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Jagneshwar Sen Gupta Vs. Bimal Kanti Paul - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantJagneshwar Sen Gupta
RespondentBimal Kanti Paul
Excerpt:
.....over of the administration of the municipality on account of a grave emergency as a result of the municipal commissioners resigning en bloc and that in the case of such resignation of the municipal commissioners the proper procedure for the chief commissioner was not to take over the administration under section 292 but to order a fresh election and that the circumstances which existed did not authorise the appointment of an administrator under section 29s (kha). 10. it is true that the notification is not very happily worded and does not give the reasons for the supersession, though it refers to section 292 of the municipal act, it would have been better if the chief commissioner had mentioned the reason or reasons for his opinion. it would have been better if that had been made clear..........had therefore to take over the administration of the municipality under section 292 of the tripura municipal act and so he appointed the district magistrate, tripura as the administrator of the said municipality with immediate effect for a period of one year pending fresh elections. this notification though only for a period of one year was extended and the district magistrate has continued to be the administrator year by year till this day and was the administrator on the date when he gave the sanction to the food inspector to file the prosecution under section 20(i).6. now the argument for the respondent was first that the notification did not amount to a supersession of the commissioners as contemplated under section 292 of the tripura municipal act, and further that even if.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is an appeal against the acquittal of the respondent by the Sessions Judge in Criminal Appeal No. 51 of 1959.

2. The complainant-appellant, the Food Inspector of the Agartala Municipality went to the shop of the respondent on 5-11-58 and took samples of the mustard oil that he was storing for sale. On the said sample being examined by the Public Analyst of West Bengal it was found to be adulterated with ground-nut oil. Thereupon the appellant sought the permission of the Administrator of the Agartala Municipality (which had been superseded) to prosecute the respondent and written consent having been obtained the complaint was filed under Section 16(I)(i) of the Prevention of Food Adulteration Act. 1954. The respondent was charged under the said section.

3. In the course of the trial which followed the respondent did not contest the fact that the mustard oil was adulterated. His main contention in the Magistrate's Court as well as in the appeal was that the Administrator of the Agartala Municipality had no power to sanction the prosecution of the respondent under Section 20 of the Prevention of Food Adulteration Act. The Magistrate held that the Administrator had the power as, in his opinion, the Administrator was the local authority within the meaning of Section 2(viii) of the Prevention of Food Adulteration Act and he therefore convicted the respondent and sentenced him to pay a fine of Rs. 500/- and in default to rigorous imprisonment for two months.

In the appeal filed by the respondent, the learned Sessions Judge came to the opposite conclusion and held mainly relying on the decision 'Administrator, Howrah Municipality v. Messrs. Byron

Co.' reported in 1958 Cr. LJ 169(2) (Cal) which was a decision under Section 554 of the Bengal Municipal Act that the Administrator had no such power as he was not the local authority within the meaning of Section 20(1) of the Prevention of Food Adulteration Act and he held the prosecution to be unauthorised and directed the acquittal of the respondent. Against that order in appeal, this further appeal against acquittal was filed.

4. The only question which arises in this appeal is whether the Administrator had the power under Section 20(1) of the Prevention of Food Adulteration Act to sanction the prosecution. In a similar case which came up before this Court in Jagneswar Sen Gupta v. Copal Chandra, Criminal Appeal No. 9 of 1059 : AIR 1961 Tripura 18 wherein also the same Magistrate had held that the Administrator had the power to sanction the prosecution under Section 20(1)' and the same Sessions Judge had reversed the said finding, I held agreeing with the Magistrate that Administrator was the local authority under Section 2(viii) of the Act after the supersession of the Board of Commissioners and hence the sanction was properly given.

I reversed the finding of acquittal and convicted the accused in that case. The learned Advocate appearing for the respondent in this case very ably argued the case and raised certain points which were not raised in the previous case and requested me to differ from my finding in the previous case and hold that the sanction was not valid. Hence I' have considered the matter afresh, in the light of the arguments advanced in this case.

5. The Agartala Municipality was superseded by the Chief Commissioner of Tripura by a notification dated 25-4-1955. What the notification stated was that a grave emergency had arisen as a result of the Municipal Commissioners, having resigned en bloc, that the Chief Commissioner had therefore to take over the administration of the Municipality under Section 292 of the Tripura Municipal Act and so he appointed the District Magistrate, Tripura as the Administrator of the said Municipality with immediate effect for a period of one year pending fresh elections. This notification though only for a period of one year was extended and the District Magistrate has continued to be the Administrator year by year till this day and was the Administrator on the date when he gave the sanction to the Food Inspector to file the prosecution under Section 20(I).

6. Now the argument for the respondent was first that the notification did not amount to a supersession of the Commissioners as contemplated under Section 292 of the Tripura Municipal Act, and further that even if the supersession was valid, the appointment of the District Magistrate by office as the person appointed to perform the duties of the Municipal Board was again not as provided under Section 293(kha) of the Tripura Municipal Act.

The next step in the argument was that even in the District Magistrate was validly appointed under Section 293(kha) to take over the Municipality, he will not be the local authority within the meaning of Section 2(viii) of the Prevention of Food Adulteration Act and that he will not get the power to exercise any rights under the Prevention of Food Adulteration Act and that therefore the sanction given by him cannot be valid.

7. The Tripura Municipal Act is in Bengali language and the translations of some of the relevant sections have been supplied, Section 292 of the Act reads as follows:

292. of in the opinion of the Raj Mantri the Minister of State the Commissioners have proved themselves inefficient or have made persistent default in the discharge of their duties imposed on them by the Act or by any other law or have exceeded their powers or abused the same, the Raj Mantri may, by an order with reasons for doing so, published in the official gazette, declare such Commissioners to be inefficient or in default Or to have exceeded or abused their powers as the case may be and super sad them for a period specified in the order:

Provided that except in case of misappropriation of Municipal funds or persistent default in the performance of their duties by the Commissioner, the powers under this section shall not be ordinarily exercised by the Raj Mantri until action has been taken under Section 291.

8. After the integration of Tripura with the Indian Union, the Chief Commissioner exercised the powers of his Highness the Maharajah under Section 5 of the Tripura Administration Order, 1949. Hence the powers exercisable under the Tripura Municipal Act by the Raj Mantri were exercisable by the Chief Commissioner. This was not disputed. But what was argued was that the notification dated 25-4-1955 did not state that in the opinion of the Chief Commissioner, the Commissioners have proved themselves inefficient or have made persistent default or have exceeded or abused their powers and the Chief Commissioner did not give the reasons in the said notification for superseding the Commissioners and hence the said notification itself was invalid, as the conditions necessary for the supersession have not been shown to have existed.

It was also pointed out that the notification did not specifically state that the Commissioners have been superseded but only stated that the Chief Commissioner has therefore to take over the administration. It was pointed out that the Chief Commissioner has not stated in the notification that lie has superseded the Commissioners and has taken over the administration. Hence it was stated that the notification did not comply with Section 292 of the Act.

9. The notification refers to a grave emergency as having arisen as a result of the Municipal Commissioners' resigning en bloc. It was pointed out again that Section 292 did not authorise the taking over of the administration of the Municipality on account of a grave emergency as a result of the Municipal Commissioners resigning en bloc and that in the case of such resignation of the Municipal Commissioners the proper procedure for the Chief Commissioner was not to take over the administration under Section 292 but to order a fresh election and that the circumstances which existed did not authorise the appointment of an Administrator under Section 29S (kha).

10. It is true that the notification is not very happily worded and does not give the reasons for the supersession, though it refers to Section 292 of the Municipal Act, It would have been better if the Chief Commissioner had mentioned the reason or reasons for his opinion. To take over the administration, he had to find that the Commissioners were inefficient or made persistent default or acted in excess or abuse of authority and he had to state in the notification that the Commissioners have been superseded.

But it was not disputed before me that the Commissioners were, in fact, superseded by the said notification and the Administrator was appointed to perform and exercise the duties and powers of the Commissioners and that he has, in fact, been exercising his duties and powers all these years. I also find that in the Sessions Court in appeal the respondent did not raise this point and admitted that the supersession of the Municipality and the appointment of the Administrator were quite in accordance with law. This point is raised for the first time in this Court.

11. I am really at a disadvantage in dealing with this question as the Tripura Municipal Act is in the Bengali language and it being a very lengthy enactment consisting of hundreds of sections it has not been possible to translate the entire enactment and to place the same before me. In that case it would have been possible to know the procedure to be adopted by the Chief Commissioner in the case of a resignation en bloc by all the Commissioners.

It would have enabled me to decide whether the use of Section 292 under such circumstances was the only power which could be exercised by him to carry on the administration of the Municipality. It was however mentioned at the bar that there was no other procedure provided in the case of a resignation, en bloc by all the Commissioners. In one sense it can be said that such en bloc resignation by the Commissioners amounted to a. persistent default to the performance of their duties by the Commissioners and that therefore the Chief Commissioner was-right in exercising his powers under Section 292.

It can also be said that the reasons for die supersession was the grave emergency arising out of the said persistent default by the Commissioners. It would have been better if that had been made clear in the notification. It is too late in the day however to question the validity and the fact of the supersession five years after the event and that too for the first time in this Court to support the order of the Sessions Judge who has himself accepted the validity and the fact of the supersession.

12. Next it was pointed out that Section 293(kah) provided that from the date of the order of supersession the Commissioners shall vacate their offices as such Commissioners. From this it was argued that Section 293 was not to come into operation in the case of a resignation en bloc' as it was the very order of supersession which was to make the Commissioners vacate their offices and not their resignation en bloc. In the latter event, the vacating of the office had already taken place before the supersession, But that argument did not appeal to me much, because a resignation to become valid must be accepted and the acceptance of the resignation in this case took place by the passing of the order of supersession. Under the circumstances, I am not prepared to say (that the notification was not valid under Sections 292 and 93.

13. The next contention was that Section 293(kha) contemplated the appointment of 'a person' and that this indicated that a person has to be appointed by name and not by virtue of his office and that the Chief Commissioner if he was appointing the District Magistrate should have appointed the then District Magistrate by name and that he should have passed fresh orders whenever the person of the District Magistrate changed. I am not prepared to limit the meaning of the word 'person' as person by name. There is nothing wrong in a person being appointed by the name of the office which he holds when the intention was to appoint the holder of the office to the post. 'Person' in the technical or legal sense can be a natural person like a human being q or an artificial person like the holder of an office or a corporation.

14. Next we come to the question whether the Administrator will come within the meaning of the words 'a local authority'' within Section 20(1) of the Prevention of Food Adulteration Act. Under Section 20(1) a local authority has to give the written consent for the prosecution. Local authority has been defined under Section 2(viii) of the Act. Local authority in the case of a local area means a Municipality, Municipal Board or Municipal Corporation. In our present case it will mean the Commissioners because the Commissioners formed the Municipality of Agartala.

It cannot be said that because the word 'Commissioners'' are not used, but the word Municipality, the 'Commissioners' will not become the local authority. Now the question is whether on the Supersession of the Commissioners the Administrator will step into their shoes within the meaning of Section 2(viii) and become the local authority to sanction the prosecution. It was on this matter that the learned Sessions Judge differed from the Magistrate and came to the conclusion that the Administrator will mot be the local authority.

15. In coming to that conclusion he relied on the decision, 1958 Cr. LJ 169(2) (Cal). That was a case where the Howrah Municipality was superseded under Section 554 of the Bengal Municipal Act, 1932 and an Administrator was appointed by the Provincial Government to exercise and perform the powers and duties of the Chairman or Commissioners of the Howrah Municipality. The authorisation to prosecute was given by the Administrator.

In dealing with that question the Calcutta High Court stated that under Section 554 of the Bengal Municipal Act as it then stood the powers and duties which may under the provisions of the Bengal Municipal Act or any rule or by law made thereunder be exercised and performed by the Chairman or Commissioners, shall during the supersession be exercised by the Administrator, but that it did not

authorise the Administrator to exercise the powers which might be exercised by the Chairman and the Commissioners under any Act other than the Bengal Municipal Act.

16. The learned Sessions Judge relied on this decision and held that Section 293 of the Tripura Municipal Act corresponded to Section 554 of the Bengal Municipal Act. Be found that there was no such limitation in Section 293(kha) of the Tripura Municipal Act by which the Administrator of a superseded Municipality could exercise only the powers and duties under the provisions of the Tripura Municipal Act or any rule or bye-law made thereunder as in the case of Section 554 of the Bengal Municipal Act.

But his argument was that the Administrator could Exercise only such powers and duties in other enactments which were in existence at the time of the supersession and that the Prevention of Food Adulteration Act became law only after such supersession. The Commissioners or the Chairman did not exercise the functions under the Prevention of Food Adulteration Act On the date of supersession and so the Administrator did not get the powers and duties under an enactment which came into existence after the supersession.

17. I find myself unable to agree with this interpretation of Section 293 and I agree with the Magistrate in his interpretation. What Section 293(kha) states is that all the powers and duties which might be, performed or exercised by the Chairman or the Commissioners shall be performed or exercised by the person appointed on supersession. A logical interpretation of this will mean that all such powers and duties which might have been exercised by the Chairman or Commissioners if they had been in office on the date when this sanction was given by the Administrator could be exercised by the Administrator after the supersession.

Otherwise Section 293(ka) will be reduced to an absurdity. In these days various enactments giving powers to Municipalities and Commissioners are passed and come into force from time to time. The interpretation of the Sessions Judge will mean that if any enactment came into force giving such powers subsequent to the supersession such powers could be exercised by the Commissioners or Chairman only after the supersession is cancelled and fresh Commissioners and Chairman are elected.

18. Section 39 of the Tripura Municipal Act provides that the Chairman shall be competent to exercise all the powers vested on the Commissioners by the Tripura Municipal Act or by any other law. The other law or laws may have come into existence after the Tripura Municipal Act was enacted. On the enactment of such other laws the Chairman will get the powers under Section 39. Again under Section 293(kha) the duties and powers which the Chairman might have exercised or performed devolved on the Administrator.

Thus when the Prevention of Food Adulteration Act came into force after the supersession the powers and duties which the Chairman might have exercised under the Prevention of Food Adulteration Act devolved on the Administrator and he became the local authority who could sanction the prosecution under Section 20(1) of the said Act. Thus the written consent given by the Administrator was quite valid and the interpretation of the Sessions Judge has to be held to be wrong.

19. It followed therefore that the conviction of the respondent by the Magistrate was quite proper and that the acquittal of the respondent by the

Sessions Judge was wrong. It was lastly argued for the respondent that there were no compelling reasons in this appeal against acquittal which should make me interfere with the acquittal, even if I held that the sanction was proper. But I am unable to agree. On the merits of the case, the respondent had no defence at all even in the Magistrate's Court. He did not dispute that the mustard oil was adulterated.

He was therefore guilty under Section 7 of the Prevention of Food Adulteration Act of storing adulterated food in contravention of the provisions of the Act and he was therefore liable under Section 16(1) of the Act for the penalty imposed upon him. Such adulteration is a very serious offence. The acquittal of the respondent by the Sessions Judge was the result of the wrong view regarding the written consent given by the

A person guilty of such a serious offence cannot be allowed to get off as a result It is necessary that I must interfere against the acquittal.

20. The acquittal of the respondent is therefore set aside and he is convicted under Section 16(1) of the Prevention of Food Adulteration Act and sentenced to pay a fine of Rs. 500/- as directed by the Magistrate and in default to undergo rigorous imprisonment for two months. The fine, if realised, shall be paid to the Administrator of the Agartala Municipality.


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