Gulab Chand vs State and Another

P.N. Shinghal, J.—Petitioner Gulab Chand has been convicted by Municipal Magistrate, Ajmer, on September 10, 1962, of an offence u/s 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereafter referred to as the Act) and sentenced to rigorous imprisonment for 1 month and a fine of Rs. 200/-. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for 2 months. The petitioner went up in appeal to Sessions Judge, Ajmer, but without success, and he has therefore filed the present revision petition.

The facts of this case are not in dispute. The petitioner is a confectioner and used to sell sweets at his shop in Karakka Chowk, Ajmer city. He professed to prepare the sweets with pure ''ghee''. Food Inspector Kartar Singh P. W. 1 went to the petitioner''s shop on March 10, 1962, at about 6-30 p.m., and gave him a notice (Ex. p-1) for obtaining a sample of the ''ghee'' which was there at that time. The sample was taken by the Food Inspector who paid Rs. 3 nP 15 an its price to the petitioner, one of the samples was sent to the Public Analyst for examination. Ex. P-5 is the report of the Public Analyst according to which the sample was found to be adulterated. The petitioner was therefore prosecuted by the Municipal-Prosecuting1 Inspector, Ajmer, who, it is claimed1, had been authorised by the Administrator of the Ajmer Municipal Council to exercise the powers u/s 20 of the Act. On trial, the learned Magistrate convicted and sentenced the petitioner as mentioned earlier.

Food Inspector Kartar Singh P. W. 1 was the only-witness examined on behalf of the prosecution. The accused took the plea that he had purchased the ''ghee'' from M/s Ghanshyamdass Bholaram and that he had not made any adulteration in it. He produced certain receipts evidencing the purchase of ''ghee'' by him and examined four witnesses in his defence.

It has Seen argued by the learned Counsel to the-petitioner that the trial Court could not have taken cognizance of the offence because the Municipal Prosecuting Inspector had no authority to prosecute the accused, it has been urged that u/s 20 of the Act the prosecution could lie instituted by, or with the written consent of, the State Government or a local authority or a person authorised In that behalf by the State Government or a local authority". It is not the case that the prosecution was launched by the State Government and so the question for decision is whether it has been instituted by the local authority or by a person authorised by the State Government or the local authority.

Mr. Bhargava has contended that the Municipal Council, which was the local authority for the area within the meaning of Section 2(viii) of the Act, had already been superseded and that there could be no question of the prosecution being launched by or with the consent of that authority in this case. He has placed reliance on The State of Bombay Vs. Parshottam Kanaiyalal, State v. Mohammed Bux 1963 Raj LW 43 , City Corporation of Trivandrum Vs. V.P.N. Arunachalam Reddiar and Another, and Chairman Municipality Vs. Mohan Tewari, to support his argument.

Learned Assistant Government Advocate has, in reply, advanced a two-fold argument. Firstly, he has urged that the Municipal Council is a body corporate and has a perpetual succession u/s 8 of the Rajasthan Municipalities Act, 1959 and that it therefore continued to remain in existence even after its supersession. The Administrator having been appointed by the State Government u/s 295(5) (b) of the Rajasthan Municipalities Act, 1959, to exercise all the powers and duties of the Municipal council, it has been contended that he could exorcise the power u/s 20 of the Act and that the Municipal Prosecuting Inspector having been authorised by him to institute the prosecution, the argument that the prosecution has not been made in accordance with the law is not tenable.

Secondly, learned Assistant Government Advocate has argued that the State Government issued a notification on January 23, 1961 (appearing in State Gazette, Extraordinary dated January 27, 1961) u/s 20 of the Act authorising the Administrators appointed under the Rajasthan Municipalities Act, 1959, "to institute prosecution for an offence under the Prevention of Food Adulteration Act, 1954, or to give consent for such prosecution". Reliance has been placed on Raja Ram Chandra Prasad Vs. Patna City Municipality, Jagneswar Sen Gupta v. Gopal Chandra Saha AIR 1961 Tri 18 and Jagneshwar Sen Gupta v. Bimal Kanti Paul AIR 1961 Tri 52, in support of the first or these two arguments.

The term local authority has been defined in Section 2(VII) of the Act as follows:

2 (viii) ''Local authority means in the case of--

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;

(d) any other local area, such authority as may be prescribed by the State Government under this Act.

We are concerned with Clause (a) above, because Ajmer is admittedly a municipality and had a municipal council which had, however, been superseded before this case was instituted in the trial Court.

The argument of Mr. Bhargava is that in the case of a municipality, a municipal board or council could alone be construed to be the local authority and that on its supersession there could be no local authority in the area within the meaning of Section 2(viii) of the Act which could exercise the power to prosecute the accused. This argument does not, however, bear scrutiny.

u/s 8 of the Rajasthan Municipalities Act, 1959 the Ajmer Municipal Council is a body corporate and has a perpetual succession. It must therefore be held that it continued to be in existence even on its supersession. All the powers and duties of the superseded municipal council are, u/s 295 (5) (b) of the Rajasthan Municipalities Act, exercised by the Administrator appointed by the State Government for the purpose. It is not in dispute that an Administrator was appointed in the present case and there is therefore no reason why he should not be considered to be the local authority for the Ajmer Municipality.

The above conclusion will remain unaffected even if it is assumed that the Administrator succeeded the Municipal Council on its supersession. Section 18 of the General Clauses Act, 1897, which reads as follows, will then be applicable,--

Successor.--(1) in any Central Act or Regulation made after the commencement of this Act, it shall be-sufficient, for the purpose of indicating the relation of a law| to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations, 2....

The Prevention of Food Adulteration Act is a Central Act and the Municipal Council .being a corporation having perpetual succession, it was sufficient to make a reference to it Section 2(viii) of the Act while defining the term "Local authority" for purposes of the Act. It would follow that the relation of that legal provision to the Administrator, as the successor of the Municipal Council, would be the same as to the Municipal Council, after its supersession.

Thus, in either view of the matter, the Administrator must be held to be the Local authority of the Municipality within the meaning of Section 2(viii) of the Act. He had, therefore, the power, u/s 20 of the Act, to authorise any person to launch a prosecution under the Act. As the Municipal Prosecuting Inspector had admittedly been authorised by the Administrator under that section, the prosecution of the accused must be held to be in accordance with the law. The State of Bombay Vs. Parshottam Kanaiyalal, and City Corporation of Trivandrum Vs. V.P.N. Arunachalam Reddiar and Another, cited by Mr. Bhargava are not really of any avail for a decision of this point, as the first two of these cases only explain what authorities can sancuon the prosecution u/s 20 of the Act and in City Corporation of Trivandrum Vs. V.P.N. Arunachalam Reddiar and Another, it has further been held that a sanction granted by the Commissioner of the Corporation who had not been authorised would be invalid u/s 20 of the Act. So far as Chairman Municipality Vs. Mohan Tewari, is concerned, it is. difficult to appreciate its reasoning as it is not known whether the provisions of the Bengal Municipal Act were similar to those of the Rajasthan Municipalities Act, 1959 on the relevant point, but it may be said that unlike the Bengal Act, the Rajasthan Municipalities Act has received the assent of the President.

As I have reached the conclusion that the Administrator was the Local authority for "the Ajmer Municipality, it is not necessary to consider the other argument that he had been authorised by the State Government u/s 20 of the Act to institute the prosecution or to give consent thereto.

Having put aside the challenge to the jurisdiction of the trial Magistrate, I shall proceed to consider Mr. Bhargava''s other argument that this could not at all be said to be a case of a sale of ''ghee'' by the accused to the Food Inspector. It is not the case of the prosecution that the accused was a ''ghee'' vendor, for it has categorically teen stated that he was a confectioner and held a licence for the sale of sweets. It is also not the case of the prosecution that the accused voluntarily sold the samples of ''ghee'' to the Food Inspector as the Inspector has stated that he first served a notice (Ex. p-1) on the accused demanding the samples and then took the samples for analysis. The question therefore is whether the delivery of the ''ghee'' under these circumstances amounted to a sale under the Act.

Mr. Bhargava has strenuously urged on behalf of the petitioner that a sale could only be a voluntary transaction and that compulsory acquisition of the ''ghee'' u/s 10(2) of the Act, on pain of prosecution u/s 16(1)(b) thereof, does not amount to sale u/s 2(xiii). He has placed reliance on Fort Food Inspector Vs. Parameswaran Chettiar, Akhoy Kumar Ghose Vs. Corporation of Calcutta, Public Prosecutor v. Srinivasa Rao AIR 1938 Mad 541 and Dr. Makhanlal Bhowmik Vs. Ram Bhakat Sharma and Another, .

Learned Assistant Government Advocate has, however, argued that the delivery of the ''ghee'' by the accused for analysis amounts to a "sale" within the meaning of section 2(xiii) of the Act as the definition contained in that clause includes the sale of any article of food for analysis. He has placed reliance on State Vs. Amratlal Bhogilal, , The Public Prosecutor Vs. Kandasamy Reddiar, , Public Prosecutor Vs. Dada Haji Ebrahim Helari, , Dewan Singh v. Emperor AIR 1937 Lah 702, Webhandas Hollaram v. Emperor AIR 1939 Sind 337 -and Arumughom Chettiar v. Food Inspector, Mattancherry, Municipality 1962 (1) Cri U 154 .

It appears that a decision of the point will turn on, the facts of the case. The accused did not admittedly make a voluntary sale of the ''ghee'' to the Inspector and it is not a sale in that sense. A question would have arisen whether the compulsory acquisition of the ''ghee'' for analysis under subjection (1) or Sub-section (2) of Section 10 of the Act could be said to amount to a sale u/s 2(xiii). It is however not necesesary for me to pronounce on the point as I am not persuaded that the Inspector could be said to have acquired the ''ghee'' in this case under any of these sub-sections. Under Sub-section (1) the Food Inspector had the power to take samples of any article of food from--

(i) any person selling such article;

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him....

It has not been alleged, or proved, that the sample Or ''ghee'' was taken from the accused in any of these circums-lances. The ''ghee'' was found in his premises and It is not in dispute that it was meant for the preparation of sweets. The other provision which authorised the Inspector to take the sample is Sub-section (2) of Section 10 which runs as follows:

10(2). Any Food Inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis.

Here again, it is not the allegation that the ''ghee'' had been manufactured at the shop of the accused where if was found or that it had been stored or exposed for sale Were. It would follow that the Food inspector could not acquire the sample under sub-sections (1) and (2) of Section 10 or the Act. It is therefore immaterial that the Inspector unilaterally and voluntarily paid the price of the ''ghee'' to the accused under Sub-section (3) of that section. Thus even if it is assumed that taking a sample of ''ghee'' under subsections (1) and (2) of Section 10 of the Act for analysis amounts to a sale u/s 2(xiii) of the Act, it cannot still be held that, in the instant case, this was so, and the acquisition of the ''ghee'' could not be said to amount to a sale. It may be that u/s 10(6) of the Act the Inspector could seize the ''ghee'' which he found in the possession of the accused as it was to be employed for the purpose of preparing adulterated sweets, but such seizure could not, by any stretch of imagination, be said to amount to a sale u/s 2(xiii) of the Act for there was no question of paying any price for the ''ghee'' in that case.

I would therefore hold that the prosecution has not at all succeeded in proving that the accused sold the ''ghee'' to the Inspector so as to be liable for punishment u/s 16(1)(a) of the Act and he is entitled to an acquittal in respect of that charge. The accused could perhaps be prosecuted for an offence u/s 16(1)(d) of the Act as it was alleged that he was a manufacturer of sweets and had adulterated ''ghee'' in his possession, and in the premises occupied by him, but he has not been prosecuted or tried for that offence and I cannot alter the conviction from Clause (a) of Section 16(1) of the Act to Clause (d) thereof.

The revision petition is allowed and accused Gulab Chand is acquitted of the offence u/s 16(1)(a) of the Prevention of Food Adulteration Act. This acquittal will not, however, have the effect of preventing the prosecution of the accused for the offence u/s 16(1)(d) of the Act if the competent authority decides to prosecute him for it.