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Madhya Pradesh High Court · body

2006 DIGILAW 1387 (MP)

MUNICIPAL CORPORATION, GWALIOR v. LURINDAMAL

2006-12-06

A.K.GOHIL, S.A.NAQVI

body2006
ABHAY GOHIL, J. ( 1 ) THIS is a reference made by learned Single Judge of this Court to the Division Bench in view of the conflicting judgment in the cases of Kishanlal v. Municipal Corporation, Jabalpur; municipal, Balaghat v. Phoolabai and Municipal Council, balagaht v. Bhaduram under the Prevention of Food Adulteration Act, 1954 (in short the "act of 1954") and matter has been placed before the Division Bench to answer the reference. ( 2 ) THE background of the facts in which this reference has been made is that the municipal Corporation, Gwalior filed a complaint under Section 7 (i) and 16 (i) of Prevention of Food Adulteration Act, 1954 against the respondent for selling the adulterated food. The complaint was registered as Criminal Case No. 4815/84 by the Chief judicial Magistrate, Gwalior. After recording the evidence before charge the case was fixed for arguments on the question of framing of charge. At this stage, respondent raised an objection that after amendment in Section 20 of the Act of 1954, the Municipal corporation has no power to file the complaint. After hearing the parties, learned trial Court upheld the objections and discharged the accused/respondents. Learned chief Judicial Magistrate has held that the complaint was filed by Municipal Corporation, Gwalior through Anand Swaroop bhatnagar/complainant on 13. 11. 1984 through counsel for the Corporation. Chief judicial Magistrate held that there was amendment in the Food Adulteration Act in the year of 1976 and the words "local authority" were deleted from the Section and, therefore, the local authority is not competent to file prosecution for an offence under the Act of 1954 and it was further held that annexure-P/10 which is the copy of the notification of Government of Madhya Pradesh dated 19. 8. 1958 was issued prior to the amendment in Section 20 of the Act of 1954 and also placing reliance on a decision in the case of Municipal Council Balaghat v. Phoolabai (Criminal Appeal No. 397/1986), the trial Court held that the local authority i. e. Municipal Corporation was not competent to file the complaint, therefore, the complaint filed by the Municipal Corporation was not maintainable and dismissed the complaint and discharged the respondent. Against which Municipal Corporation has filed this Criminal Revision before this court which was registered as Criminal revision No. 20/1997. Against which Municipal Corporation has filed this Criminal Revision before this court which was registered as Criminal revision No. 20/1997. When the aforesaid revision came up for hearing before the learned Single Judge on 12. 3. 1997. During the course of hearing learned counsel for the respondent placed reliance on two decisions in the case of Phoolabai (supra) and bhaduram (supra) and the learned counsel for Municipal Corporation, Gwalior placed reliance on a decision in the case of kishanlal (supra ). The learned Single Judge after considering the judgments found that the judgments cited supra are conflicting judgments on the question in dispute therefore referred the matter to the Division bench for resolving the aforesaid controversy. ( 3 ) WE have heard the learned counsel for the parties and perused the documents placed on record as well as the provisions of amended Section 20 of the Act of 1954 and also the ratio decided in the aforesaid judgments. ( 4 ) AMENDED Section 20 of the Act of 1954 is being reproduced below as under: "20. Cognizance and trial of offence. (1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14a shall be instituted except by, or with the written consent of the central Government or the State government or a person authorised in this behalf by general or special order, by the central Government or the State government. Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in Section 12 if he or it produces in court a copy of the report of the public analyst along with the complaint. (2) No court inferior to that of a metropolitan Magistrate or a judicial Magistrate of the first class shall try any offence under this Act. (3) Notwithstanding anything contained in the Code of Criminal procedure, 1973 an offence punishable under sub-section (1aa) of Section 16 shall be cognizable and non-bailable. "( 5 ) THERE is no dispute that the words "local authority" in sub-section (1) of Section 20 have been omitted by the Amendment Act no. 34 of 1976, which came into operation w. e. f. 1st April, 1976. Therefore, after 1st april, 1976 the local authority was not competent to file the complaint. "( 5 ) THERE is no dispute that the words "local authority" in sub-section (1) of Section 20 have been omitted by the Amendment Act no. 34 of 1976, which came into operation w. e. f. 1st April, 1976. Therefore, after 1st april, 1976 the local authority was not competent to file the complaint. In case of Municipal Council Balagahat v. Smt. Phoola bai (supra) the learned Single Judge has held that since after amendment the word "local authority" has been deleted and the complaint was filed on the basis of sample of milk taken on 15. 1. 1981, the Municipal council had no authority to launch any prosecution then obviously it has no right to file appeal. The same view is taken in the case of Municipal Council, Balaghat v. Bhaduram (supra) in which the learned single Judge has held that prior to the amendment it was provided that the prosecution cannot be instituted without written consent of the Central Government or the State Government or the local authority or a person authorised in this behalf by general or special order by the Central Government or the State Government. By the aforesaid amendment the word "local authority" was deleted and as the offence was committed on 18. 10. 1980 on which date the amendment Act does not authorise the Municipal Council to file the complaint, therefore the complaint was without jurisdiction and consequently dismissed the appeal. Prior to the aforesaid two decisions by the learned Single, another judgment was passed by the High Court in the case of kishanlal v. Municipal Corporation, jabalpur (supra) and the facts of that case were that one complaint was filed by one c. P. Pathak, Food Inspector, employed by the Municipal Corporation, Jabalpur before the Chief Judicial Magistrate and it was objected that the Food Inspector Pathak was not competent to file the complaint and, as such, the complaint was not maintainable in the Court of Law and on this objection it was also argued that unless fresh notification by the Central Government or State government is made authorising the Food inspector to institute the prosecution, the food Inspector was not competent to institute the prosecution simply on the basis of any earlier notification in this regard. The learned Judge has also considered this aspect of the matter that earlier before the amendment the powers were vested with three local authorities, i. e. , Central Government, state Government and the local authority and after amendment the powers had come to be vested only in two authorities viz. , Central Government and the State government and the power of the local authority and of a person authorised by the said authority in this behalf was obviously taken away by Amendment Act No. 34 of 1976. Learned Single Judge has also considered this aspect of the matter that the government of Madhya Pradesh, Public health Department vide notification No. 7770/xvii-Dated 31st December, 1959, published in M. P. Rajpatra dated 19. 2. 60, Part i at page 224, in exercise of the powers conferred by sub-section (1) of Section 20 of the act of 1954 had authorised all Food inspectors to institute or to give consent for the prosecution of the offence under the said Act within the local areas respectively assigned to them. Shri Pathak was admittedly a Food inspector in this State whether he be in the employment of the Corporation or of any other body. He had derived his authority for institution of the prosecution from the State government under the above notification. As the State Government had delegated his powers to the Food Inspectors to sanction the prosecution, as such, Pathak being Food inspector in the State was competent to institute the prosecution in his own right as food Inspector. Therefore, the learned single Judge has held that the complaint was filed by Food Inspector Pathak and not by the Municipal Corporation and Pathak had derived power directly from the State government and therefore was competent to institute the prosecution in his capacity as a private purchaser as has been rightly held by the learned Trial Magistrate and dismissed the preliminary objection raised by the accused. Thus, in the case of kishanlal (supra) the question involved was not the competence of the local body but the competence of Food Inspector to file complaint after deriving authority from the state Government was under consideration and the same was answered accordingly. Thus, in the case of kishanlal (supra) the question involved was not the competence of the local body but the competence of Food Inspector to file complaint after deriving authority from the state Government was under consideration and the same was answered accordingly. ( 6 ) ON bare reading of the aforesaid judgment of learned Single Judge in case of kishanlal (supra) it is clear that the complaint was not filed or prosecution was not instituted by the Municipal Corporation but it was initiated by the Food Inspector after deriving the powers under the aforesaid notification, which is not the subject matter of dispute in this case. In this case the prosecution was instituted and complaint was filed by Municipal Corporation Gwalior through Anand Swaroop Bhatnagar and in para 1 of the complaint it has been mentioned that the complainant is the employee and Sanitary Inspector of the Municipal corporation and in the bottom of the complaint Anand Swaroop Bhatnagar had signed, mentioning his designation as Food inspector of Municipal Corporation, Gwalior therefore, it is clear that in the instant case the complaint was filed by Municipal Corporation, Gwalior through Anand Swaroop bhatnagar, Food Inspector, and it was not shown that complaint has been filed by Food inspector independently after deriving authority from the State Government, whereas in the case of Kishanlal (supra) the complaint was not filed by Municipal Corporation, Jabalpur but it was filed by C. P. Pathak Food Inspector, as he was empowered by the State Government to file the complaint vide notification and prior to and after Amendment Act No. 34 in Section 20 of the Act of 1954 there is no change about the powers of the State Government except the change in the word "local authority". Therefore, there appears clear distinction between the two complaints and it is clear that the local authority or person authorised by local authority is not authorised to file the complaint but certainly the person authorised in this behalf by general or special order by the Central Government or state Government is authorised to file the complaint. ( 7 ) THEREFORE, in our considered opinion, there is no conflict between the three judgments as have been referred by the learned single Judge. ( 7 ) THEREFORE, in our considered opinion, there is no conflict between the three judgments as have been referred by the learned single Judge. In the earlier two cases of municipal Council Balaghat v. Phoolbai and municipal Council Balaghat v. Bhaduram (supra) the learned Single Judge has rightly held that after the amendment the local authority has no power to institute the prosecution or to file the complaint and in the case of Kishanlal v. Municipal Corporation, jabalpur (supra) as the complaint was not filed by the Municipal Corporation but it was filed by the Food Inspector, who was authorised by the State Government, therefore, the learned Single Judge has rightly held that he was competent to file the complaint. ( 8 ) IN case of Food Inspector, Health Deptt. U. T. Chandigarh v. M/s. Krishna Dhaba, in similar situation the Supreme Court has held that the Food Inspector was competent to file the complaint as authorised through notification by the Government, therefore, under sub-section (1) of Section 20 of the act of 1954 he was the person authorised to institute a complaint. The Food Inspector as well could give his consent for launching of prosecution and in doing so he was neither delegating his power nor acting contrary to Section 20. He was acting within the scope of authority as a person authorised to institute complaint under Section 20 (1)of the Act of 1954 and it was held that quashing of complaint filed by Food Inspector on ground of want of authority was not proper and the orders passed by the High Court quashing the complaint, were set aside. ( 9 ) AFTER considering the decisions cited above and referred to in the reference order, we do not find that there is any conflict between the aforesaid decisions and there is no controversy between the same. In the cases of Phoolabai and Bhaduram (supra)learned Single Judge has rightly held that after the amendment local authority has no power to institute the complaint and in case of Kishanlal (supra) learned Single Judge has rightly held that as the complaint was filed by the Food Inspector and not by the local authority after deriving the powers from the State Government, the complaint was maintainable. Therefore, all the three judgments are based on correct appreciation of the facts and law and we do not find any conflict between them. Therefore, all the three judgments are based on correct appreciation of the facts and law and we do not find any conflict between them. ( 10 ) THUS, after analyzing the clear legal position we hold that after the amendment in Section 20 of the Act of 1954 the local authority or any person authorised by local authority has no power and jurisdiction to initiate the prosecution or to file any complaint and a person authorised in this behalf by general or special order by the Central Government or the State Government can file the complaint after following the procedure as laid down under Section 20 of the Act of 1954 and therefore the reference is answered accordingly. ( 11 ) IN view of the above, matter be placed before the learned Single judge for deciding the pending Criminal Revision No. 20 of 1997. Ordered accordingly. .