1. This is an appeal from the order of the First Class Magistrate, Delhi, recording an acquittal in favour of the respondent Lekh Raj in a complaint filed Under Section 7/16 of the Prevention of Food Adulteration Act, 1954, by the Municipal Corporation of Delhi.
2. It was on 13th of, May, 1958, that the Food Inspector of the Municipal Committee took a sample from the respondent, Lekh Raj, of cow's milk which he purported to be in possession of for the purpose of sale. The sample was sent for examination to a Public Analyst and it was found on a report made by him on 19th of May, 1958, that it consisted of adulterated Milk. Consequently, a complaint was filed in Court Under Section 16 of the Prevention of Food Adulteration Act, 1954, on 30th of June, 1958, by Mr. B.B. Tawakley, Advocate, on behalf of the Municipal Committee, The complaint was withdrawn and a brief order was passed by Shri Tyagi, Magistrate First Class, on 12th of February, 1959 to this effect:
As the complainant withdraws the complaint and does not want to proceed further with it the accused Lekh Raj is acquitted in this case.
Another complaint about the same offence was instituted, this time on behalf of the Municipal Corporation of Delhi, which came into existence in pursuance of the previsions o the Delhi Municipal Corporation Act, 1957, on 7th of April, 1958. As an identical complaint for the same offence had been withdrawn and the petitioner acquitted by Shri Tyagi, the Magistrate took the view that the present complaint could not be entertained Under Section 403 of the Code of Criminal Procedure and accordingly dismissed it. It is against this order of dismissal of 15th o June, 1961, that the present appeal is directed.
3. It has been submitted by Mr. D. D. Chawla, on behalf of the appellant, that the complaint which resulted in the order of acqittal could not be taken cognizance of Under Section 20 of the Prevention of Food Adulteration Act, 1954, for the reason that it had not been instituted with the consent of the local authority. Section 20 provides that:
No prosecution for an offence under this Act shall be instituted except by, of with the written consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority.
It has been pointed out that Shri Tawakley, who was undoubtedly authorised by the Municipal Committee of Delhi to institute the complaint could not do so on behalf of the Delhi Municipal Corporation which had corns into existence on 7th of April, 1958, before the complaint was actually filed., Our attention has also been drawn by Mr. Chawla to the notification which was issued on 3rd of June, 1958, in which the area of the Municipal Corporation was declared to be the local area.
4. It is manifest that the previous complaint was not withdrawn on, account of any inherent lack of jurisdiction in the Court to entertain it. The complainant did not simply wish to proceed with the complaint and the respondent was accordingly acquitted. The record is bereft of any objection taken with regard to the maintainability of the complaint before the Magistrate. Even when the second complaint was before the Magistrate of competent jurisdiction it was never objected on behalf of the Corporation that the previous order of acquittal was void and inoperative as it was based on a complaint which had not been validly instituted. It is for the first time that the question of the validity of the order of acquittal passed by Shri Tyagi has been raised before us but it is well to remember that the present appeal is directed not against this order but that of dismissal of the second complaint. Mr. Chawla has invited us to apply the decision of their Lordships of the Privy Council in 'yusofalli Mulla v. The King AIR 1949 PC 264, in which it was held that
the whole basis of Section 403(1) is that the first trial should have been before a Court competent to hear and determine file case and to record a verdict of conviction or acquittal. If the Court was not so competent as for example where the required sanction for the prosecution was not obtained, it is irrelevant that it was competent to try other cases of the same class, or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained.
The appellant never filed an appeal against the first order of acquittal but chose instead to institute a further complaint against the respondent for the same offence. The Magistrate applying that provisions of Sub-section (1) of Section 403 which. places an interdict on a second trial of the same person who has been acquitted dismissed the complaint. The respondent never had an occasion to refute the assertion which has now been made for the first time that Mr. Tawakley did not have the authority of the Municipal Corporation to institute the complaint. It may be that the Municipal Corporation had subsequently ratified the act. It should have been the concern of the appellant to establish as a matter of fact that the complaint had not been properly filed and the order of acquittal in consequence was neither valid nor binding. Mr. Keshav Dayal ha3 controverted the facts on which the present appeal has been argued by Mr. Chawla and has drawn our attention to a judgment of Rowland, J. in Sarup Lai v. Emperor AIR 1936 Pat 636. where it was held that in proceedings started under the Bihar and Orissa Prevention of Food Adulteration Act the question that the prosecution was started without the order or consent in writing of the local authority is a question which ought to be raised and determined before the Courts of facts and cannot be raised in revision. This argument applies with equal force to the order under appeal as it was never contended before the Magistrate who relied on the provisions of Sub-section (1) of Section 403 of the Code of Criminal Procedure that the' previous complaint could not have been entertained at all, having been instituted by an unauthorised person. To repeat, the question of jurisdiction was never raised when the order of acquittal was passed, nor has it been established before the Court trying the second complaint that the first one was instituted without requisite authority.
5. In these circumstances, there seems to be no force in this appeal which fails and is accordingly dismissed.
D.K. Mahajan, J.
6. I agree.