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Public Prosecutor (Andhra Pradesh) Vs. Narkidimilli Srirambhadrayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal Nos. 138 to 150, 168 to 172 and 403 and Criminal Revn. Case Nos. 173 and 261 to 266
Judge
Reported inAIR1960AP282; 1960CriLJ569
ActsPrevention of Food Adulteration Act, 1954 - Sections 9, 12 and 20; General Clauses Act, 1897 - Sections 15; Code of Criminal Procedure (CrPC) , 1898 - Sections 39(1)
AppellantPublic Prosecutor (Andhra Pradesh)
RespondentNarkidimilli Srirambhadrayya and ors.
Appellant AdvocateR.V. Rama Rao, Public Prosecutor
Respondent AdvocateA. Rama Rao, ;G. Balaparameswara Rao, ;K. Raghavarao, ;J.A. Narasimham and ;S. Madhavarao, Advs.
Excerpt:
.....clauses act, 1897 and section 39 (1) of criminal procedure code, 1898 - validity of appointment of sanitary officer was questioned - section 15 of general clauses act empowers appointment of person or office to execute function under central act - no need of authorization of person to hold office under act of 1954 - under section 9 appointment can be made by virtue of office only - appointment valid. - - the fact that it is both by name as well as in virtue of his office would not make the special empowerment any the less so. i do not think it is necessary that for the purposes of special empowerment within the meaning of section 39 the names of the persons must be disclosed even though they hold an office'.a perusal of the case of 1915 mad wn 269: (air 1915 mad 1159) does not show..........sessions judge acquitted them on the ground that the sanitary inspectors, who were appointed as food inspectors under section 9 of the act, were not properly appointed in exercise of the powers confened by the section, and consequently they were not authorised to make complaints under section 20 of the act. in this view, he held that the trials were without jurisdiction and, therefore, quashed the convictions and set aside the orders of fine imposed on several of the accused.2. appeals 142, 143 and 145 to 148 are cases in which the accused pleaded guilty, and under section 412 they appealed to the sessions judge on the legality or propriety of the sentence.3. appeals nos. 138 to 150 excluding the above six cases viz., 142, 143 and 145 to 148 are cases in which the sessions judge did.....
Judgment:

Jagan Mohan Reddy, J.

1. These criminal appeals and revisions' arise out of the Judgment and order of acquittal by the Sessions Judge, East Godavary, under the Prevention of Food Adulteration Act. Several persons were convicted of the charge of adulteration of milk, ghee and pulses under Section 16(1) and Section 7 read with Section 2(i)(a) of the Prevention of Food Adulteration Act, hereinafter called 'the Act''. They were convicted and fined but on appeal the Sessions Judge acquitted them on the ground that the Sanitary Inspectors, who were appointed as Food Inspectors under Section 9 of the Act, were not properly appointed in exercise of the powers confened by the Section, and consequently they were not authorised to make complaints under Section 20 of the Act. In this view, he held that the trials were without jurisdiction and, therefore, quashed the convictions and set aside the orders of fine imposed on several of the accused.

2. Appeals 142, 143 and 145 to 148 are cases in which the accused pleaded guilty, and under Section 412 they appealed to the Sessions Judge on the legality or propriety of the sentence.

3. Appeals Nos. 138 to 150 excluding the above six cases viz., 142, 143 and 145 to 148 are cases in which the Sessions Judge did not go into the merits of the cases.

4. Criminal Appeals 168 to 173 and Criminal Revisions Nos. 261 to 266, which pertain to the same matter, are cases in which the Magistrate had not taken any evidence but acquitted the accused having regard to the decision of the Sessions Judge in other Criminal Appeals referred to above.

5. Criminal Appeal No. 403 is also another case which the Sessions Judge did not decide on merits but only disposed it of on the question of law.

6. In all these appeals and revisions, the short point that falls for consideration is whether the appointment of Sanitary Inspectors is in accordance with the provisions of Section 9 of the Act and whether the complaints by them were properly filed in exercise of the power vested in them under Section 20 of the Act.

7. The learned Public Prosecutor contends that the Sessions Judge omitted to consider the effect of Section 15 of the General Clauses Act, with the result that he has come to an erroneous conclusion. It is necessary to examine the relevant provisions of the Act viz., Sections 8, 9, 20 and Section 15 of the General Clauses Act.

'Section 8, The State Government may, by notification in the Official Gazette, appoint persons in such number as it thinks fit and possessing such qualifications as may be prescribed, to be Public Analysts and define the local areas over which they shall exercise jurisdiction :

Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be so appointed ;

Provided further that the State Government may appoint one Public Analyst for two or more local areas, such local areas being regarded as one unit for the purposes of this Act.'

'Section 9(1). Subject to the provisions of Section 14, the State Government may, by notification in the Official Gazette, appoint persons in such number as it thinks fit, having the prescribed qualifications to be Food Inspectors for the purposes of this Act, and they shall exercise their powers within such local areas as that Government may assign to them;

Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be so appointed,

(2) Every Food Inspector shall be deemed to be a public servant within the meaning of the Indian Penal Code (Act XLV of 1860)'.

'Section 20(1), No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorized in this behalf by the State Government or local authority;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the public analyst along with the complaint.

(2) No Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this Act'.

8. Section 15 of the General Clauses Act:

'Section 15. Where by any Central Act or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office'.

Pursuant to the powers conferred by Section 8 of the Prevention of Food Adulteration Act, the Government of Andhra Pradesh, by its memorandum No. 31619B-21/4 56-6 Health, dated 29th January, 1957, amended the schedule and inserted the following new schedule appointing Public Analysts :

PersonsLocalArea

(i)GovernmentAnalyst, King Institute, Guindy, Madras,

Wholeof Andhra State(ii)Deputy GovernmentAnalyst, King Institute, Guindy, Madras.--do--

Prior to that Notification, two Public Analysts, Shri S.S. Narayan Iyer and Sri K.R. Srinivasan were appointed by name for the whole of Andhra Pradesh.

9. With respect to the notification under Section 9 the following was promulgated by the State Government in G.O. Ms. No. 313 Health dated 23-2-1956:

'In exercise of the powers conferred by Section 9 of the Prevention of Food Adulteration Act, 1954, (Central Act XXXVII of 1954), the Governor of Andhra hereby --

(1) appoints the persons specified in column (1) of the schedule below to be Food Inspectors for the purposes of the said Act; and

(2) directs that the persons aforesaid shall exercise powers within the local areas specified in the corresponding entries in column (2) of the said schedule :

SCHEDULE

PersonsLocal Area

(1)(2)

1.Municipal Health Officer, and Sanitary Inspectors under his control.

Municipalityhaving a Municipal Health Officer.

2.Commissioner of Municipality and Sanitary Inspectors under his control.

Municipalitynot having a Municipal Health Officer.

3.Sanitary InspectorsPanchayathaving Sanitary Inspector

4.Executive Officer or Health Inspector of the Range concerned.

Panchayatnot having Sanitary Inspector.

10. The whole contention involves the ascertainment of the power vested by Section 20 of the Act When the Legislature authorised a person appointed in that behalf by Slate Government or local authority to lodge complaints in respect of prosecution for an offence under the Act, should that person be signified by name or can he be appointed by virtue of his office? It is contended by the learned Advocate for the accused that the appointment does not conform to the rules made under the Act, and that in any case, Sanitary Inspectors as a class were not under the contemplation of the powers vested in Section 20 of the Act.

11. The relevant rules relating to the classification of Public Analysts and Food Inspectors are as under: A person shall not be qualified for appointment as Public Analyst unless he --

(i) is a graduate, with Chemistry as one of the Subjects, of a University recognized for this purpose by the State Government and has had not Jess than five years' post-graduate experience in the analysis of food in a laboratory under the control of --

(a) a Public Analyst appointed under the Act or

(b) a Chemical Examiner to Government, or

(c) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E), or

(d) the head of an Institution specially approved for the purpose by the State Government, or

(ii) is an M.Sc. in Chemistry or holds a research degree on the subject, of a University recognized for this purpose by the State Government, and has had not less than two years' post-graduate experience in the analysis of article of food under the control of-

(a) Public Analyst appointed under the Act, or

(b) a Chemical Examiner to Government, or

(c) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E), or

(d) the head of an institution specially approved for the purpose by the State Government; or

(iii) is a graduate in Medicine of a University recognized for the purpose by the State Government with a post-graduate qualification in Public Health and with experience in food analysis for at least five years; or

(iv) is a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E) with at least one year's experience of food analysis in India :

Provided that for a period of four years from the commencement of the Act, persons whose qualifications, training and experience are regarded by the State Government as affording, subject to such further training if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence may be appointed as Public Analyst'.

12. Qualifications of a Food Inspector : A person shall not be qualified for appointment as Food Inspector unless lie :

(i) is a Medical Officer incharge of the Health Administration of a local area or

(ii) is a graduate in Medicine, or a Licentiate in Medicine, or

(iii) is a holder of qualification in Sanitary Science registrable as an additional qualification by the State Medical Council, or Health Officers Examination Certificate, or Possesses qualifications prescribed by the respective State Governments for Health Inspectors :

Provided that for a period of four years from the date on which the Act takes effect, persons whose qualifications, training and experience are regarded by the State Government as affording, subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence, may be appointed as Food Inspectors'.

13. The proviso under both these rules vest the State Government with the power to appoint any person other than those whose qualifications have been specified. If for a period of four years from the commencement of the Act the State Government considers the qualifications, training and experience of those persons as affording, subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence, they may be appointed as Food Inspectors. Though the provisos vest in the State Government the power to appoint person other than those specified as above, in this case it is not denied that Sanitary Inspectors were appointed by State Government in accordance with the qualifications prescribed for the Sanitary Inspectors.

Similarly, it is stated that the Government Analyst and the Deputy Government Analyst, King Institute, Guindy, Madras are persons who have the necessary and requisite qualifications specified in Rule 6. It is further stated that the two persons referred to by virtue of the office are the same persons who were previously specified by name in the notification referred to. In the circumstances, there can be little doubt that the Government Analyst, Deputy Government Analyst, and the Sanitary Inspectors possess the required qualifications prescribed by Rules 6 and 8 and their appointment under Sees. 8 and 9 of the Act cannot on that ground be challenged.

14. This leaves the crucial question whether the Sanitary Inspectors appointed under Section 9 have the power under Section 20 to file written complaints against persons contravening the provisions of the Act. From a perusal of Section 15 of the General Clauses Act which applies to the interpretation of the Act which is a Central Act, it would appear where a Central Act confers the power to appoint any person to fill any office or execute any function such appointment can be made either by name or by virtue of office unless there is something to the contrary in the particular Act itself. The object of enacting this provision has been stated by the Select Committee in its report thus :

'The practice hitherto observed in drafting in this country appears to have been to state explicitly in each Act that a person may be appointed by name or by virtue of his office, if the admissibility of making ex-officio appointments is contemplated. This may lead to the inference that no person can be appointed by office unless express authority to that effect is conferred by the law under which the appointment is made. It will, from an administration point of view, be most convenient to generalize the provision in the manner indicated.'

15. It is manifest therefore that the general provision specified in Section 15 of the General Clauses Act is designed to empower the appointment of persons required to fill any office or execute any function under any Central Act to be made either by name or by virtue of office. The Act need not therefore authorise specifically the appointment of any person by virtue of their office as Food Inspectors. A provision similar to Section 15 of the General Clauses Act is to be found in Section 39(1) of the Code of Criminal Procedure. It

'In conferring powers under this Code, the provincial Government may by order, empower persons especially by name or in virtue of their office or classes of officials generally by their official titles'.

16. On an analogy of this provision with that of Section 15 of the General Clauses Act, Shri Adavi Rama Rao, submits that the omission in the General Clauses Act of the words 'classes of official generally by their special titles' which is found in Section 39 of the Criminal Procedure Code, shows that the Central Act had intended to exclude the appointment of classes of officials such as Sanitary Inspectors. I am unable to agree with his contention. The provisions contained in Section 39 of the Criminal Procedure Code were designed to meet the requirements of the Code. It should not be forgotten that Section 6 of the Code provides for the constitution of Criminal Courts and Offices in which are enumerated the class of criminal courts such as r

I Courts of Session

II Presidency Magistrates

III Magistrates of the First Class

IV Magistrates of the Second Class

V Magistrates of the Third Class.

17. It will be seen from the provisions of Section 6 and the heading of Chapter II that Courts and Offices have been used as synonymous terms. A Magistrate is a person who is holding that office, while a Court is the place where that officer holds his Court, so that a First Class Magistrate's Court would mean on the one hand the office and on the other the Court of the First Class Magistrate. Sections 36, 37 and 38 of the Code of Criminal Procedure indicate in Schedules III and IV the powers conferred on each class of Magistrates. It divides these powers into the

Ordinary powers of a Magistrate of the third class,

Ordinary powers of a Magistrate of the Second class,

Ordinary powers of a Magistrate of the first class,

Ordinary powers of a sub-divisional magistrate appointed under Section 13 and

Ordinary powers of, a District Magistrate.

Schedule IV enumerated the additional powers with which the State Magistrates may be invested. A Magistrate has been defined by the General Clauses Act in Section 3 Clause (32) to include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force. It is, therefore, manifest that when a power is invested on a Magistrate generally by referring to that class by their official titles or otherwise, it can also specially empower any one class of Magistrates by indicating that particular class. The former would be a general empowerment while the latter a special empowerment. The addition of the words 'class of officers generally by their official titles' in Section 39(1) of the Code of Criminal Procedure as compared to Section 15 of the Central General Clauses Act is significant inasmuch as they include all classes of Magistrates, which would not have been otherwise possible if it had not used the words, by virtue of their office'. Taking into consideration the definition in the General Clauses Act and the connotation of the word 'magistrate' in Chapter II of the Code, a Magistrate or a Court of a Magistrate can only be regarded as an officer and not an official.

Thus, in construing Section 15 of the General Clauses Act, the Sanitary Inspectors would be deemed to be a class of officers generally by their official titles in the sense in which it was also used in Section 39 of the Code of Criminal Procedure. I have no hesitation, therefore, in holding that the Sanitary Inspectors could be appointed, by virtue of their office under Section 9. There is nothing in Section 20 of the Act which required that a person should be appointed by the name before he can be authorised to lodge complaints.

18. The case-law on this aspect which is based on the analogous provision of other Central and Provincial Acts also lend support to this view. In Alaga Pillai v. Emperor, AIR 1924 Mad 256, a notification of Government published in the Fort St. George Gazette under date 4-6-1915 empowering Second Class Magistrate mentioned in the list appended to the Notification to try cases under the Opium Act was considered as a special empowering within the meaning of Section 39 of the Code of Criminal Procedure. Section 3 of the Opium Act defines a Magistrate as meaning a Presidency Magistrate in the Presidency town and elsewhere a Magistrate of the first class or when specially empowered by the Provincial Government to try cases under this Act a Magistrate of the Second Class. The Division Bench consisting of Ayling and Odgers, JJ., observed:

'We entertain no doubt whatever that this is a 'special empowering' of the person holding that office in virtue of his office within the meaning of Section 39 of the Criminal Procedure Code and would satisfy the requirements referred to by the learned Judges in Mahomed Kasim v. Emperor, 1915 Mad WN 269: (AIR 1915 Mad 1159)'.

The case referred to by the learned Judges however does not support the view expressed by the Bench as pointed out by Thadani, C. J., in State v. Judhabir. AIR 1953 Assam 35 (FB), who observed with respect to that case thus :

'While it is true that the learned Judges of the Madras High Court in AIR 1924 Mad 256 have sought to reconcile the previous decision of the same Court to which I have referred, the reconciliation is I think only apparent and not real. In my view it makes no difference that in the notification involved in the later decision of the Madras High Court the names of the Magistrates were also mentioned. Under Section 39 conferment may be by name or in virtue of a person's office. The fact that it is both by name as well as in virtue of his office would not make the special empowerment any the less so. I do not think it is necessary that for the purposes of special empowerment within the meaning of Section 39 the names of the persons must be disclosed even though they hold an office'.

A perusal of the case of 1915 Mad WN 269: (AIR 1915 Mad 1159) does not show that there was an empowerment by virtue of office as well as by name. In any case, the Full Bench of the Assam High Court also took a similar view as that taken by the Bench of the Madras High Court in respect of the appointment of Magistrates of the 1st class. In that case, the Full Bench was dealing with proceedings under Section 16 of the Assam Opium Prohibition Act and the notification empowering all Magistrates to exercise powers under Section 17 (3) of that Act. The question there was whether the special empowerment was as required by Section 16 of the Act.

There also it was contended that the State Government had empowered all First Class Magistrates in Assam and not any Magistrate of the First Class by name which alone can constitute special empowerment. As such the notification must be regarded as one amounting to a general empowerment. It was decided that having regard to the definition of the word 'Magistrate' in the General Clauses Act and the connotation of the word 'Magistrate' in Chapter II of the Code in which manifestly a Magistrate or a Court of the Magistrate is regarded as an Officer and not an official, the Notification in question fulfilled the requirements of Section 16 of the Assam Prohibition Act read with Section 39(1) of the Code.

There also the indefinite article 'a' has been used and on that analogy the aforesaid cases would support the contention of the learned Public Prosecutor that the use of the indefinite article does not necessarily require either the appointment of a Magistrate under the Opium Act or a Sanitary Inspector under the Act by name. An empowerment of Sanitary Inspectors by virtue of their office would be quite valid particularly, having regard to the clear terms of Section 15 of the General Clauses Act. In the view it is unnecessary to refer to the cases of Sundarlal v. Emperor, AIR 1933 All 676, K.N. Vijayan v. State, AIR 1953 Trav-Co. 402 and .

19. The other contention urged by the learned Public Prosecutor is that even if this empowerment was invalid, inasmuch as Section 20 of the Act authorises a purchaser who has obtained a certificate from a Public Analyst to lodge a complaint and since the Sanitary Inspector is a purchaser within the meaning of Section 12 of the Act, the complaint lodged by him should be deemed to be valid. I agree with the rejoinder of Shri Advi Rama Rao with respect to this contention. He points out that this contention of the Public Prosecutor omits to take into consideration the definition of 'purchaser' which specifically excludes the Food Inspector.

In the circumstances, if the appointment of a Sanitary Inspector as Food Inspector under Section 9 is valid, then he cannot be a purchaser within the meaning of Section 12 and consequently he is not the person who is in contemplation of Section 12 which specifically excludes him from the category of purchasers. Since on the main question I hold that the complaints by the Sanitary Inspectors are valid, most of these appeals, and revisions are allowed as specified below.

20. Appeals 142, 143, 145 to 148 are allowed and the Sessions Judge is directed to consider the extent and the legality of the sentence. Appeals 138 to 131 (?) and 144, 149 and 150 having been determined on merits and as the learned Public Prosecutor was unable to satisfy me that that finding on merits was wrong or that there was any substantial or compelling reason to reverse the findings they are dismissed. Appeals 168 to 173 and Cr. Revns. 261 to 266 are allowed and the Magistrate is directed to try the oases according to law. As far as Criminal Appeal No. 403 is concerned, the Sessions Judge has not heard the appeal on merits, and as the view taken by him was only on the legal question, it is sent back for being heard on merits.


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