Ram Dularey vs State

P.N. Baksi, J.—The applicant has been convicted u/s 7/16 of the Prevention of Food Adulteration Act and sentenced to six months R.I. and fine of Rs. 1000/-by the Chief Metropolitan Magistrate, Kanpur. His conviction and sentence have been confirmed in appeal by the Sessions Judge, Kanpur. Hence this revision.

The prosecution case is that on 30th November, 1975 Sri K.C. Gera, Food Inspector, Nagar Mahapalika, Kanpur was on duty in Mohalla Juhi Kalan, Kanpur city at 10 a.m. Sri Gera found the applicant selling mixed cow-buffalo milk near shop No. 183/38. The milk mixed contained in three containers. The Food Inspector took the sample of milk in accordance with law. One of the sample phials in his possession was sent for analysis. The report of the public analyst disclosed that the sample was deficient in fat contents by 28 per cent and in non-fatty solids by 23 per cent. The sample was judged on the basis of the statutory standard fixed for cow and buffalo milk. After obtaining sanction the applicant was prosecuted and convicted. Both the courts below have held the prosecution case fully established. They have found that the milk of which the sample was taken by Sri Gera from the applicant was adulterated. The accused has, therefore, been convicted and sentenced as above. I do not find any illegality or perversity in these findings of fact, recorded by the courts below.

Counsel for the applicant has argued that Sri Gera was a sanitary Inspector of Harbans Mohal, Kanpur and that he was not authorised to take a sample from the applicant in Juhi Kalan, on the verbal orders of the Nagar Swasthya Adhikari.

On behalf of the State it is argued that on the date of the incident Sri Gera was not only a Sanitary Inspector of Harbans Mohal but the Food Inspector of the entire corporation area and as such he was authorised to take the sample in Juhi Kalan.

Section 9 of the P.F. Act which deals with the appointment of the Food Inspectors runs as follows:

The Central Government or the State Government may, by notification in the official Gazette appoint such persons as it thinks fit having the prescribed qualifications 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 Food Inspector under this section.

A reading of the aforesaid section indicates that the Government as aforesaid has the power to appoint Food Inspectors for such local areas as may be assigned to them.

u/s 2(vii) local area means any area, whether urban or rural, declared by the Central Government or the State Government by notification in the official Gazette, to be a local area for the purpose of this Act.

There can be no doubt a local area may comprise of a Municipal area, a Cantonment area, a Notified area etc. Reading Section 9 of the Prevention of Food Adulteration Act along with Section 2(vii) of the said Act it is clear that the Food Inspector may be appointed by the Central or the State Government for any Municipal, Cantonment or notified area. I find that in exercise of powers u/s 9 of the PF Act (Act 37 of 1954) as amended by PF Act (49 of 1964), Notification No. 1207/XVI-II-722-55 dated April 15, 1968 issued by the Governor, published in the U.P. Gazette part I at page 1687 dated 15th April, 1968 runs as follows:

In supersession of notification No. 10656(iv) XVI-PH-722-1965 dated February 9, 1956 as amended by No. 862 the Governor is pleased to appoint, with effect from March 1, 1965 the following persons as Food Inspectors in Uttar Pradesh, for areas assigned to them as under:

for rural areas including two areas and notified areas.

....

(a) ....

(b) For Nagar Mahapalika and Nagar Palikas-All Municipal Medical Officers of Health, Additional Municipal Medical Officers of Health, Assistant Medical Officers of Health, Medical Officers Incharge Anti Epidemic operation, Chief Sanitary Inspector and Sanitary Inspectors as well as above officers of the Nagar Mahapalika in respect of the areas falling in their respective jurisdictions

....

This notification no doubt appoints Sanitary Inspectors of a Nagar Mahapalika OF Nagar Palikas as Food Inspectors but the area of their operation is restricted to their respective jurisdictions which each of them exercised prior to such appointment. It cannot be doubted that each Nagar Mahapalika or Nagar Palika has several Sanitary Inspectors. Each one of the Sanitary Inspectors is assigned a different ward or area of operation for the discharge of their functions. All such Sanitary Inspectors are authorised by this notification to act as Food Inspectors but their powers to act as such is restricted to that particular area over which they have already exercised jurisdiction as Sanitary Inspectors prior to such appointment. This appears to be reasonable also, otherwise there is bound to be conflict and overlapping of jurisdiction between officers occupying similar post in the Nagar Mahapalika or Nagar Palikas. If it was otherwise intended there was nothing to debar the State Government from wording its notification differently.

It is thus obvious that on the date of the incident when the sample in question was taken from the applicant Sri Gera was a Food Inspector duly appointed u/s 9 of the Prevention of Food Adulteration Act, by the State Government, but the area over which he could exercise jurisdiction was that area alone over which he had already been exercising jurisdiction viz. Har Bans Mohal. It was to get over this difficulty that Sri Gera stated in court that he was given verbal orders by the Nagar Swasthya Adhikari to act as the Food Inspector over the entire corporation Area. In the first place there is no document on the record to show that any such instructions were given to Sri Gera. In the second place I am of the view that the Nagar Swasthya Adhikari had no power vested in him to authorise such inspections. Section 9 as already stated contemplates an appointment by the Provincial Government, of the Food Inspector together with the specification of a local area over which he is authorised to exercise jurisdiction. This section makes no provision whereby such a power limiting the area of operation by the State Government can be delegated to or exercised by the Health Officer, with respect to Sanitary Inspectors who are conferred the powers of the Food Inspector under the aforesaid notification. In my opinion, therefore, even assuming that oral instructions were given by the Health Officer, Sri Gera had no jurisdiction to act outside the area of Harbans Mohal and to take a sample of food in Juhi Kalan, for which he never was the Sanitary Inspector. In my opinion, therefore, Sri Gera had no jurisdiction to take the sample. As such the entire proceedings are vitiated in law.

This revision application is accordingly allowed and the conviction of the applicant for the offence for which he had been charged and the sentence imposed thereunder are set aside. The fine if deposited shall be returned to him.