Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 576 (AP)

Raja Rajeshwari Enterprises v. State of A. P.

2006-04-26

G.YETHIRAJULU

body2006
ORDER : 1. This Criminal Revision case is filed by the respondent in M.C. No. 56 of 2006 on the file of Mandal Executive Magistrate, Nellore. The Director of Institute of Preventive Medicine, PH Labs & Food (H) Admn., Narayanaguda, Hyderabad, made an application to the Mandal Executive Magistrate, Nellore, Mentioning that while checking the sale of packed drinking water manufactured by the respondent, they found that the manufacturing of packed drinking water is without obtaining B.I.S. certification mark, which is mandatory as per the Central Government orders in G.S.R. No. 759(E) & 760(E) dated 29-09-2000. Therefore, he requested to close the Units, which are manufacturing and selling packed drinking water in violation of the statute. On the basis of the said representation, the Mandal Executive Magistrate passed the following order: “Whereas it has been made to appear to me that you are carrying on the trade of manufacturing packed drinking water in the name of M/s. Raja Rajeswari Enterprises, Akuthota, Nellore, which is injurious to public health by reason that you are manufacturing packed drinking water without obtaining B.I.S. Certification Mark and the said Unit is in violation of PFA Act and Rules and should be closed immediately in the interest of public health. I do hereby direct and require you within 3 days to stop the manufacture and sale of packaged drinking water and to close the manufacturing Unit of M/s. Raja Rajeswari Enterprises, Akuthota, Muthukur Road, Nellore as its continuance is injurious to the public health which is in violation of PFA Act and Rules, 1954.” 2. This order was passed by the Mandal Executive Magistrate on 25-03-2006. Being aggrieved by the said order, the respondent preferred the present revision questioning its legality. The petitioner contended that the Mandal Executive Magistrate under Section 133 of the Code of Criminal procedure (for short ‘Cr.P.C.’) only a conditional order can be passed and conducting of an enquiry as prescribed under Section 138 Cr.P.C. is essential to pass final order under Section 136 Cr.P.C. Whereas the Executive Magistrate passed the final order directing to close the Unit without giving an opportunity as required under the procedure prescribed under law. The Mandal Executive Magistrate also passed the order in violation of the principles of natural justice without issuing any notice to the petitioner. The Mandal Executive Magistrate also passed the order in violation of the principles of natural justice without issuing any notice to the petitioner. The Mandal Executive Magistrate also did not observe as to how the selling of manufacturing of water without B.I.S. Certification amounts to public nuisance and how it violates the provisions of Prevention of Food Adulteration Act and Rules thereon and mere non-obtaining of B.I.S. certification does not necessarily mean that the same is injurious to public health, therefore, the order is liable to be set aside. 3. The learned counsel for the petitioner at the time of hearing of the matter submitted that as per Section 133 Cr.P.C. the Mandal Executive Magistrate cannot pass the order without specifically empowered in that regard, therefore, he is incompetent to pass the order. 4. Section 133 Cr.P.C. reads as follows: “133. 3. The learned counsel for the petitioner at the time of hearing of the matter submitted that as per Section 133 Cr.P.C. the Mandal Executive Magistrate cannot pass the order without specifically empowered in that regard, therefore, he is incompetent to pass the order. 4. Section 133 Cr.P.C. reads as follows: “133. Conditional order for removal of nuisance:— (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers— (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, of the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of. 5. 5. Such magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order— (i) to remove such obstruction or nuisance; or (ii) to desist from carrying on or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support, such building, tent or structure, or to remove or support such trees; (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.” 6. The learned counsel for the petitioner, in support of his contention, relied on a judgment of this Court in Sri Ayyappa Stoine Crusher, Kuntrapakam v. M.R.O. Tirupathi, 2001 (1) ALT (Crl.) 136 : 2001 (1) ALD (Crl.) 231 (A.P.), wherein Sections 133 and 138 of Cr.P.C. came up for consideration and the learned single Judge observed as follows: “Turning to Section 133 of the Code either the District Magistrate or the Sub-Divisional Magistrate is competent to exercise jurisdiction under it. However, other Executive Magistrates are not competent to exercise jurisdiction, except those who are specially empowered in this behalf by the State Government. Therefore, for an Executive Magistrate to exercise jurisdiction under Section 133 of the Code, he must be specially empowered by the State Government for that purpose, whereas such empowerment is not necessary for a District Magistrate or a Sub-Divisional Magistrate. The impugned proceedings in the instant case have been passed by the Mandal Executive Magistrate. Therefore, for an Executive Magistrate to exercise jurisdiction under Section 133 of the Code, he must be specially empowered by the State Government for that purpose, whereas such empowerment is not necessary for a District Magistrate or a Sub-Divisional Magistrate. The impugned proceedings in the instant case have been passed by the Mandal Executive Magistrate. It is not known as to whether the learned Mandal Executive Magistrate has been specially empowered in this behalf to act under Section 133 of the Code. No proceedings issued by the Government appointing specially for the purpose has been placed before this Court nor has been articulated in the order expressly. In the absence of any such special empowerment it is obvious that the competence of the learned Executive Magistrate will be at stake and any order passed by him will become an order having been passed without jurisdiction.” 7. The learned counsel for the petitioner also cited another judgment of the Supreme Court in State of Maharashtra v. Mohammed Salim Khan, (1991) 1 SCJ 82 wherein it is held that the Executive Magistrate may be placed in-charge of a sub-division and he would be called as Sub-Divisional Magistrate. These Magistrates except the Additional District Magistrates are entitled to exercise all the powers and perform all the duties conferred and imposed by the Code. The Additional District Magistrate, however, will have only such of the powers of the District Magistrate as may be directed by the State Government. The Supreme Court while dealing with Section 21 of Cr.P.C. posed a question what is the true construction of Section 21 of Cr.P.C. 8. In the case covered by the above decision, the High Court made a distinction between the ‘powers conferred’ by the Code and ‘powers conferrable’ under the Code on the Executive Magistrate and the omission to use the term ‘powers conferred’ in Section 21. The High Court expressed the views that the ‘powers conferred’ by the Code are those powers which are exercisable by virtue of holding the post of Executive Magistrate. The person appointed as an Executive Magistrate gets automatically all the powers conferred by the Code and is entitled to exercise such powers. He is entitled to exercise all the powers and perform all the duties by virtue of his being an Executive Magistrate. Such powers are not to be conferred on him since they are attached to the post. The person appointed as an Executive Magistrate gets automatically all the powers conferred by the Code and is entitled to exercise such powers. He is entitled to exercise all the powers and perform all the duties by virtue of his being an Executive Magistrate. Such powers are not to be conferred on him since they are attached to the post. But it would be open to the Government to confer on the Executive Magistrates the powers that are conferrable under the Code which powers are distinct and different. The High Court observed that the Special Executive Magistrate cannot possess by virtue of his appointment any of the powers of the Executive Magistrate conferred by the Code. The opposite counsel urged that the Special Executive Magistrate is also Executive Magistrate and the very purpose of appointing the Special Executive Magistrates are defeated if they are held to have no power of an Executive Magistrate. While considering the order of the High Court and the submissions made by the appellant's counsel the Supreme Court observed as follows: “These submissions do call for serious discussion. Section 21 may conveniently be divided into two parts: (i) The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions; and (ii) the State Government may confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit. Part I provides power to the State Government to appoint Executive Magistrates to be known as the Special Executive Magistrates. It also sets out the terms of such appointment part II speaks of the nature of the power to be conferred on the Special Executive Magistrates. It refers only to the powers conferrable on the Executive Magistrate under the Code but not the powers conferred on them by the Code. We agree with the High Court that there is a broad divide between the powers conferred and powers conferrable by or under the Code on the Executive Magistrate. The powers conferred by the Code on the Executive Magistrates are the powers which are attached to the post of Executive Magistrate. Any person appointed as Executive magistrate is entitled to exercise such powers. The powers located under Sections 107, 108, 109, 110, 129, 145 and 147 etc. The powers conferred by the Code on the Executive Magistrates are the powers which are attached to the post of Executive Magistrate. Any person appointed as Executive magistrate is entitled to exercise such powers. The powers located under Sections 107, 108, 109, 110, 129, 145 and 147 etc. are the instances of such powers. These are not the powers conferrable on the Executive magistrate though they may be conferred on others like the Commissioner of Police under Section 20, sub-section (5). There are other provisions in the Code such as Sections 133, 143 and 144, which may be said to be conferrable powers under the Code. The Executive Magistrate cannot exercise such powers unless they are empowered in that behalf.” 9. The learned Public Prosecutor submitted that Section 133 of the Code should be read with Section 20 of Cr.P.C. Section 20 Cr.P.C. appointed the Executive Magistrates at various levels and they are authorized to exercise the powers under the Code. Therefore, the wording in Section 133 ‘specially empowered’ is nothing to designating the various levels of Executive Magistrates under Section 20. He further submits that by virtue of Section 20, a G.O. has been issued by the State Government, covered by G.O. Ms. No. 287, dt. 24-05-1985, implementing the new provisions of Code of Criminal Procedure, 1973 substituting Tahsildars and Deputy Tahsildars by Mandal Revenue Officers to exercise powers as Executive Magistrates. Therefore, there is no special order required by the Government authorizing Mandal Executive Magistrate to exercise powers under Section 133 of the Code. The decisions rendered by this Court and the Supreme Court clearly indicate that in view of the wording used in Section 133 of the Cr.P.C. unless the Mandal Executive Magistrate is specially empowered to exercise powers under Section 133 of the Code, they are not authorized to pass any order including the impugned order. Therefore, I am not accepting the submissions made by Public Prosecutor that the G.O. Ms. No. 287 empowered the Mandal Executive Magistrate to exercise powers under Section 133 of Cr.P.C. Hence, the impugned order passed by the Mandal Executive Magistrate on 25-03-2006 is liable to be set aside. 10. In the result, the Criminal Revision Case is allowed and the order of Mandal executive Magistrate dated 25-03-2006 is set aside for want of special powers conferred by the Government under Section 133 Cr. 10. In the result, the Criminal Revision Case is allowed and the order of Mandal executive Magistrate dated 25-03-2006 is set aside for want of special powers conferred by the Government under Section 133 Cr. P.C. However, this order shall not be a bar for the District Magistrate or the Sub-Divisional Magistrate to exercise powers under Section 133 of Cr.P.C. to prevent the recurrence of nuisance being caused by the respondent. The Director Institute of Preventive Medicine, Hyderabad, is at liberty to make an application either to the District Magistrate or the Sub-Divisional Magistrate having jurisdiction over the area, in which the manufacturing and packing of drinking water is undertaken, for appropriate orders under Section 133 of Cr.P.C.