R.L. Narasimham, C.J.
1. This is a revision against the appellate judgment of the Sessions Judge of Puri maintaining the conviction of the petitioner under Section 16(1)(a) of the Prevention of the Food Adulteration Act (Act 37 of 1954) ana the sentence of one years Rigorous Imprisonment and fine of Rs. 2000/- imposed on him by a First Class Magistrate of Puri.
2. The petitioner is a ghee vendor in Puri town. He has a shop in Dolmandap Sahi and has also a house in theMatimandap Sahi where he resides and manufactures ghee. He has been carrying on this business in Puri Town for nearly 8 to 10 years. On 28-1-1961 his house in Matiman-dapsahi was raided by the Health Inspector of Puri Municipality (P. W. 2) who found several tins of ghee and other articles such as essence, Dalda Vanaspati Ghee, Kumkum seeds for colouring, til oil, groundnut oil and ghee flavour. He also found milk powder and some sodium bicarbonate. Out of these articles he took samples of ghee from a bucket (M. 0. III) and three tins containing Ghee (M. OS. IV, V ana VI). M. 0. IV was a tin of ghee to which was affixed a green label containing, in the following printed words:
'S.G.S. brand Best Ghee -- Trade Mark Best Ghee S.G.S.--
Always use Tenali Ghee-used for lighting purposes.'
M. 0. V is another tin to which a red label is attached and that label also contained words similar to the words mentioned in the Green label described above M. 0. VI however contained no lable and similarly the bucket (M. 0. Ill) also did not contain any label.
3. Samples of ghee were taken, according to law ana sent to the Public Analyst whose reports (Exts. 6,7,8 ana 9) showed that they were grossly adulterated. Then a complaint was filed by the Chairman of Puri Municipality for the prosecution of the petitioner for an offence under the Prevention of Food Adulteration Act. The same Chairman has endorsed on the back of the reports as follows :
Chairman, Puri Municipality.'
Neither in his order nor in the complaint petition (Ext. 10) signed by him has the Chairman clearly stated that he was only authorised to initiate the prosecution of the petitioner for an offence under the Prevention of Food Aulteration Act. But during the trial of the case in the Magistrate's Court a copy of the proceedings of the General Meeting of the Puri Municipal Council held 29-5-61 was tiled and it contains a general resolution authorising the Municipal Chairman to initiate prosecutions and conduct proceedings on behalf of the Municipality. That resolution runs as follows:
'The Chairman is authorised by the Council to file andconduct all sorts of litigation on behalf of the Municipality(Municipality taraphru samasta prakar makaddama dayar 0parichalana kariba nimitta Srijucta Chairmananku Ksnnyamtaarpita hela).
4. Mr. Kanungo for the petitioner raised a preliminary contention to the effect that the entire proceeding against the petitioner was vitiated on account of the failure of the prosecution to comply with the mandatory provisions of Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act. That sub-section runs as follows:
'No prosecution for an offence under this Act shall be instituted except by, or with the consent of the State Government or local authority, or a person authorised in this behalf by the State Government or local authority.'
A Municipality is undoubtedly a 'local authority' -- see Section 2(31) of the General Clauses Act and the definition clause (viii) (1) (a) of Section 2 of the Prevention of Food Adulteration Act. The language of the sub-section makes it clear that the initiation of a prosecution against the offender should be (i) by the Municipality, or (ii) by some one with the consent of the municipality, or (iii) by a person authorised in this behalf. The words in this behalf in the sub-section seem to require that the authorisation of the person to initiateprosecution must tie with special reference to the particular case under the Prevention of Food Adulteration Act that was placed before the Municipality.
In this connection the recent judgment of the Supreme Court in Criminal Appeal No. 61 of 1962, Gour Chandra Rout v. Public Prosecutor, Cuttack decided on 23-11-1962 (not yet reported) (now reported in AIR 1963 SC 1198) regarding the construction of the same expression 'in this behalf occurring in Section 198-B (3) (a) Cr. P. C. may be referred to. Their Lordships held that a general authorisation made long before the date of commission of the alleged offence would not suffice and that the authorisation must be by the authority concerned, with respect to a specific complaint. Hence, the Chairman of the Puri Municipality cannot be said to be a person authorised 'in this behalf' by that Municipality. Nor can it be said that he was a person who instituted the complaint with the 'consent' of the Municipality. There is no evidence that this particular case was placed before the Municipality and that the Council by a resolution consented to his instituting the case against the petitioner.
5. It was urged however that the Municipality was empowered by the Orissa Municipal Act to delegate its functions to the Chairman and that once such a delegation was validly made the Chairman got all the powers of the municipality and consequently the complaint filed by tha Chairman should, in the eye of law be deemed to be a complaint made by the Municipality itself. This argument requires a careful consideration of the relevant provisions of the Orissa Municipal Act of 1951.
6. Section 95 of the Orissa Municipal Act is as follows:
'The powers, duties and functions of a municipal council may be exercised and shall be performed or discharged by a resolution passed at a meeting of the Municipal Council and not otherwise.'
This only shows that all the powers of a municipal council whether derived from the Municipal Act or from any other Act, would ordinarily be exercised by resolutions passed at the meetings of the Municipal Council and not otherwise. But Sub-section (1) of Section 96 of the Municipal Act says:--
'With the exception of power, duty or function to be prescribed or reserved or assigned to a Chairman under this Act, a municipal council may delegate to the Chairman or Executive Officer, any of the powers, duties or functions conferred or imposed or assigned to a municipal council under this Act......'
The aforesaid resolution of the Puri Municipality appears to have been passed in pursuance of Sub-section (1) of Section 96 though it is not stated to be so in express terms bUT that sub-section itself makes it clear that the duties, powers and functions conferred, imposed, or assigned to the Municipal council 'under this Act' can be delegated to the Chairman. The power to initiate prosecutions under the Prevention of Food Adulteration Act is not a power assigned to the Municipal Council under the provision of the Orissa Municipal Act. Hence, the resolution passed by the Municipal council authorising the Chairman to initiate and conduct cases on its behalf will not suffice to show that such power was conferred on him to initiate and conduct prosecutions under Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act. For that purpose a special authorisation by the Municipality will be necessary. A general resolution, passed By the Puri Municipality in 1951 long before the coming into force of the Prevention of Food Adulteration Act in 1954 will not suffice. It must therefore be held that the criminal case against the petitioner was launched by a person whowas not duly authorised in the manner required by Section 20(1) of the Prevention of food Adulteration Act. This detect is fatal to the entire proceeding.
I may in this connection refer to a recent decision or the Assam High Court reported in Jogendra Chandra v. Deputy Commr., Kamrup, AIR 1962 Assam 28. There also the Chairman of a Municipality (Tejpur Municipality) sanctioned the pjosecution of an offender under the Prevention of food Asulteralion Act. There was no resolution of that Municipality authorising its Chairman to file such a complaint and when his action was sought to be defended under Section 37(1) of the Assam Municipal Act the learned Chief Justicerejected that contention observing that Section 37 of theAssam Municipal Act would not authorise the Chairman to exercise the powers vested in the Tejpur Municipality under some other Act, but only those vested in the Municipality under the Assam Municipal Act. The entire proceeding was therefore quashed.
There are also decisions of the Kerala High Court in City Corporation of Trivandrum v. Arunachalam Reddiar, AIR 1960 Ker 358 and of the Andhra High Court in Public Prosecutor v. Satyanarayana, AIR 1960 Andh Pra 27 to the ettect that the provisions of Section 20 of the Prevention of food Adulteration Act are mandatory and non-compliance with the same would vitiate the entire proceeding.
7. Mr. Kanungo also challenged the correctness of the findings of fact of the lower Courts. But in view of my agreeing with him on the preliminary question of law it is unnecessary to say anything more on this question now. It will be open to the Municipality to start a fresh proceeding according to law, against the petitioner. Hence, it will be inadvisable for this Court at this stage to say anything on facts which might embarrass either party.
I would therefore allow this revision, set aside the conviction and sentence, and quash the entire proceeding.