Nirmal Singh vs Union Territory, Chandigarh

Harbans Singh Rai, J.

This order will dispose of Criminal Misc. No. 1541M of 1990 as well as Criminal Misc. Nos. 7086M and 7841M of 1987, 2785M, 2786M, 2787M, 2788M, 4065M. 4877M, 6252M, 6664M, 7931M, 8355M and 8943M of 1988, Criminal Revision No. 601 of 1989, Crl. Misc. No. 732M, 109OM, 1801M, 2012M, 2831M, 3339M, 5260M, 5291M, 7717M, 8254M and 10844M of 1989 and 807M, 1010M, 1842M, 1929M, 1995M, 2158M, 2631M, 2756M, 3214M, 3217M, 3371M, 3528M, 3588M, 3537M, 3659M, 3904M, 4075M, 4119M and 4875M of 1990 as common questions of law are involved in all these cases.

The facts of these cases need not be mentioned as only law points are involved which are enumerated as under :

(i) Whether the Food Inspectors who had taken samples of adulterated food, had not been validly appointed by the appropriate Govt. under Section 9(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act).

(ii) Whether the Inspectors who instituted the prosecution. in each case, had not been duly authorised to initiate prosecution under Section 20(i) of the Act.

The learned counsel for the petitioners has relied on unreported decision of this court in Civil Writ Petition No. 3380 of 1985 Pawan Kumar v. The Chandigarh Administration and another, in support of their contention.

I have heard learned counsel for the parties and gone through the record and the relevant provisions of the Act. The provisions of Sections 9(1) and 20(1) of the Act are as follows :

"9. Food Inspector(1) The Central Govt. or the State Govt. may, by notification in the Official Gazette, appoint such persons as it thinks fit. having the prescribed qualification to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government as the case may be :

Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section."

Cognizance and trial of offences(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.

In all the cases, notifications, similar to the one quoted below had been issued and published in the Chandigarh Administration Gazette :

"Chandigarh Administration, Health Department Notification The 9th February, 1984. No. MHIII84/1425In exercise of the powers conferred by. subsection (1) of Section 9 of the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954) the Chief Commissioner Chandigarh is pleased to appoint the following Sanitary Inspectors as Food Inspectors for the Union Territory of Chandigarh.

Shri Vireshwar Singh.

Shri M.K. Sharma

Shri Balbir Singh

P.D. Vashishat,

Finance Secretary

Chandigarh Administration

Notification dated 27101979. No. 7632MHIII79/16991 In supersession of the Chandigarh Administration. Health Department Notification No. 2859MHIII78/9174 dated the 5th May, 1978 and in exercise of the powers conferred by subsection (1) of Section 20 of the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954) the Chief Commissioner Chandigarh is pleased to authorise the following persons to institute prosecution for offences under the aforesaid Act within the Union Territory Chandigarh:

Shri Kuldip Singh Sanitary Inspector Chandigarh Administration.

Shri Hardial Singh Sanitary Inspector Chandigarh Administration.

Sd/ Ram Gopal,

Finance Secretary,

Chandigarh Administration".

Mr. Anand Swaroop, Senior Advocate, learned counsel for Union Territory Chandigarh has contended that in every case the sample was taken by the Food Inspector named in the relevant notification and the prosecution in Court was initiated by the person named in the said notification. He further contended that at all the relevant times, the Administrator of the Union Territory of Chandigarh appointed by the President under Article 239 of the Constitution of India was called the Chief Commissioner and that the Chief Commissioner/Administrator of the Union Territory of Chandigarh is the Central Government. He has placed reliance on Section 3(8)(iii) of the General Clauses Act, 1897 in support of his arguments. He has also relied upon Goa Sampling Association v. General Superintendence Co. of India Pvt. Ltd. and others, AIR 1985 Supreme Court 357 wherein it has been held as under :

"The High Court after referring to the definitions of the aforementioned three expressions as set out and discussed herein first observed that on a careful reading of the definition, it appears that in relation to the administration p.183. thereof acting within the scope of the authority given to him under Article 239 of the Constitution is the Central Government. So far there is no dispute. The High Court then observed that it must follow that the Administrator is the State Government in so far as the Union Territory is concerned and it is so provided in the definition of the State Government in Section 3(60) of the General Clauses Act. The High Court fell into an error in interpreting clause (c) of Section 3(60) Which upon its true construction would show that in the Union Territory there is no concept of State Government but wherever expression `State Government is used in relation to the Union Territory, the Central Government would be the State Government. The very concept of State Government in relation to Union Territory is obliterated by the definition."

A Division Bench decision of this Court reported in Chief Commissioner, Union Territory Chandigarh and others v. Sushil Flour, Dal & Oil Mills, 1983(2) Indian Law Reporter page 183 has also been relied upon on behalf of Union Territory.

In view of the law laid down in Goa Sampling Employees Association''s case (supra), I do not find any force in the arguments of learned counsel for the petitioners that the Food Inspector who took the sample in any of the cases was not appointed by the appropriate Government under Section 9(1) of the Act and that the prosecution was not initiated by a person duly authorised to do so under Section 20(1) of the Act. I, therefore, dismiss all the petitions.

The parties, through their counsel, are directed to appear in the trial court on June 15, 1980.