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Allahabad High Court · body

1999 DIGILAW 1061 (ALL)

Nazar v. State of U. P.

1999-07-27

BHAGWAN DIN

body1999
( 1 ) ON being convicted by the Judicial Magistrate 1st Class, Bijnor under Ss. 7/16 of the Prevention of Food Adulteration Act (hereinafter called act) and sentenced to 6 months R. I. and to a fine of Rs. 1,000. 00, the present revisionist, Nazar preferred an appeal before the Sessions Judge, Bijnor which was ultimately heard and disposed of by IVth Addl. Sessions Judge, Bijnor. The appellate Court dismissed the appeal by order dated 18-4-1983 confirming the order of conviction and sentence passed by the trial Court. Hence, the present revision, challenging the legality and propriety of the order of conviction passed by the trial Court and also the order made by the appellate Court dismissing the appeal. ( 2 ) FOR appreciation of the submissions of Sri R. B. Sexena, holding brief of Sri G. C. Saxena, learned counsel appearing for the revisionist and of the learned A. G. A. and also to arrive at the correct decision, the relevant facts are given hereunder. ( 3 ) SRI Somendra Kumar was Sanitary Inspector at P. H. C. Kiratpur. By a notification issued under S. 9 of the Act, he was appointed Food Inspector for an area of P. H. C. Kiratpur. On 11-7-1980 at about 6. 30 a. m. he intercepted the revisionist, Nazar near Tanga Stand within the Municipal limit of Kiratpur. After disclosing his identity, he served a notice in Form 6 exhibiting his intention to take sample of the milk carried by him for sale. He took a sample of requisite quantity of milk, divided the same in 3 equal parts, kept in 3 clean and dry bottles and sealed on spot. He also prepared a memo of the proceeding of taking the sample from the revisionist, Nazar. Then he handed over one of the sealed bottles to the revisionist and deposited the other two sealed bottles in the office of C. M. O. Bijnor for further transmission to the Public Analyst for analysis and report. On receipt of the Analysts report, the C. M. O. authorised him to institute prosecution against the present revisionist. ( 4 ) THE Food Inspector instituted a complaint against the revisionist. In order to prove the guilt of the revisionist, he testified himself as P. W. 1. On receipt of the Analysts report, the C. M. O. authorised him to institute prosecution against the present revisionist. ( 4 ) THE Food Inspector instituted a complaint against the revisionist. In order to prove the guilt of the revisionist, he testified himself as P. W. 1. Before the trial Court among other points, it was contended that the area of operation by the Food Inspector, Somendra Kumar was limited within the P. H. C. Kiratpur. He took the sample within the Municipal area of Kiratpur beyond the area for which he was appointed as Food Inspector. Therefore, the entire proceeding of taking sample and prosecution stands vitiated. The trial Court observed that though Somendra Kumar was appointed as a Food Inspector for an area under P. H. C. Kiratpur, but the C. M. O. Bijnor has ordered him to look after the work of the Food adulteration under the Act within the Municipal Board area, Kiratpur in addition to his own usual duties till the trained Food Inspector is posted in Municipal Board, Kiratpur. Thus, he was authorised to take sample within the Municipal area of Kiratpur and there is no illegality or embarkment of jurisdictional area of the Food Inspector. ( 5 ) IN the appeal, the same argument was advanced before the appellate Court. The appellate Court also was of the view that since the work of Sri Somendra Kumar as Food Inspector within the Municipal area of Kiratpur has been authenticated by the C. M. O. Bijnor, there is no fallacy or illegality in taking the sample within the Municipal area of Kiratpur. The appellate Court on the above view, turned down the submission of the counsel for the appellant on this count. ( 6 ) IN the present revision, the same question of law has been raised on the force of the observation made by this Court in Ram Dulare v. State (1979) 1 FAC 269 : (1979 All LJ 220 ). ( 7 ) I have had the opportunity to go through the decision of the above case. In that case the Food Inspector had taken the sample of milk in an area for which he was not appointed as Food Inspector. He, therefore, stated before the Court that he had been orally instructed by the Nagar Swasthya Adhikari to act as Food Inspector over the entire Corporation area. In that case the Food Inspector had taken the sample of milk in an area for which he was not appointed as Food Inspector. He, therefore, stated before the Court that he had been orally instructed by the Nagar Swasthya Adhikari to act as Food Inspector over the entire Corporation area. The Court held that Nagar Swasthya Adhikari had no power vested in him to authorise such inspection. ( 8 ) SECTION 9 of the Act contemplates an appointment by the Provincial Government of the Food Inspector together with the specification of the local area over which he is authorised to exercise jurisdiction. This section makes no provision whereby such power limiting the area of operation by the State Government can be de-legated to, or exercised by the Health Officer, with respect to the Sanitary Inspectors who are conferred with the power of Food Inspector under notification issued in this behalf. ( 9 ) THIS Court in this case (supra) held that "even assuming that oral instructions were given by the Health Officer, but Sri Gera had no jurisdiction to act outside the area of Harbans Mohal and take sample of food in Juhi Kalan for which he never was Sanitary Inspector. Therefore, Sri Gera had no jurisdiction to take sample. As such, the entire proceedings are vitiated in law" . ( 10 ) BY notification issued by the State Government, Sri Somendra Kumar, who was working as Sanitary Inspector, conferred with the power to exercise and act as Food Inspector in an area of which he was the Sanitary Inspector. Section 9 of the Act lays down that the Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit having the prescribed qualifications to be Food Inspector for such local areas as may be assigned by the Central Government or the State Government, as the case may be. Thus, the local area within which Food Inspector is authorised to act may be assigned d by the Central Government or State Government. The power of the Central Government or State Government has not been delegated to the C. M. O. Bijnor to change the area or assign additional jurisdiction of the area to a Food Inspector for which he was not appointed as a Food Inspector. The power of the Central Government or State Government has not been delegated to the C. M. O. Bijnor to change the area or assign additional jurisdiction of the area to a Food Inspector for which he was not appointed as a Food Inspector. ( 11 ) HAVING regard to the legal proposition contemplated in S. 9 of the Act and also the view taken by this Court on this count, I am of the opinion that Sri Somendra Kumar had no jurisdiction to take sample of the milk within the Municipal area of Kiratpur and, therefore, the entire proceedings and the trial as well stood vitiated. ( 12 ) THE revision is, therefore, allowed. The order of the trial Court convicting and sentencing the revisionist is set aside. So also the order of the appellate Court dismissing the appeal and confirming the conviction and sentence awarded by the trial Court is set aside. The revisionist is on bail, need not to surrender. The bail bonds are cancelled. The sureties are discharged. The amount of fine whatsoever deposited by the revisionist in the Court shall be refunded forthwith. Revision allowed. . .