Emperor vs Bharat Prasad Singh

Agarwala, J.—This is an appeal by the Local Government against an order of the Sessions Judge of Cuttack reversing an order of the Magistrate of Cuttack who convicted one Bharat Prasad Singh in respect of an offence under S. 186, Penal Code.

The facts alleged were that Dr. Sarat Chandra Misra, the Sanitary Inspector of the Cuttack Municipality went to the shop of Bharat Prasad on 24th April 1934, for the purpose of inspecting and examining the food in the confectionery''s shop which belonged to the accused. The Sanitary Inspector examined the contents of the shop and came to the conclusion that some of the sweets and oil in the shop were unfit for human consumption. He thereupon seized it and directed the brother of the accused, who was present at the shop, to take the tins of of oil to the municipal office. The brother of the accused declined to do so and went to fetch the accused who was absent. When the accused arrived, he was requested by the Sanitary Inspector to take the tin of oil to the municipal office, but he declined to do so. He then locked up his shop and appears to have used abusive language to the Inspector. These were the facts as found by the trial Court and on these facts he was convicted under S. 186. The learned Sessions judge reversed the conviction on the preliminary ground that it had not been proved that the Sanitary Inspector was a public servant within the meaning of the Penal Code. The learned Sessions judge pointed out that the authority under which the Sanitary Inspector claimed to have been authorized to inspect the shop had not been produced. With regard to this point it appears from the evidence of the Sanitary Inspector that he deposed as to his appointment and to the authorization from, the District Magistrate to inspect shops in the town and actually produced a written authority which was shown to the Court, but not kept on the record. If the prosecution, relied on this written authority as the authority of the Sanitary Inspector it should have been proved, marked as an exhibit and kept on the purpose of enabling the appellate Court to inspect it. There are other difficulties in the case. It appears that the Cuttack Municipality has been superseded. The result of that supersession is that the office of the Municipal Commissioner is vacated. Under Cl. (b), S. 336 (1) the Local Government is empowered to direct the powers and duties of the Commissioners to be exercised and performed during the period of supersession by such person or persons as the Local Government may appoint. The fact of the supersession of the Municipality was not proved nor was it proved who was the person or persons who had been directed by the Local Government to exercise, the powers and perform the duties of the Commissioner during the period of supersession.

The learned Government Advocate points out that the Court could take judicial notice of the fact of supersession of the Municipality and that under Cl. 7, S. 57 the Court could also take judicial notice of the accession of the District Magistrate to the office of the Commissioners. Even if all this be as Mimed, there is still a further and fatal difficulty in the case. S. 235, Municipal Act of 1922, empowers the "Commissioners or any person authorized by them in that behalf," to enter and inspect any building or shop used for the sale or storage of articles intended for human consumption and to inspect and examine any article of food or drink which may be therein. It will be noticed that this section merely authorizes the "inspection and examination" and not the seizure of such articles of food or drink as may be found in a shop which the Commissioners enter. There is no power under that section to seize any of the articles. The following S. 236 provides that when, in the course of inspection under S. 285 an article of food appears to be intended for human consumption and to be unfit therefor "the Commissioners" may seize the same and produce it before a Magistrate, or, if the owner of the article consents, may destroy it. It will be noticed that under this section it is the Commissioners alone who may seize and remove articles unfit for human consumption and not, as in the case of S. 285, any person authorized by the Commissioners. The learned Advocate concedes that in this case the Sanitary Inspector was not a person authorized to seize the sweets and oil which in the opinion of the Sanitary Inspector were unfit for human consumption. It may be mentioned that the Sanitary Inspector could have applied for a warrant under S. 287, but did not do so.

The evidence of the Sanitary Inspector discloses that no objection was taken to the inspection and examination of the contents of the shop and that objection was only taken when it was sought to seize the oil. As the Sanitary Inspector was not authorized to seize the oil, the owner of the shop was within his rights in declining to allow the oil to be taken from his shop. The conviction of the accused person by the trial Court was therefore illegal and the judgment of the appellate Court reversing the conviction must be confirmed. This appeal is dismissed.

Varma. J.

I agree