Suleman Mian v. State Of Bihar — 1975 DIGILAW 55 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. These four revision applications have been filed by the accused-petitioners who have been convicted u/s. 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). So far as the petitioners in Criminal Revision No. 354 of 1971 and 1395 of 1972 are convicted u/s 16(1)(b) of the Act. The petitioner in Criminal Revision No. 354 of 1971 has been sentenced to undergo rigorous imprisonment for six months, and the petitioner in Criminal Revision No. 1395 of 1972 has been sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 200/-, or, in default, to undergo simple imprisonment for one month more. The petitioners in Criminal Revision No. 2270 of 1971 and 540 of 1971 have been convicted under Sec.16(1)(a) of the Act. The petitioner in Criminal Revision No. 2270 of 1971 has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, or, in default, to undergo rigorous imprisonment for three months more. The petitioner in Criminal Revision No. 540 of 1971 has been sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1.000, or, in default, to suffer rigorous imprisonment for six months more. All these criminal revision applications have been heard together because a common question of law has been raised in all of them, and, as such, they are being disposed of by this common Judgement. 2. The prosecution case, in a nutshell, so far as Criminal Revision Nos. 354 of 1971 and 1395 of 1972 are concerned, was that, when the Food Inspector visited the shops of the petitioners concerned and wanted to take sample for analysis by the Public Analyst, the petitioners declined to make any sale for sample and pushed out the Food Inspector. So far as the prosecution case in Criminal Revision Nos. 2270 of 1971 and 540 of 1971, is concerned, the Food Inspector visited the shops of the petitioners and purchased linseed oil from the petitioner in Criminal Revision No 2270 of 1971 and mustard oil from the petitioner to Criminal Revision No. 540 of 1971 which were sent for analysis to the Public Analyst and, on analysis, it was discovered that they were adulterated. 3. 3. In view of Sub-Section (1) of Sec.20 of the Act, a prosecution can be instituted only 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 the local authority. The petitioners in these applications have raised a point that their prosecutions were instituted in contravention of the provisions of Sec.20(1), and, as such, the trial in each case has been vitiated and the orders of conviction and sentence passed against them are liable to be quashed by this Court. In this connection it may be mentioned that, so far as Criminal Revision Nos. 354 of 1971, 2270 of 1971 and 1395 of 1972 are concerned, the prosecution was launched after the written consent had been given by the District Medical Officer, Gaya District Board, on the basis of an alleged authorisation by the Administrator of the District Board, Gaya. In Criminal Revision No. 540 of 1971 the prosecution was instituted after written consent had been given by the Administrator, District Board, Santhal Paraganas. Now, the question falling for decision is as to whether there was any infirmity in the said written consent given by the District Medical Officer, so far as the aforesaid three applications are concerned, and by the Administrator in the fourth case. 4. Sub-Section (1) of Sec.20 of the Act reads as follows :- "20(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 along with the complaint." From a bare reference to Sub-Section (1) quoted above, it is obvious that it places a bar on the power of the authorities concerned to launch prosecution against a person who is alleged to have contravened the provisions of the Act. It is a bar at the same time on the power of the Criminal Court to proceed with the trial of the alleged offence under the Act. The object of Sec.20(1) is that the authority duly vested with the power under the Act should apply its mind to the facts and the circumstances of the particular case to find out as to whether prosecution should be launched or not. The scope of this section has been considered from time to time by different Courts in India and even by the Supreme Court, and every time the Courts have proceeded on the assumption that the requirements of Sec.20 are imperative in nature. The only controversy which has been sought to be resolved is as to in what form the Central Government or the State Government or the local authority can authorise a person to exercise the power under Sec.20(1) of the Act. In this connection a reference can be made to the cases of State of Bombay V/s. Parshottam Kanaiyalal, AIR 1961 SC 1 : ((1961) 1 Cri LJ 170), Chittaranjan Das V/s. The State of Orissa, AIR 1973 SC 2708 : (1973 Cri LJ 1835) and Public Prosecutor V/s. Kuppam Satyanarayan, AIR 1960 Andh Pra 27 : (1960 Cri LJ 46). 5. Learned Counsel for the District Board, Gaya and the learned counsel appearing for the State have urged that the requirements of Sec.20(1) are not mandatory in nature. They, however, could not cite any judgement of any Court in support of their contention. In my opinion, in view of the settled position about the nature of the requirements of Sec.20(1) it is too late to urge that the requirements of Sec.20 are not imperative in nature. The only question which can be examined in each case is as to whether the requirement of written consent, before the institution of the prosecution, has been fulfilled. In the three cases relating to Gaya District Board. I have already mentioned that the written consent has been given by the District Medical Officer on the basis of authorisation by the Administrator of the said District Board. As such, it has to be found out as to whether the District Medical Officer could be deemed to have been authorised by the local authority within the meaning of the Act. As such, it has to be found out as to whether the District Medical Officer could be deemed to have been authorised by the local authority within the meaning of the Act. So far as the case relating to the Santhal Parganas District Board is concerned, the written consent has been given by the Administrator of that District Board. So, in that case it has to be seen as to whether the written consent has been given by the local authority. 6. Sec.2(vii) of the Act defines local area to mean "any area, whether urban or rural, declared by the Central Government or the State Government by notification in the Official Gazette to be a local area for the purposes of this Act." Sec.2(viii) of the Act defines local authority in the case of - "(1) a local area which is - (a) a municipality, the Municipal Board or Municipal Corporation : (b) a cantonment, the cantonment authority; (c) a notified area, the notified area committee;" (2) any other local area, such authority as may be prescribed by the Central Government or the State Government under this Act." From a bare reference to the aforesaid definition of local area it is clear that the Central Government or the State Government may, by notification in the Official Gazette, declare any urban or rural area as the local area for the purposes of the. Act Similarly, in every such local area, which is within the municipality, the municipal board or municipal corporation shall be deemed to be the local authority. If the local area is cantonment, the cantonment authority will be deemed to be the local authority; and if it is a notified area, the notified area committee will be deemed to be the local authority. There is no specific mention in the said definition about the District Board, as to whether it will be a local authority within the meaning of Sec.2(viii). Sec.2(viii)(2), however, lays down that the Central Government or the State Government may prescribe any authority to be the local authority within any other local area. There is no specific mention in the said definition about the District Board, as to whether it will be a local authority within the meaning of Sec.2(viii). Sec.2(viii)(2), however, lays down that the Central Government or the State Government may prescribe any authority to be the local authority within any other local area. For holding that the Administrator of a District Board is the local authority, it has to be established that the area within the jurisdiction of the District Board has been declared to be the local area under Sec.2(vii), and the District Board or its Administrator has been prescribed as the local authority within the meaning of Sec.2(viii). 7. Learned Counsel appearing for the petitioners in the different applications have submitted that the areas covered by the Gaya and Santhal Parganas District Boards may have been declared as local areas within the meaning of Sec.2(vii), by notification published by the State Government in the Official Gazette, but the District Board or the Administrator of the District Board has never been prescribed as the local authority, as required by Sec.2(viii), and, as such, any written consent either by the District Medical Officer on the basis of authorisation from the Administrator, or by the Administrator will not be in conformity with the requirements of Sec.20(1) of the Act. Learned Counsel appearing for the District Board, Gaya has drawn our attention to a Notification No. V/E2-04/56-165, dated the 6th June, 1956, by which all District Boards have been declared as local authorities within the meaning of Sec.2(viii) of the Act. According to the learned counsel appearing for the opposite party, in view of the said notification, which was published in the Official Gazette, the District Boards concerned will be deemed to be the local authorities and the Administrators of such superseded District Boards can exercise the power under Sec.20(1) of the Act. In this connection it may be mentioned that the District Boards concerned have been superseded under the Provisions of the Bihar District Boards and Local Boards (Control and Management) Act, 1958. Sub-Section (1) of Sec.2 of this Act vests power in the State Government to issue notification in the Official Gazette directing that the members, including the Chairman and the Vice-Chairman, of any District Board or Local Board in the State of Bihar shall, with effect from a date to be specified in such order, vacate their respective offices. Sub-Section (1) of Sec.2 of this Act vests power in the State Government to issue notification in the Official Gazette directing that the members, including the Chairman and the Vice-Chairman, of any District Board or Local Board in the State of Bihar shall, with effect from a date to be specified in such order, vacate their respective offices. Sub-Section (2) of Sec.2 of this Act provides that, when an order has been published in accordance with Sub-Section (1) of Sec.2, the powers, functions and duties conferred on such District Board or Local Board or the Chairman or the Vice Chairman of such authority shall be exercised and performed by persons appointed by the State Government from time to time. Administrators have been appointed in exercise of the power under Sub-Section (2) of Sec.2, and they are performing the duties on behalf of the District Board. According to learned Counsel appearing for the opposite party, in view of Sub-Section (2) of Sec.2 of this Act, read with the aforesaid notification of the year 1956 by which the District Boards had been declared as local authorities, the Administrator will be deemed to be the local authority within the measuring of Sec.2(viii) of the Act. Apparently, there was no hurdle in accepting this argument, but the difficulty is that the Act not only directs that the authority is to be prescribed by the Central or the State Government for such local areas, but it also defines the word "prescribed. The word prescribed has been defined under Sec.2(xii) of the Act which reads as follows :- "prescribed means prescribed by rules made under this Act;" The net result is that, under Sec.2(viii)(2) it has to be read that, for a local area, other than the municipality, cantonment or notified area, the Central Government or the State Government has to prescribe an authority, who will be deemed to be the local authority, by rules made under this Act. Learned Counsel appearing for the opposite party in the different revision applications, however, submitted that the word prescribed need not be limited to be prescribed by rules only, but it can be even by notification or by general or special order of the State Government, in my opinion, it is difficult to accept this contention in view of the clear language of Sec.2(viii)(2), read with Sec.2(xii), of the Act. If the word prescribed had not been defined in the Act, then there was some scope for consideration as to whether a local authority can be prescribed even by a notification or by an order made by the State government. This aspect of the matter was considered by a learned Single Judge of this Court in Sarjug Sah V/s. The State of Bihar, ( 1973 BBCJ 560 ), where it was pointed out that, although the State of Bihar has framed rules in exercise of the powers conferred by the Act, yet no rule has been framed by which the District Board has been declared to be a local authority for the purposes of the Act. It was also pointed out that the Andhra Pradesh, Assam, Himachal Pradesh. Madras, Rajasthan and Punjab Governments have already framed rules in that regard. I am in complete agreement with the view taken in the aforesaid case. The said judgement was delivered on the 22nd January, 1973. On the 27th January, 1973, a Notification No. S. O. 128, dated the 24th January, 1973, was published in an issue of the Bihar Gazette of the following contents : "S. O. 128 - In exercise of the power conferred by Sec.20(1) of the Prevention of Food Adulteration Act, 1954 (37 of 1954), the Governor of Bihar is pleased to declare the Chairman/Administrators of all District Boards to be local authority for sanctioning prosecution under the Prevention of Food Adulteration Act and directs that the said Chairman/Administrators shall exercise their powers within the local limits of the District Board for the purpose of the said Act. District Boards have already been declared local authority vide Notification No. V/E2-04/56-165 dated the 6th June, 1956 and local areas vide Notification No. V/E2-04/55-29608, dated the 12th October, 1955." By this notification the State Government has purported to declare the Chairman and Administrators of all District Boards to be local authorities for the purposes of sanctioning prosecution under the provisions of the Act. In this notification there is a reference to an earlier notification, dated the 6th June, 1956, by which the District Boards were purported to be declared as local authorities within the meaning of the Act. 8. In this notification there is a reference to an earlier notification, dated the 6th June, 1956, by which the District Boards were purported to be declared as local authorities within the meaning of the Act. 8. It appears that this notification has been issued without notice of the Judgement of this Court in the case of Sarjug Sah, 1973 BBCJ 560 and apparently it only purports to prescribe by notification that the power which had been vested in the District Board shall be exercised also by the Chairman or the Administrator concerned who will act as the local authority. But, as I have indicated above, this declaration must be in the prescribed manner, that is, by rules framed under the provisions of the Act. 9. Sec.24 of the Act deals with the power of the State Government to make rules under which the State Government may make rules for the purpose of giving effect to the provisions of the Act. In that connection it may be pointed out that wherever the Act contemplates that a power can be given or delegated by notification, there has been a specific mention about it, and a reference can be made in this connection to Sections 8, 9, 15 etc. Section 8 says that the Central Government or the State Government may, by notification in the Official Gazette, appoint such person as it thinks fit, to be public analyst for such local area as may be assigned to him. Section 9 prescribes that the Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, to be food inspectors for such local area as may be assigned to them. Sec.15 lays down that the Central Government or the State Government may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification. In View of these provisions, it is difficult to hold that when the word prescribed has been mentioned in Sec.2(viii) and the word prescribed has been defined to mean prescribed by rules made under this Act, the local authority can be prescribed by a mere notification. In view of the clear and unambiguous language. In View of these provisions, it is difficult to hold that when the word prescribed has been mentioned in Sec.2(viii) and the word prescribed has been defined to mean prescribed by rules made under this Act, the local authority can be prescribed by a mere notification. In view of the clear and unambiguous language. I have to hold that any authority can be declared as local authority within the meaning of Sec.2(viii)(2) only by rules made under the Act. Admittedly, none of the District Boards in these cases, or the Administrators thereof, has been, declared as local authority by any rule framed under the Act, and, as such, it has to be held that they are not local authorities within the meaning of the Act. As much, the Administrators of such District Boards could neither give written consent for institution of the prosecution nor could authorise the District Medical Officer concerned to give written consent for the institution of the prosecution. 10. On the aforesaid finding it has to be held that the prosecutions instituted against the petitioners in all these cases were in contravention of the requirements of Sec.20(1) of the Act. I have already held that Sec.20(1) is imperative in nature and any non-compliance with the requirements thereof will render the prosecution null and void and without any authority in law. Accordingly, I am left with no option but to hold that the orders of conviction and sentence passed against the petitioners in these applications are vitiated and liable to be quashed by this Court. 11. In the result, the revision applications are allowed and the orders of conviction and sentence passed against the petitioners in the four cases are set aside and they are acquitted. S.ALI AHMAD, J. 12 I agree.