the local authority must apply its or his mind and exercise a discretion. The Supreme Court has in State of Bombay v. Parshottam Kanaiyalal (supra) pointed out that in giving written consent the local authority or the person authorised by the local authority must apply its or his mind and exercise a discretion. They say (para 13):-THE rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore provides that the complaint should be filed either by a named or specified authority or with the written consent of such authority. To read by implication that before granting a written consent the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable. THEY point out that under the section (as it then stood) prosecution could be instituted (1) by the State Government (2) by a local authority (3) by a person authorised in that behalf by the State Government or (4) by a person similarly authorised by a local authority and further a prosecution could also be instituted with the consent of any of the four authorities and observe that:- in the case of these four categories the authority or person filing the complaint has itself or himself to considerthe reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is called for. Turning next to the other class the relevant words are no prosecution. . . . . . . shall be instituted except. . . . . . with the written consent of. . . . . . . . . Here the emphasis is on the consent of the filing of the prosecution not to the person filing it. The preliminary examination of the facts to ascertain the desirability and propriety of the prosecution is in this last case the responsibility of the person or authority giving the written consent not of the person who figures as the complainant. Therefore the exercise of discretion by the authority instituting a prosecution or giving a written consent to the institution of the prosecution is having regard to the scheme of the Act implied indeed required. Now prima facie a discretion conferred on a specified authority is intended to be exercised by that authority and no other. Therefore the exercise of discretion by the authority instituting a prosecution or giving a written consent to the institution of the prosecution is having regard to the scheme of the Act implied indeed required. Now prima facie a discretion conferred on a specified authority is intended to be exercised by that authority and no other. In Barium Chemicals Ltd. v. Company Law Board (A. I. R. 1967 S. C. 295) His Lordship Bachawat J. observes:-PRIMA facie a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indication in the language scope or object of the statute. The construction that would best achieved the purpose and object of the statute should be adopted. In the matter of the discretion to be exercised before instituting a prosecution or giving written consent to the institution there is no contrary indication in the language scope or object of the Adulteration Act and therefore the discretion in these matters has to be exercised by the Corporation itself unless it can be held that the Corporation is in law incapable of exercising it-a point to be considered later. What applies to the institution of a prosecution by a local authority or with its consent equally applies to the institution by a person authorised in this behalf by it. It may he that in such a case the desirability of a prosecution in a particular case has to be determined by the person authorised but there is nevertheless an exercise of discretion on the part of the local authority in authorising a person so as to ensure that that person will not undertake frivolous or harassing prosecutions. The person authorised must have the confidence of the local authority for that purpose and that discretion of choosing the right person must also on the principle just enunciated be exercised by the local authority itself unless it is incapable of exercising it. There is no provision for delegation of that power and the nature of the power and the context indicate that there is an implied prohibition against that power being exercised by any other person or body. The general principle as set out in Crawfords Statutory Construction Art. 195 (page 335) is: -. . . There is no provision for delegation of that power and the nature of the power and the context indicate that there is an implied prohibition against that power being exercised by any other person or body. The general principle as set out in Crawfords Statutory Construction Art. 195 (page 335) is: -. . . if the statute directs that certain acts shall be done in a specified manner or by certain persons their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited. In this case the person named is the Municipal Corporation and therefore the Corporation itself must take a decision under sec. 20 (1) of the Adulteration Act and a decision by any other person is impliedly prohibited. In this case the Corporation has in accordance with the terms of sec. 20 (1) taken the decision to authorise a particular person and if the reading of the scheme of the Adulteration Act as above analysed is correct and the principles to be applied to the construction of sec. 20 (1) in the setting of that Act are those just mentioned than prima facie the action taken by the Corporation in this case would be in accordance with law. ( 12 ) THE submission on behalf of the appellant is that the manner of exercise of power under sec. 20 (1) of the Adulteration Act by the Corporation must in the absence of any specific provision in or under the Adulteration Act be governed by the provisions of the law under which that body was constituted. That proposition is sound. It is then urged that the Corporation Act under which the Corporation here is constituted does not contemplate that action of the nature contemplated by sec. 20 (1) of the Adulteration Act can be taken by the Corporation acting as a body but on the other hand makes it clear by the provisions contained in secs. 67 (3) and 68 (1) that the Commissioner shall act for the Corporation and in so far as these provisions provided that the Commissioner shall act for the Corporation they must be held to impliedly provide that the Corporation shall not act. This it is submitted is not inconsistent with the scheme of the Adulteration Act or the provisions of sec. This it is submitted is not inconsistent with the scheme of the Adulteration Act or the provisions of sec. 20 because all you have to do is to substitute the Commissioner for the Corporation. This substitution it is said is required to be made having regard to sec. 67 (3) or 68 (1) of the Corporation Act. Before considering the scope and contents of sec. 67 (3) and 68 (1) and how far the provisions of these sections sustain the argument advanced it will be proper to analyse some of the provisions of the Corporation Act for ascertaining firstly what are the different types of functions allotted to the several municipal authorities and secondly whether in so far as the Corporation is concerned which of those functions could or could not be discharged by it as a body independently of the Commissioner. ( 13 ) AN analysis of the provisions of the Corporation Act shows that each of the municipal authorities is entrusted under that Act with diverse functions administrative legislative and quasi-judicial. A few of them may be mentioned. The Corporation is empowered to appoint certain officers under sub-secs. (1) and (2) of sec. 45. It has a right to call for reports under. secs. 70 and 71. It has power to acquire property under sec. 76 and to borrow money under sec. 109. These are obviously administrative functions. The Corporation is empowered to make rules and bylaws under secs. 454 457 and 458. This is a legislative function. It has power to approve the budget under sec. 96 and to determine the rates of taxation under sec. 99. These are partly administrative and partly legislative functions. It has power to impose penalties upon certain municipal servants and officers under sec. 56. This is a quasi-judicial function. Similarly the Commissioner has these different kinds of functions. He has for example power to appoint certain officers under sec. 53 (2) power of levilling metalling paving and repairing etc. streets under sec. 203 power of prescribing street line under sec. 210 (1) (a ). These would be administrative functions. He has power to make standing orders under sec. 466 which would be in the nature of legislative function. He has the power to impose penalties on certain class of municipal servants under sec. 56 the power to enquire into and to determine the right to and amount of compensation under sec. These would be administrative functions. He has power to make standing orders under sec. 466 which would be in the nature of legislative function. He has the power to impose penalties on certain class of municipal servants under sec. 56 the power to enquire into and to determine the right to and amount of compensation under sec. 216 and secs. 389 and 390. These would be quasi judicial functions. Similar diverse functions are prescribed for the Standing Committee In fact the provisions of the Corporation Act and the rules which are included in Schedule A to the Corporation Act are very detailed in the enumeration of the various functions of the various Municipal authorities. It is not unreasonable to infer that the authority which is assigned a particular function is expected to attend to its performance unless the provisions in the Act and the rules indicate another authority as the authority to perform the functions on behalf of the authority which is assigned the functions. This indeed follows not only from the details of the functions but also from the language of sec. 4 (1) and sec. 67 (1 ). Indeed some of the functions which are prescribed for the Corporation are such that the Corporation itself must attend to them e. g. the administrative functions of creation of certain posts or of appointments to certain posts and of borrowing the legislative function of rule making and the quasi-judicial function of imposing penalty. The very nature of these functions is such that the Corporation is expected to carry them out. If it is so expected it is but reasonable that machinery is provided to the Corporation to attend to the carrying out of those functions. That machinery is one indicated by sec. 43 (1) and by the relevant rules as to meetings of the Corporation. The meetings of the Corporation are meant to transact the business before the Corporation and obviously those functions which the Corporation is required to attend to would come before the meetings as items of business. The expression business as used in sec. 36 (k) of the Bombay Municipal Corporation Act 1888 has been interpreted in Bombay Municipal Corporation v. Ramchandra (61 Bom. L. R. 1129) where at page 1134 Their Lordships say The expression business will include only that business which can be said to relate to municipal administration or municipal Government of Greater Bombay. The expression business as used in sec. 36 (k) of the Bombay Municipal Corporation Act 1888 has been interpreted in Bombay Municipal Corporation v. Ramchandra (61 Bom. L. R. 1129) where at page 1134 Their Lordships say The expression business will include only that business which can be said to relate to municipal administration or municipal Government of Greater Bombay. The same reasoning would apply here and so long as the matter relates to the Municipal administration which it would be if it is in the discharge of the functions allotted to the Corporation it would come as a business before the meeting of the Corporation. Now a function under sec. 20 (1) of the Adulteration Act is no doubt not a function allotted under the Corporation Act to the Corporation but it being a statutory function imposed on the Corporation it becomes the business of the Corporation much more so when that statutory function relates to the promotion of public health for which under sec. 66 (42) of the Corporation Act the Corporation may in its discretion provide from time to time. There is therefore no difficulty in holding that this function could come before the Corporation as an item of business at its general meeting and the Corporation can transact that business by a resolution passed at a general meeting. ( 14 ) IT is now appropriate to examine the argument that secs. 67 (3) and 68 of the Corporation Act require that the power of the Corporation in this case namely to take action under sec. 20 (1) of the Adulteration Act for giving written consent to the institution of a prosecution or authorising a person in that behalf must be exercised by the Commissioner and none else and cannot be exercised even by the Corporation. Sec. 68 (1) may be examined first because it is wider in scope and it specifically empowers the Commissioner to exercise powers and perform duties and functions conferred or imposed upon or vested in the Corporation by any other law for the time being in force. We need consider only the question of powers conferred and not of duties imposed or functions vested because it is-agreed that sec. 20 (1) of the Adulteration Act confers a power. We need consider only the question of powers conferred and not of duties imposed or functions vested because it is-agreed that sec. 20 (1) of the Adulteration Act confers a power. In support of the argument that the powers under other laws in force shall be exercised only by the Commissioner and shall not be exercised by the Corporation reliance is placed on the language of the sub-sec. (1) and particularly on the use of the word shall as read in the light of the principle enunciated in the quotation from Crawford on Statutory Construction to which reference has been made earlier that if the statute directs that certain acts shall be done in a specified manner or by certain persons their performance in any other manner then that specified or by any other person than one of those named is impliedly prohibited. Ultimately therefore the question is what is the scope of sec. 68 (1) and what is its effect on sub-sec. (1) of sec. 20 of the Adulteration Act. The assumption underlying sec. 68 (1) is that the powers are vested in the Corporation. To say the Commissioner alone can exercise the powers is tantamount to divesting the Corporation of the powers but there is nothing in the language of that provision to show that the Corporation is divested of those powers. In fact the language indicates that the Corporation continues to control the exercise of those powers even when they are exercised by the Commissioner because sub-sec. (1) of sec. 68 empowers the Corporation to place restrictions limitations and conditions on the exercise. To read into the expression shall an implied prohibition against the Corporations exercise of the powers vested in it would be inconsistent with the context. Mr. Vakil for the Corporation says that what is intended by the user of that expression is to define one of the obligations of the Commissioner under the Corporation Act so as to enable him to incur the necessary expenditure in the discharge of that obligation that is to say the Commissioner is under a duty to exercise subject to the will of the Corporation and also subject to the provisions of the law under which the powers are conferred. It is not in this case necessary to finally pronounce on this aspect because even if the expression shall is capable of the construction placed on it on behalf of the appellant that would be so only in such cases as are not covered by the qualifying clause subject to the provisions of such law. It is obvious that the availability of the power to the Commissioner under the section is subject to the provisions of the other law which confers the power. Mr. Vakil argues that this expression means that the other law enables the Commissioner to exercise the power and Mr. Trivedi states that the other law must be looked into to see whether and to what extent there is a restriction on the availability of power. Two decisions of the Supreme Court have been brought to my notice. In Balakrishna Chetty and Anr v. The State of Madras (A. I. R. 1961 S. C. 1188) sec. 5 of the Madras General Sales Tax Act 1959 came up for construction. That section exempted from taxation sale of bullion specie cotton and other articles mentioned therein subject to such restrictions and conditions as may be prescribed including the conditions as to licenses and licence fees. It was argued before the Supreme Court that once the licence is taken exemption is available irrespective of the question whether the conditions of the licence are observed. They said (para 6):-ON a proper interpretation of the section it only means that the exemption under the licence is conditional upon the observance of the conditions prescribed and upon the restrictions which are imposed by and under the Act whether in the rules or in the licence itself. The correct meaning according to them of the words subject to was conditional upon. In Gujarat University v. Shri Krishna (A. I. R. 1963 S. C. 703) Entry 11 of List II of the VIIth Schedule to the Constitution came up for consideration. Under Item No. 11 of List II of the Seventh Schedule to the Constitution the State Legislature has power to legislate in respect of education including Universities subject to the provisions of items 63 64 65 and 66 of List I and 25 of List II. Under Item No. 11 of List II of the Seventh Schedule to the Constitution the State Legislature has power to legislate in respect of education including Universities subject to the provisions of items 63 64 65 and 66 of List I and 25 of List II. Their Lordships said (para 23) Use of the expression subject to in Item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. It was further observed that to the extent of the restriction imposed by the use of the expression subject to in an entry in list II the power is taken away from the State Legislature or to that extent the power is deemed to be restricted. Therefore in considering whether and how far the Commissioner can under sec. 68 (1) exercise the powers conferred on the Corporation it will have to be considered whether and to what extent the provisions of the other law here the Adulteration Act restrict it. Those provisions have already been analysed and if that analysis is correct the power to decide what person should be authorised under sec. 20 (1) of the Adulteration Act. that being the only point in issue here cannot be said to be available for exercise to the Commissioner under sec. 68 (1) of the Corporation Act. It is true that the provisions of the Adulteration Act do not expressly impose restriction on the exercise of the power under sec. 20 (1) by authorities other than those specified but the scope of the expression subject to is not limited to what is expressly provided but extends to the necessary intendment of the law as is clear from the decision of the Supreme Court in the Gujarat University case (supra ). If it were otherwise some of the powers conferred on the Corporation under other laws which by their very nature are to be exercised by the Corporation itself e. g. the power to make regulations under sec. 17 (3) of the Bombay Primary Education Act 1947 will have to be exercised by the Commissioner. Having regard to the provisions of the Adulteration Act therefore the power claimed is not available to the Commissioner. ( 15 ) THAT takes me to sec. 67 (3 ). 17 (3) of the Bombay Primary Education Act 1947 will have to be exercised by the Commissioner. Having regard to the provisions of the Adulteration Act therefore the power claimed is not available to the Commissioner. ( 15 ) THAT takes me to sec. 67 (3 ). What vests in the Commissioner under that provision is the executive power of the Corporation for the purpose of carrying out the provisions of the Corporation Act or of any other Act for the time being in force which imposes any duty or confers any power on the Corporation. Therefore if a power is conferred on the Corporation by any other law for the time being in force here sec. 20 (1) of the Adulteration Act then for the purpose of carrying out the provisions of the Adulteration Act the executive power vests in the Commissioner. This vesting is however subject to all restrictions limitations and conditions imposed by any such law. The question is what is the scope and ambit of the expression executive power. Does it include the power to decide as contended by Mr. Desai or it is only the power of implementation as contended by Mr. Vakil. The expression executive power is defined in Blacks Law Dictionary as a duty appertaining to the execution of the laws as they exist. Therefore executive power means power to execute or carry into effect. But Mr. Desai says that it has also a wider meaning and he invited my attention to the observations of the Privy Council in King Emperor v. Sibnath Banerjee and others (72 Indian Appeals 241) where at page 264 their Lordships made the following observations with reference to the term executive in Government of India Act 1935 the provisions of Chapter IT of Part III of the Act of 1935 as to the Provincial Executive and its executive authority use the term executive in the broader sense as including both a decision as to action and the carrying out of such decision. There is no doubt therefore that in the broader sense executive power covers both the taking of the decision and action for carrying out such decision but whether the expression has been used in this broader sense or in the sense earlier mentioned must depend on the context. There is no doubt therefore that in the broader sense executive power covers both the taking of the decision and action for carrying out such decision but whether the expression has been used in this broader sense or in the sense earlier mentioned must depend on the context. Their Lordships of the Privy Council were dealing with a Constitution Act in which the he was a well defined division between three different authorities of executive powers legislative powers and judicial powers respectively and it was with reference to that division that they held that the executive authority would include both a decision as to action and the carrying out of such decision. To consider the scope of the executive power under sec. 67 (3) we may first consider the provisions of the Corporation Act and then the provisions of some of the other laws. ( 16 ) THE Corporation Act has a pattern entirely different from the Government of India Act 1935 which the Privy Council was considering as is clear from the brief analysis earlier made. Besides some of the executive functions of the Corporation are such e. g. decision to borrow decision to make appointments decision to approve the budget calling of the reports from Committees and from the Commissioner that the decision as to action must be by the Corporation. Indeed even in respect of other functions the division of functions under the Corporation Act between the different municipal authorities is so detailed and specific that if the expression executive power was intended to cover every action of the Corporation on the executive side such detailed provision would have been unnecessary. To illustrate one of the obligatory functions of the Corporation under clause (18) of sec. 63 is construction maintenance alteration and improvement of public streets. Chapter XIV of the Act makes detailed provision in that regard. Under sec. 202 the streets vest in the Corporation. Sec. 203 (1) requires the Commissioner to level metal or pave channel alter and repair the streets as occasion shall require provided that no widening or extension or other improvement of a public street as is set out in the proviso to sub-sec. (1) of that section shall be made unless and until such undertaking has been authorised by the Corporation. Similarly under sub-sec. (1) of that section shall be made unless and until such undertaking has been authorised by the Corporation. Similarly under sub-sec. (2) of that section for the closing of a public street in full or part by the Commissioner sanction of the Corporation is necessary and indeed the Corporation cannot give sanction unless it has invited and heard objections. Sec. 205 empowers the Commissioner to lay out and make new public street etc. when authorised by the Corporation in this behalf. Sec. 206 empowers the Corporation to determine the minimum width of different classes of public streets. In respect of this decision about width of streets the Commissioner does not come into the picture. The functions laid down in sec. 207 and 208 in respect of alteration of a sub-way prohibition of vehicular traffic in a public street are to be discharged by the Commissioner but when authorised by the Corporation in that behalf or with the sanction of the Corporation as the case may be. Sec. 209 provides for acquisition of premises for improvement of public streets and this is to be done by the Commissioner. The right to prescribe a line on one or both sides of any public street lies with the Commissioner under sec. 210 and so also the right to order setting back buildings to the regular line of the street under secs. 211 and 212. Secs. 213 214 and 215 provide for rights incidental to the prescribing of the line on one or both sides of a public street and these are with the Commissioner. Sec. 216 which has been earlier referred to is concerned with compensation to be paid. It will be noticed that there is a detailed division of the exercise of executive power in respect of an obligatory function of the Corporation. The same is true of most of the other obligatory functions under sec. 63. Wherever a restriction limitation or condition is intended it is clearly provided for. In the circumstances where the function of decision is specifically entrusted to the Corporation as in sec. 206 it will not be unreasonable to infer that the Corporation itself was intended to discharge it. 63. Wherever a restriction limitation or condition is intended it is clearly provided for. In the circumstances where the function of decision is specifically entrusted to the Corporation as in sec. 206 it will not be unreasonable to infer that the Corporation itself was intended to discharge it. If the executive power vested in the Commissioner were to include a power of decision as to action was it necessary to make a detailed and precise division of functions in cases where no restrictions limitations and conditions were to be provided for. It is not unreasonable to conclude having regard to the scheme that in cases where the Corporation is specified as the functioning authority and no provision is made as to the manner in which the executive function so entrusted is to be discharged if a power of decision as to action over and above a power to carry out a decision is to vest in the Commissioner it must clearly appear from the context. Till the context so requires the executive power will not cover the power of decision as to action. This conclusion is fortified by the provisions of sec. 4 (1) and 67 and (2 ). If except as otherwise expressly provided the municipal Government of the city vests in the Corporation and the respective functions of the several municipal authorities who are charged with carrying out the provisions of the Act are those as are specifically provided by or under the Act then there is no scope for reading into the expression executive power a meaning which would virtually vest the municipal administration in the Commissioner. As earlier pointed out the very nature of some of the executive functions would negative such a construction. ( 17 ) IF that is the true scope of the expression executive power with reference to carrying out of the provisions of the Corporation Act there is no sufficient reason why the same considerations should not apply to the exercise of executive power for carrying out the provisions of any other Act for the time being in force which imposes any duty or confers any power on the Corporation. Mr. Vakil has sought to fortify this conclusion by reference to the relevant provisions of some of the other laws. Mr. Vakil has sought to fortify this conclusion by reference to the relevant provisions of some of the other laws. He invited my attention to the Bombay Primary Education Act 1947 the Bombay Shops and Establishments Act 1948 and the Bombay Town Planning Act 1954 The Corporation is an authorised Municipality as defined in sec. 2 (6) of the Bombay Primary Education Act read with sec. 16 of that Act. Sec. 17 (1) lays down the duties and functions of authorised municipalities. One of these functions is to sanction with or without variation the budget of the municipal school board. Mr. Vakil argued and rightly that this is on executive function but it could hardly be argued that the whole of it vests in the Corporation under sec. 67 (3) of the Corporation Act. It is only the implementation of the decision of the Corporation of sanctioning budget that would vest in the Commissioner. The same considerations would apply in respect of sec. 26 (2) under which the authorised municipality when called upon by the State Government has to submit a scheme to provide compulsory primary education in such area and in the case of children of such ages and upto such standard and within such period as the State Government may specify. It would not be possible to substitute the word Commissioner for the Authorised Municipality in this case. In the Shops and Establishments Act 1948 sec. 2 defines local authority and a Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act 1949 falls within the definition. Chapter IX of that Act which is concerned with enforcement of the provisions of that Act lays by sec. 48 upon every local authority the duty to enforce the provisions of law. Sec. 46 in that Chapter deals with the contingency where a local authority makes default in the performance of any duty imposed by or under the Act. In such cases the State Government may appoint some person to perform it and may direct that the expense of performing it with a reasonable remuneration to the person appointed to perform it shall be paid forthwith by the local authority. In such cases the State Government may appoint some person to perform it and may direct that the expense of performing it with a reasonable remuneration to the person appointed to perform it shall be paid forthwith by the local authority. Sec. 48 empowers the local authority to appoint a sufficient number of persons with the prescribed qualifications as Inspectors for the area subject to its jurisdiction as it may deem fit for the purpose of carrying out the provisions of the Act. Having regard to the nature of these provisions it is obvious that what is required to be done under sec. 48 has to be done by the Corporation and not by the Commissioner. It is not necessary to go to the provisions of the Town Planning Act which is the third Act the provisions of which were analysed before me to support the contention that the executive power cannot include the power to decide where that power is expressly or by necessary implication vested in the Corporation but reference may be made to sec. 86 of that Act which by expressly providing that certain specified powers and functions which are executive in character in a limited sense of carrying out a decision be exercised and performed by the Commissioner indicates that executive power and functions which call for a decision as to action such as those under secs. 3 and 4 were not intended to be exercised or performed by the Commissioner. ( 18 ) IT will now be appropriate to refer to some of the authorities on which reliance has been placed on behalf of the appellant in support of his submissions. In Ballabhdas Agarwal v. J. C. Chakravarti (A. I. R 1960 S. C. 576) which was the first case relied upon the Food Inspector of the Howrah Municipality had with the sanction of the Health Officer of that Municipality instituted a prosecution for selling adulterated butter which was an offence under the Calcutta Municipal Act 1923 by which the Howrah Municipal Commissioners were governed. Under the said Municipal Act sec. 12 the Commissioners could delegate their powers to the Chairman and the Chairman could in turn delegate the power to the Vice Chairman or any municipal officer. Under the said Municipal Act sec. 12 the Commissioners could delegate their powers to the Chairman and the Chairman could in turn delegate the power to the Vice Chairman or any municipal officer. There was such a delegation to the Chairman and then by him to the Health Officer but at the time when the prosecution in that case was instituted. the delegation had come to an end and the question raised was whether that being so the Food Inspector as an ordinary citizen could in his own right institute a prosecution. It was urged before Their Lordships that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Their Lordships examined the scheme of the Act and came to the conclusion that sec. 537 which provided for such prosecution would be unnecessary having regard to the whole scheme if any person could institute a prosecution outside the provisions of the Act. They said All these provisions can have one meaning only viz. that the machinery provided in the Act must be followed in enforcing these provisions. Later on they again say:-IT is difficult to understand the necessity of a provision like sec. 537 unless the intention was to confer a power on the Municipality which power must be exercised in accordance with the provisions of the Act and not otherwise. It is not clear how this decision supports the submission made for the appellant in respect of secs. 67 (3) and 68 (1 ). Their Lordships were considering the scope of a provision in relation to the enforcement of the very Act in which the provision occurred. If such an Act is a complete code the machinery provided by it must be followed enforcing its provisions. ( 19 ) THE next decision to which my attention was invited in H. S. Bikby v. New Delhi Municipality (A. I. R. 1962 S. C. 554 ). That was a case where the question was whether an agreement between the Municipality and a citizen which has not been formalised in accordance with the provisions of the relevant municipal Act was binding on the municipality. the Act with which the Court was concerned was the Punjab Municipal Act 1911 as applied to New Delhi. That was a case where the question was whether an agreement between the Municipality and a citizen which has not been formalised in accordance with the provisions of the relevant municipal Act was binding on the municipality. the Act with which the Court was concerned was the Punjab Municipal Act 1911 as applied to New Delhi. The question was whether certain persons in occupation of municipal property and paying what was termed as rent to the Municipality could make an application to the Court under the Delhi and Ajmer Rent Control Act 1952 for fixation of standard rent. The Municipality contended that the Court was not competent to entertain such an application unless there was a relationship of landlord and tenant. That submission was accepted by the Supreme Court. It was next contended that there was no such relationship between the Municipality and the applicants because for such a relationship to be brought into existence between the municipality and the tenant the Municipal Act provided for certain formalities in sec. 47 which were absent in that case. The Supreme Court accepted that submission pointing out that sec. 47 made it obligatory on the Municipality to enter into contracts or to transfer property in the manner laid down therein and under the very terms of sub-sec. (2) of that section no contract or transfer of the description mentioned in this section executed otherwise than in conformity with the provisions of this section shall be binding on the Committee. It will be apparent that this decision has no application to the facts of the present case. The decision not only turns on the terms of sec. 47 but it is also concerned with the exercise of the power conferred by the Municipal Act and not by any other Act Such a power must be exercised in accordance with the provisions of the Municipal Act. ( 20 ) TWO more decisions both of the Rajasthan High Court bearing on the enforcement by a Municipality of the provisions of the Adulteration Act have been relied on. The first decision is:- Ratanlal v. State (A. I. R. 1964 Rajasthan 123) and the second:- Badri v. State (A. I. R. 1966 Rajasthan 203 The first is by a Division Bench and the second is by a Single Judge. In the first case the accused was convicted by the trial Court under sec. The first decision is:- Ratanlal v. State (A. I. R. 1964 Rajasthan 123) and the second:- Badri v. State (A. I. R. 1966 Rajasthan 203 The first is by a Division Bench and the second is by a Single Judge. In the first case the accused was convicted by the trial Court under sec. 16 (1) (a) of the Adulteration Act for selling adulterated Ghee and the conviction was confirmed in appeal by the Sessions Court. The complaint against him had been filed after obtaining the permission of the Vice Chairman of the Municipality who was acting as Chairman in his absence. In the revision before the High Court the point raised on behalf of the accused was that a complaint under the written consent of the Vice Chairman was not competent. Their Lordships first referred to sec. 7 of the Rajasthan Municipalities Act 1959 by which the Municipality was governed. That section which is set out in full in the second case viz. Badri v. State relates to the functions of the Chairman. It begins with the words It shall be the duty of the Chairman of a Board and then follow six clauses of which clause (d) reads :-SUBJECT to the provision of sec. 78 and of the rules for the time being in force to perform such other executive functions as may be performed by or on behalf of the board over which he presides. Under sec. 69 the Vice Chairman could exercise the powers and perform the duties of the Chairman in the absence of the Chairman. Therefore the short question was whether giving of written consent by the Vice Chairman who was acting as a Chairman would be an executive function as contemplated by sec. 67 (d) and whether any limitation on the performance of that function was placed by sec. 78. Sec. 78 provided that the powers duties and functions of the Board may be delegated to the various officers mentioned therein and two of them are the Chairman and the Vice Chairman. It was argued before the High Court that the expression subject to the provisions of sec. 78 in sec. 67 (d) should be construed to mean that unless there is express delegation of functions under sec. 78 the Chairman cannot perform any executive functions by virtue of sec. It was argued before the High Court that the expression subject to the provisions of sec. 78 in sec. 67 (d) should be construed to mean that unless there is express delegation of functions under sec. 78 the Chairman cannot perform any executive functions by virtue of sec. 67 (d) The Court held that the Chairman could of course perform any of the duties or functions which may by delegated to him but even in the absence of any specific delegation so far as the executive functions are concerned he has been given the power to perform them under sec. 67 (d ). The decision on this point has no relevance to the present case. Their Lordships then proceeded to hold that the granting or withholding of written consent under sec. 20 (1) of the Adulteration Act is no more than the discharge of an executive function of a local authority and therefore the Chairman was competent to give a written consent. Then dealing with the argument that the Chairman can only perform such executive functions as are mentioned in the Rajasthan Municipalities Act and not those under any other law and that in such a case either the local authority must itself act or it must delegate its power to the Chairman or some other person expressly the Court said:-IN our humble opinion the local authority shall be deemed to be acting itself if it is acting in the manner laid down under any law under which it is constituted. In the instant case Baren Municipal Board was constituted under the Rajasthan Municipalities Act 1959 and it could not through its Chairman by virtue of sec. 67 (d) in granting written consent for prosecution under sec. 20 of the Prevention of Food Adulteration Act. Reliance is placed by Mr. Thakore on this passage. In the other Rajasthan decision namely Badri v. State (supra) also the Court was concerned with the provisions of the Rajasthan Municipalities Act 1959 under which the Municipal Council of Jaipur with which the case was concerned was constituted. There the-Municipal Council of Jaipur had by a Resolution delegated to the Chairman of that Council power to sanction prosecution under sec. 20 of the Adulteration Act. The learned Judge referred to this Resolution and stated that the Resolution not only does not restrict the Chairmans powers under sec. There the-Municipal Council of Jaipur had by a Resolution delegated to the Chairman of that Council power to sanction prosecution under sec. 20 of the Adulteration Act. The learned Judge referred to this Resolution and stated that the Resolution not only does not restrict the Chairmans powers under sec. 67 (d) of the Rajasthan Municipalities Act but advances them and went on to say that the Chairman did not indeed need any delegation of this power in view of the provisions of sec. 67 (d) for the learned Judge observed When the Chairman is exercising his statutory powers in accordance with sec. 67 of the Rajasthan Municipalities Act for and on behalf of the Municipal Council over which he presides he is functioning as the Municipal Council or local authority itself. The learned Judge does not mention the earlier Rajasthan decision in Ratanlal v. State but has substantially taken the same view on this point. On the same reasoning it is argued on behalf of the appellant before me that when the Commissioner is empowered to act as the Corporation and acts in the manner laid down by the Municipal law he is the Corporation. That no doubt would be correct but the cases in which and the extent to which the Chairman could act as a local authority or the Co mmissioner could act as the Corporation would depend upon the relevant provisions of the Municipal Act which confer on him that power and upon the provisions of the other law under which the power for carrying out the provisions of that law are conferred on the local authority. As to this the provisions of the Corporation Act are different from sec. 67 (d) of the Rajasthan Municipalities Act and the position of the Chairman of the Municipality under that Act vis--vis the Municipality is different from the position of the Commissioner under the Corporation Act vis--vis the Corporation. Besides the implications of sec. 20 (1) of the Adulteration Act in respect of conferment of power under it do not appear to have been raised or argued before the Rajasthan High Court. These two decisions therefore are not of assistance in the construction of secs. 67 (3) and 68 (1) of the Corporation Act. . . . . . . . . . . . . . . . . . . . . . . These two decisions therefore are not of assistance in the construction of secs. 67 (3) and 68 (1) of the Corporation Act. . . . . . . . . . . . . . . . . . . . . . . ( 21 ) THE third and fourth submissions may be considered together as the arguments advanced are similar. Sec. 8 of the Adulteration Act empowers the Central Government or the State Government to appoint by notification in the official gazette such persons as it thinks fit having the prescribed qualifications to Public Analysts for such local areas as may be assigned to it. Sec. 9 empowers the Central or the State Government by notification in the official gazette to appoint such persons as it thinks fit having the prescribed qualifications to be Food Inspectors for such areas as may be assigned to them. The prescribed qualifications in respect of the Public Analyst are set out in rule 6 and the prescribed qualifications in respect of the Food Inspector are set out in rule 8. Academic qualifications are laid down. However persons not having those academic qualifications are also eligible provided the other qualifications relating to training and experience for the required period are satisfied. Sec. 10 empowers the Food Inspector to take samples to enter and inspect any place where an article of food is manufactured stored or exposed for sale to seize and carry away certain articles of food and even to break open packages etc. Sec. 11 (1) requires the Food Inspector to send one of the samples to the Public Analyst for analysis and sec. 13 makes the report of the Public Analyst admissible in evidence of facts stated therein. Now the argument is that having regard to the considerable powers conferred on the Food Inspector and the admissibility of the report of the Public Analyst and the possible serious consequences on the accused consequent on the exercise of those powers by the Food Inspector and the Public Analyst respectively it is of the utmost importance that the person who acts as the Food Inspector or the Public Analyst is really appointed as such and is really possessed of the prescribed qualifications because then only the taking of the sample by the Food Inspector and the analysis of the sample by the Public Analyst has any legal validity. It is argued that for proving that legal validity the prosecution must prove by positive evidence that the Food Inspector and the Public Analyst were duly appointed and duly qualified. The reply on behalf of the Corporation and by the learned Assistant Government Pleader is that neither the appointment nor the possession of the prescribed qualifications was challenged in the lower Court and therefore no further proof was necessary than what was already adduced. It is clear that both these are questions of fact. The appointment of these officers and their qualifications have nothing to do with the ingredients of the offence. The evidence adduced by the prosecution in the case was on the basis that the Food Inspector and the Public Analyst were duly appointed and qualified. In the complaint the complainant has described himself as Food Inspector The complaint was put up by the complainant before the Medical Officer of Health for sanction and has been sanctioned in writing by the Medical Officer of Health. While taking the sample from the accused-appellant the complainant gave an intimation to him as the Food Inspector obtained receipt from him of one of the samples as such Food Inspector and these documents which were taken and issued in accordance with the rules have been produced in the Court. He forwarded to the Public Analyst a sample with the memorandum in which he has described himself as the Food Inspector. The memorandum is written in accordance with the rules. He deposed that Dr. P. G. Vyas is the Public Analyst. Dr. Vyas had authorised Vaghela to receive and examine samples. That authorisation has also been produced. Therein he described himself as the Public Analyst. Then the report of the Public Analyst is under the signature of Dr. Vyas and that report states that he has been duly appointed under the provisions of the Adulteration Act. The authorisation and the report are documents made in accordance with the rules. No part of this evidence in so far as it shows that Mehta was the Food Inspector and Dr. Vyas was the Public Analyst was ever challenged. Therefore these facts atleast establish that these two officers occupied the offices of the Food Inspector and Public Analyst respectively for the area concerned and openly discharge their duties pertaining to these offices. No part of this evidence in so far as it shows that Mehta was the Food Inspector and Dr. Vyas was the Public Analyst was ever challenged. Therefore these facts atleast establish that these two officers occupied the offices of the Food Inspector and Public Analyst respectively for the area concerned and openly discharge their duties pertaining to these offices. It would then be permissible to presume that the Food Inspector and the Public Analyst in this case were duly appointed to their offices. It would also then be permissible to presume that they had the necessary qualifications for the appointment. In Corpus Juris Secundum Volume 67 Article 36 it has been stated (at page 189) As a general rule the fact that one has acted as an officer and has generally been recognized as such will create the presumption of a valid appointment and under Article 37 at page 191 it is stated the law presumes that one who is in actual possession of an office has duly qualified. Under these circumstances the prosecution was not in the absence of any specific challenge required to adduced any further proof. Such presumption could no doubt be overcome by evidence to the contrary. But there is as I earlier stated no challenge much less any evidence to the contrary. The third and fourth submissions must therefore be rejected. ( 22 ) IN respect of the next submission which relates to the observance of the formalities laid down by the rules two arguments have been advanced. One is that the formalities laid down must be observed strictly that is to say to the letter of the law and the other is that the fact of such observance must be established by positive evidence whether or not there is contention of non-observance raised on behalf of the accused. To appreciate the submission it will be appropriate to have a look at the relevant provisions of the Act and the relevant rules. These provisions fall into four broad stages namely (1) the taking of the sample (2) the dividing packing and sealing of the sample including addition of preservative (3) the sending of one of the samples to the Public Analyst and (4) the analysis by the Public Analyst of the sample sent to him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 23 ) THIS in brief is the scheme and the content of the rules. Now it is not the contention before me that in this case or in any of the other cases the provisions in respect of any of the four stages have not been complied with. There was no contention made in the lower Court. The argument is that whether or not there was any such contention the prosecution must establish by leading positive evidence that these provisions were wholly complied with and that this is necessary because the Court has to be satisfied in that regard before any weight could be attached to the report of the Public Analyst or to the certificate of the Director of Central Food Laboratory and because the rules are mandatory. Mr. Thakore says that the Food Inspector and the Public Analyst must depend in Court not merely that the rules were complied with but what actual steps they had taken to comply with these rules. The Food Inspector for example must say that he had taken dry bottles that after dividing he added in case of milk 40 percent of formaldehyde in aqueous solution in the proportion of 0. 1 ml. (two drops) for 25 ml. or 25 grams that he had put the stopper so as to securely fasten the container to prevent leakage that he had labeled it and the label bore the details set out in rule 15 that he had used fairly strong thick paper and neatly folded it in and affixed it by means of gum or other adhesive and that he had sealed it firstly by securing the cover by use of strong twine and thread and then scaled it by putting at four places distinct and clear impressions one of which was at the top of the packet and the knots of twine or thread were covered by the seat. He should also state that he sent to the Public Analyst separately by registered post or delivered to him a copy of the memorandum or specimen signature. He should also state that he sent to the Public Analyst separately by registered post or delivered to him a copy of the memorandum or specimen signature. Similarly according to him the Public Analyst must come and depose that he or a person authorised by him had compared the seals on the container and the outer cover with specimen sent separately and that he had caused the sample to be analysed. ( 24 ) THE learned Assistant Government Pleader relies on sec. 114 of the Evidence Act and in my opinion rightly. The Food Inspector and the Public Analyst are officers of some status. They are invested with certain powers and charged with certain duties under the Adulteration Act and the rules. It would not be unreasonable to assume that they would exercise those powers and discharge those duties in accordance with these provisions. In so far as the exercise of the power and the discharge of this duty do not bear on the ingredients of the offence a presumption in favour of compliance with the law is permissible under sec. 114 illustration (e) of the Evidence Act provided the broad facts which would justify the presumption to be raised are made out. For example if a sample taken for analysis is to amount to a sale it must be taken in accordance with the provisions of sec. 11 (1) and the observance of this provision cannot be presumed. But if after a sample has been taken and the Food Inspector deposes as to his having divided it into three parts and then marked sealed and fastened each part the fact that this was done in such a manner as to comply with the rules in that behalf could be reasonably presumed in the absence of any challenge on that point. As pointed out in Purshottam v. Emperor (A. I. R. 1946 Bom. 492) the presumption under sec. 114 illustration (e) is that of the regularity of the official acts whether judicial or executive and not that of acts themselves being done. If for instance a notification is issued under the powers given by law there is a presumption that it was regularly published and promulgated in the manner in which it was required to be done. But there is no presumption that it was issued according to the terms of the section which empowers it. If for instance a notification is issued under the powers given by law there is a presumption that it was regularly published and promulgated in the manner in which it was required to be done. But there is no presumption that it was issued according to the terms of the section which empowers it. In other words if an official act is proved to have been done it will be presumed to have been regularly done. There is no presumption that an act was done of which there is no evidence and the proof of which is essential to the case. The same view was taken in Emperor v. Bhikhu Ramchandra Shinde (52 Bom. L. R. 223) which is another case to which my attention has been invited. It was pointed out there that where the validity of the order has itself to be established by the prosecution as it is only the contravention of a valid order which constitutes an offence the prosecution cannot ask the Court to presume that the order is valid. ( 25 ) THE presumption under sec. 114 illustration (e) has in fact been invoked by courts in respect of some of the rules under consideration. Rule 18 as earlier stated requires that a copy of the memorandum and the specimen impression used by the Food Inspector to seal the packet be sent by him to the Public Analyst separately by registered post or delivered to him or any person authorised by him. Then rule 7 (1) requires that on receipt of the packet containing the sample for analysis from the Food Inspector or any other person the Public Analyst or the officer authorised by him shall compare the seal on the container and the outer cover with specimen impression of the seal sent separately and shall note the condition of the seals thereon. If the Food Inspector has observed the requirements of the provisions relating to the taking of a sample dividing packing and sealing and states that he sent one of the parts to the Public Analyst would it be permissible to presume that he had followed the requirements of rule 18 and if the Public Analyst does not in terms say that he had compared the seals would it be permissible to hold that he had done so before he started the work of analysis ? This point came up for consideration before the Kerala High Court as also the Orissa High Court. In Food Inspector C. M. v. P. Kannan (A. I. R. 1966 Kerala 70) it was proved that the Food Inspector had taken a sample after following the prescribed procedure and had added required preservative. The Food Inspector deposed to having sent one sample to the Public Analyst but there was no proof that the specimen impression of the seal was sent by him or of the fact of comparison of it with the seal on the packet by the Analyst. On a contention being raised before the learned Sessions Judge who heard the appeal against conviction the complainant relied on illustration (e) to sec. 114 of the Evidence Act but the learned Judge held that the presumption under it could not be extended to the actual doing of the official acts but only to their performance in a regular manner and the accused was acquitted. In appeal against that acquittal His Lordship pointed out that the act of sampling sealing and forwarding of the article by the Food Inspector as well as the fact of ascertaining the seal to be intact by the Public Analyst were from the evidence of the Food Inspector and the statement in the forms VII and III which had been used and therefore in the absence of even a suggestion that the specimen impression was not forwarded it may well be presumed that it was sent as declared in the Form itself and similarly when in Form No. III which is required to be used by the Public Analyst under rule 7 it is stated that the sample sent for analysis was properly sealed and fastened and the seal intact and unbroken it would be reasonable to presume that this could not have been stated without his having compared the seal with the impression of the seal received separately and satisfying himself that there was no tampering of any sort with the seal. This ruling therefore shows that it is not only not necessary for the Food Inspector or the Public Analyst to depose to their having in terms carried out the provisions of rules 18 and 7 respectively but that from the fact that prescribed forms were used if that fact is established it would be permissible to presume that the procedure as laid down in the rules and as stated in the forms had been followed. Substantially the same view has been taken by the Orissa High Court in Satrughna Bahra v. Puri Municipality (1968 Cri. L. J. 123 ). ( 26 ) AN unreported decision of the Supreme Court in Kassim Kunju v. K. K. Ramakrishna Pillai (Criminal Appeal No. 39/68 decided on 2-12-1968) may now be referred to. The appellant had been convicted there in respect of an adulterated article of food namely compounded asafoetida. The contention raised before the High Court and the Supreme Court was that the rules framed under the Adulteration Act had not been complied with inasmuch as it had not been proved that the specimen impression of seal used had been sent to the Public Analyst as required by rule 18. The High Court did not accept it and relied on the report of the Public Analyst Exh. P. 9 which was in form III as prescribed by the rules in which it was stated inter alia that the Public Analyst had received from the Food Inspector a sample of compounded meekly asafoetida marked No. C. 2/65 for analysis properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed before the Supreme Court was that it was nowhere stated in Exh. P. 9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. That contention had been negatived by the High Court on the ground that the official acts must be presumed to have been regularly performed. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container. The Supreme Court stated that they did not find any error in the decision of the High Court on the above point. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container. The Supreme Court stated that they did not find any error in the decision of the High Court on the above point. Therefore from the contents of the report of the Public Analyst it was presumed that rules 7 and 18 had been complied with although there was no positive evidence to that effect led before the High Court. Another decision to which my attention has been invited is an unreported decision of a Division Bench of this Court in Criminal Appeal No. 644 of 1961 decided on 18 The rule under consideration was rule 14. There was no material on record to show that the three bottles in which milk purchased for analysis was poured by the complainant were clean dry bottles. No contention had been urged in trial court that the bottles were not clean dry and no suggestion was made to the Food Inspector to that effect. Their Lordships having considered the extent of adulteration found held that it was a proper case in which the presumption under sec. 114 Evidence Act could be raised that all things were properly and correctly done. ( 27 ) THE ratio of these decisions is that no doubt the Food Inspector and the Public Analyst are expected to follow the procedure laid down in the rules but absence of direct evidence in proof of compliance with the requirements of the rule does not justify the conclusion that the requirements were not complied with. If the principal requirement of the provisions of Adulteration Act and the rules as to the taking of the sample sealing the sample sending of the sample and analysis of the sample have been clearly made out the procedure details as to the prescribed manner of doing these acts may be presumed depending on the facts of the case. The presumption is not mandatory but permissible. Whether or not to raise a particular presumption will therefore depend upon facts proved and the nature of the fact to be presumed as proved. If that is so the positive proof of the nature contended for by Mr. Thakore in respect of observance of every part of these rules is not called for. Whether or not to raise a particular presumption will therefore depend upon facts proved and the nature of the fact to be presumed as proved. If that is so the positive proof of the nature contended for by Mr. Thakore in respect of observance of every part of these rules is not called for. ( 28 ) THE argument that the rules 14 to 18 20 and 21 are mandatory is advanced not in support of any contention that there has been a noncompliance with these rules and therefore they being mandatory all the actions of the Food Inspector and the Public Analyst are vitiated but in support of the contention that there should be positive proof that the requirements of the rules were complied with. There is no connection between the two. Assuming the rules are mandatory it does not follow that their compliance cannot be presumed under sec. 114 of the Evidence Act if certain basic facts are proved. It is not alleged that any of these rules has not in fact been complied with. Indeed in respect of rules 15 to 17 and 21 there would be material evidence before the Court in the shape of the bottle jar or container produced in Court under sec. 11 (1) (c) (iii) apart from other evidence. Therefore whether or not these rules are mandatory does not call for decision in this case. Mr. Desai no doubt submitted that the report of the Public Analyst is not admissible under sec. 13 (5) unless and until all the rules leading to the report have been strictly complied with. That may be the result if the rules are held mandatory but the question whether there has in fact been non-compliance remains and on that point the only contention is that in the present case there is no positive proof of compliance with one of the requirements of rule 14 namely the requirement that the bottle be clean dry. If in respect of that point a presumption is permissible and can be drawn on the facts of this case as I shall later point out no tangible contention of actual non-compliance remains and none has been urged before me. It would therefore be hypothetical to consider whether the concerned rules or any of them are mandatory. . . . . . . . . . . . . . . . . . It would therefore be hypothetical to consider whether the concerned rules or any of them are mandatory. . . . . . . . . . . . . . . . . . . . . . ( 29 ) THAT takes me to the last submission namely the vires of rule 7 (2 ). That rule provides that the Public Analyst shall cause to be analysed such samples of articles as may be sent to him by the Food Inspector or by any person under the Act. Under clause (e) of sub-sec. (1) of sec. 22 the Central Government may after consultation with the Committee (the Central Committee for Food Standard) and subject to the condition of previous publication make rules defining the qualifications powers and duties of Food Inspectors and Public Analysts. It is in the exercise of this power that sub-rule (2) of rule 7 has been made. Mr. Thakore says that the rule as framed does not fall squarely within the expression defining the qualifications powers and duties of Food Inspectors and Public Analysts I am unable to see any force in this submission. Rule 7 lays down the duties of the Public Analyst and surely one of his duties is to analyse the sample. It could therefore be one of his duties to cause the sample to be analysed. As pointed out by the Allahabad High Court in Deo Narain v. Board of Revenue (A. I. R. 1964 All. 418) it cannot be contended with any show of reason that the rule-making authority exceeded its powers under sec. 23 (1) (a) in providing that the act of causing the sample of food to be analysed will be one of the duties of the Public Analyst. But Mr. Thakore says that even if rule 7 (3) can be said to be covered by the wording of clause (e) of sec. 23 (1) the rule is inconsistent with the scheme and object of sec. 13 because under sec. 13 read as a whole the analysis must be made by the Public Analyst himself. There is nothing in sec. 13 which requires that the Public Analyst shall make the analysis in every case himself. It is true that the report under subsec. (5) of sec. 13 because under sec. 13 read as a whole the analysis must be made by the Public Analyst himself. There is nothing in sec. 13 which requires that the Public Analyst shall make the analysis in every case himself. It is true that the report under subsec. (5) of sec. 13 is to be a report signed by the Public Analyst but it does not necessarily follow that that report must be based on the analysis which the Public Analyst himself has made. This High Court has pointed out in State of Gujarat v. Mohanlal Chhaganlal (I. L. R. (1965) Gujarat page 391) that:-THE section (meaning sec. 18) does not say that the analysis must be made by the Public Analyst himself. This is so because thousands of substances are sent to the Public Analyst and the Public Analyst cannot himself make the analysis of all the substances. He must have competent staff to do the analysis. Some may be competent in certain types of analysis and some in other types of analysis. Therefore the argument that rule 7 (2) is inconsistent with sec. 13 cannot be entertained. It was argued by Mr. Thakore that the object of subsec. (g) of sec. 13 would be defeated if the analysis is by any person other than the Public Analyst. To that the answer is that the rule does not disassociate the Public Analyst from the analysis but on the other hand requires that he shall cause to be analysed and this would mean as Their Lordships of the Supreme Court point out in Mangaldas v. Maharashtra State (A. I. R. 1965 S. C. 128) that what is done is done under the supervision of the Public Analyst and if that is done Their Lordships say it should be regarded as quite sufficient. I am therefore unable to accept the submission that rule 7 (2) is ultra vires. .