B.P. Beri, J.
1. The aforesaid three criminal appeals instituted by the Municipal Council, Jaipur, in cases relating to the Prevention of Food Adulteration Act, raise an identical point and are, therefore, being disposed of by this common judgment.
2. In Criminal Appeals Nos. 91 of 1965 and 107 of 1965 Shri Shyam Beharilal Saxena, President, Municipal Council, Jaipur, had made a complaint before the Municipal Magistrate No. 2, First Class, Jaipur. In Criminal Appeal No. 417 of 19G5 the complaint was made before the Municipal Magistrate No. 2, Jaipur by Shri Jagat T. Bhatia, President, Municipal Council, Jaipur. In all these three cases the accused were acquitted and the Municipal Council, Jaipur, after obtaining leave under Section 417(3) of the Code of Criminal Procedure presented appeals against the acquittal.
3. Learned counsel appearing for the respondents raised a preliminary objection as to the maintainability of these appeals. They urged that an appeal against an acquittal is only competent by a complainant. Shri Shyambeharilal and Shri Jagat T. Bhatia were the complainants in these cases and they alone could have preferred appeals. The present appeals by the Municipal Council, Jaipur, are incompetent as they have not been filed by the complainant in each case.
4. Learned counsel for the Municipal Council, Jaipur urged that the appeals have been properly presented by competent persons because both Shri Shyambeharilal and Shri Jagat T. Bhatia presented the complaints on behalf of the Municipal Council.
5. The first point which arises for consideration is: Whether these appeals have been presented by persons competent to do so.
6. Arguments were addressed on behalf of the respondents by Mr. Tikku and Mr. V. S. Dave. They contended that the powers in these three cases having been conferred by resolution of the Municipal Council, presumably under Section 78 of the Rajasthan Municipality Act, it was the President who presented the complaints could alone present these appeals. In this connection, they relied upon the depositions of Shri Shyambeharilal. They further contended that the complaints did not indicate that they were presented for and on behalf of the Municipal Council. Jaipur. Therefore, it cannot be construed that the complaints were not instituted by the President, Municipal Council, Jaipur. They relied upon the Municipal Council. Jaipur v. Prabhu Narain, an un-reported decision of this court by D. M. Bhandari and P. N. Shinghal, JJ. being D. B. Criminal Appeal No. 271 of 1966 dated 13th February, 1967 (Raj).
7. Mr. C. K. Garg, appeared as an intervener, being interested in this controversy. His contention was that a bare reading of Sections 200, 247, 248 and 250 Criminal Procedure Code would show that the functions of a complainant are understood in a particular sense, which functions a Municipal Council as such could not fulfil. His further contention was that under- Section 87 of the Rajasthan Municipalities Act, it is only a suit which can be instituted by a Municipal Council and not a complaint. He invited my attention to Section 265 of the Rajasthan Municipalities Act. He placed reliance on Para-mananda Nadar v. Karunakara Doss, AIR 1914 Mad' 387(1), Muhammad Hashim v. Emperor, AIR 1940 Sind 134 (FB), Nanilal Samanta v. Rabin Gosh, AIR 1964 Cal 64 and Har Narain Singh v. Nawab Chand Lal, AIR 1958 Pat 10.
8. Mr. Sagar Mal Mehta argued that a corporate body can only make a complaint through some person and the person in the present case was the President, Municipal Council. The case of Cri. Appeal No. 271 of 1966, D/- 13-2-1967 (Raj), he urged, was distinguishable because there the complaint was filed by the Food Inspector, who had nothing to do with the Municipal Council. On the other hand, a president is required by the Rajasthan Municipalities Act to perform the executive functions pursuant to the powers conferred on him by Section 67(d). He relied on M. J. Powell v. The Municipal Board of Mussoorie, (1899) ILR 22 All 123 (FB). In regard to Section 200 of the Cr. P. C. his argument was that under Sub-clause (aa), a public servant's presence can always be excused under Section 247, Cr. P. C. He submitted that the proviso to the said section will come into operation in regard to Section 248 of the Criminal Procedure Code, his submission was that Paramananda Nadar's case, AIR 1914 Mad 387 (1) does not lay down the correct law. He placed reliance on Kannan Devan Hills Produce Co. Ltd. v. Madhavan Pil-lai, AIR 1956 Trav. Co. 189.
9. Section 20 of the Prevention of Food Adulteration Act inter alia enables a local authority to institute a prosecution for an offence under that Act. A corporate body such as a local authority can act only through the agency of a human being. This aspect of the matter came up for consideration in M. J. Powell's case, (1899) ILR 22 AH 123 (FB) and the observations of Strachey, C. J. are well worth recalling. The learned Chief Justice observed:--
'A complaint of the Municipal Board in itself implies the Board authorising somebody to make the complaint because, as I have said, the Board being a corporate body cannot make a complaint at all without authorising some one to make it. Again, if the Board does authorise some person in the words of the second part to make a complaint, that complaint is, strictly speaking, the complaint of the Board itself.'
In the case of the Cri. Appeal No. 271 of 1966, D/- 13-2-1967 (Raj), Shanghai J. observed: 'It does not therefore require much argument to hold that if a local authority decides to institute the prosecution, it shall itself be the complainant in the case, even though, being a body corporate, it may authorise some particular person to make the complaint on its behalf.' Bhandari, J. further observed in his separate judgment in the aforesaid case: 'Now, a Corporation cannot act except through a duly constituted agent. Such an agent will sign the complaint and it is such an agent who will be examined by the Magistrate under Section 200 of the Code. For the purposes of examining and signing of the statements-recorded by the Magistrate such duly constituted agent will be treated as a complainant in spite of the fact that the complaint purports to be by the Corporation.' Under the Rajasthan Municipalities Act, 1959 (hereinafter called 'the Act') there are two provisions to which my attention was rightly invited by the learned counsel appearing before me. The first is Section 67, the relevant portion whereof' reads as follows:
'Section 67. Functions of Chairman. -- It shall be the duty of the Chairman of a Board.-- .......
(c) to perform all the duties and exercise all the powers specifically imposed or conferred upon him by or delegated to him under and in accordance with this Act;
(d) subject to the provision of Section 78 and of the rules for the time being in force, to perform such other executive functions as may be performed by or on behalf of the board over which he presides; ... ... ... ... ...'
And the other is Section 78, the relevant portion whereof reads as under, --
'Section 78. Powers, duties and functions which may be delegated: (1) Any powers, duties or executive functions which may be exercised or performed by or on behalf of the board may be delegated by the board to the Chairman or to the Vice-Chairman or to the Executive Officer or to the Secretary or the Chairman of any Committee or to one or more stipendiary or honorary officers, without prejudice to any powers that may have been conferred on any committee by or under Section 73; and each person, who exercises any power or performs any duty or function so delegated shall be paid all expenses necessarily incurred by him therein.
10. The contention of Mr. Tikku is that in the face of the resolution having been passed under Section 78 of the Act the powers were specifically conferred on the President of the Municipal Council, Jaipur to institute a complaint. Mr. Sagarmal on the other hand contended that a complaint could be instituted by a President exercising his functions entrusted to him by Section 6V (d) and the resolution by which the President was authorised to institute a complaint under the Prevention of Food Adulteration Act is either a superfluity or an action by way of abundant caution. A similar argument was raised before this Court in Ratanlal v. State, 1963 Raj LW 634 at pp. 637-638 = (AIR 1964 Raj 123 at p. 126), to which I was a party, and it was observed --
'The Chairman is of course to perform any of the duties and functions which may be delegated to him. Even in the absence of any specific delegation so far as the executive functions are concerned, he has been given the power to perform them under Section 67(d). Section 78 does not in any way affect the power conferred upon the Chairman under Section 67 ...... In our opinion, the words 'subject to the provision of Section 78 and of the rules for the time being in force', occurring in sec. 67 (d) only mean 'unless there is anything to the contrary in Section 78' or in the rules. They do not mean that 'unless there is express delegation under Section 78' the Chairman cannot perform any executive act.'
In view of this Division Bench decision a Chairman of Municipal Council under the Act can perform the executive functions as may be performed by or on behalf of the board over which be presides, whether or not there has been an express delegation under Section 78 of the Act. In the cases before me there is an express delegation under Section 78 by the Municipal Council, Jaipur to its Chairman to institute complaints under the Prevention of Food Adulteration Act, Even if it was not there he could in exercise of his executive function, in my opinion, act on behalf of the Board by instituting prosecutions under the Prevention of Food Adulteration Act. Therefore, the resolution merely repeats the power which already resided in the President of the Municipal Council to perform the executive functions including the function of instituting a complaint under the Prevention of Food Adulteration Act. The resolution has not therefore the effect of detracting from the power which by virtue of Section 67 (d) already existed in the President.
11. The Chairman, therefore, discharged his functions under the powers conferred by the Act and was acting on behalf of the Municipal Council, Jaipur when he instituted the complaint. Therefore, in substance the complaint was by the Municipal Council through its Chairman. Stress was laid before me that in the title of the complaints in all these three cases the name of the president is mentioned first and the Municipal Council, Jaipur city has been added thereafter. I cannot overlook the fact that the complaint has been lodged in a printed form. The writer of the complaint has mentioned the name of the President first and the Municipal Council thereafter. I am prepared to recognise that it may have been more precise to say that the Municipal Council, Jaipur was the complainant through its president but a mere lack of precision in the matter of drafting would not alter the substance of the matter. Neither Mr. Shyam Behari Lal Saxena nor Mr. Bhatia were acting in their personal capacities. They were acting as Presidents of the Municipal Council and to all intents and purposes on behalf of the Municipal Council. From the mere verbal frame of the complaint I am unable to reach the conclusion that these Presidents were not acting on behalf of the Municipal Council, Jaipur and not discharging their functions and duties conferred on them by the provisions of Section 67 (d) of the Act.
12. Before I proceed to the next point I might deal with another argument emphasised by Mr. Garg with reference to Section 265 of the Act. Section 265 of the Act provides that the Board may direct anv prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties. This section speaks of prosecutions in respect of public nuisances and for the recovery of penalties and for the punishment of any persons offending against the provisions of the Rajasthan Municipalities Act, 1959. This section does not exhaust the powers of the Municipal Councils or excludes Board's power to take action under the Prevention of Food Adulteration Act and does not help in resolving a controversy in respect of complaints under that Act.
13. The cases before me are clearly distinguishable from Prabhu Narain's case, Cri. Appeal No. 271 of 1966. D/-13-2-1967 (Raj) and I am, therefore, of the opinion that the complainant in substance in all these three cases was the Municipal Council, Jaipur, which was acting through its President, and therefore, under Section 417(3), Cr. P. C. the Municipal Council being the complainant could and did prefer appeals against the acquittals in these cases.
14. I might briefly notice some of thecases cited before coming to the meritsof individual cases. S. ParamanandaNadar's case, AIR 1914 Mad 387(1) wasa case where a person on the authorityof the Municipal Secretary had instituteda complaint. It was held that it was notcompetent for Municipal Council to withdraw the complaint when the complainantdid not withdraw it. In my opinion thiscase does not assist me to resolve thecontroversy which is before me. In Nanilal Samanta, AIR 1964 Cal 64 a casebefore their Lordships of the CalcuttaHigh Court arose where a person havingobtained a special leave under Section417(3) of the Code of Criminal Procedurefor instituting an appeal against an orderof acquittal passed by a Magistrate haddied. The learned Judge was called uponto decide whether the substitution of thewidow as an appellant was permissibleor not and in the course of that decisionthe learned Judge observed as to who thecomplainant was and those observationsin my opinion are mere obiter dicta anddo not help to decide the point in theseappeals. Muhammad Hashim's case, AIR1940 Sind 134 was in regard to the payment of compensation under Section 250and is unhelpful for the decision of thedispute engaging my attention. HarNarain Singh's case, AIR 1958 Pat 10 wasa case that was started on a police reportand not on a complaint and, therefore, noapplication under Section 417(3) Cr. P. C.for special leave could lie. This case isequally unhelpful. In Kannan Devan HillsProduce Co.'s case, AIR 1956 Trav-Co.189 the learned Judges held that the substitution of a duly constituted attorneywho instituted a complaint was possiblebut since no such application was madeby M in place of W the learned Magistrate was right in refusing the substitution sought. This case, therefore, is of noassistance in deciding the point in theseappeals.
15. I, therefore, overrule the preliminary objection as to the maintainabilityof these appeals. In my opinion theseappeals have been properly presented bythe Municipal Council, Jaipur as the original complaints were also by the Municipal Council, Jaipur through its President. ,
16. Now I shall deal with each one of these cases on their merits.
Cri. Appeal No. 91/65:
17. The circumstances in which this appeal arises are that at 8.50 A. M. on 19th August, 1961 Satya Narain Sharma, Food Inspector, Municipal Council, Jaipur in his official capacity reached the shop of Laxmi Narain s/o Ladhu Ram Brahmin and found milk in a jug (chari) without bearing the description of the animal whose milk it was. Finding that the accused was a licensed vendor of the Municipal Council he bought 24 ozs. of milk for 0.47 P., made out three samples and handed over one sample with a form to_ the accused. Another was preserved with Municipal Council and the third was sent to the Central Laboratory. The Public Analyst found that there was no cane sugar and starch in the milk and the percentage of other components was also below standard. The accused denied the accusation and added that he has no shop in which he sells milk and examined defence. The learned Magistrate found that there were contradictions in the statements of the two independent witnesses inasmuch as while Sewa Ram said that the sample bottles had already been filled in when he came, Jhumarmal says that they were filled in his presence. Sewa Ram further said that whether the accused is the owner of the shop or his father he did not know. While the Food Inspector on the other hand says that all these proceedings were done in the presence of the two independent witnesses. In the complaint it was said that the accused was himself the Municipal Council's licensed vendor but the Food Inspector in his statement admitted that the receipt of the license is in the name of the father of the accused, and the learned Magistrate, therefore, came to the conclusion that because the accused was not challaned for selling milk without a licence the taking of the sample and the checking all stand disproved. He also decided that it was not proved that the sample was taken from his shop or that the price was paid for the sample. For decision on this point the learned Magistrate has not given any reasons. The third point whether the milk was adulterated or not the learned Magistrate chose not to decide it because according to him this does not make any difference to the result of the case.
18. I have examined the evidence on record. The statement of the Food Inspector is clear and convincing and all the details of purchasing of the milk and making the samples stand established from the evidence of the Food Inspector Satya Narain Sharma read with Ex. P/2. I might notice here that the date on which purchase of milk was made is 19th August, 1961 and not 29th August, 1961 as mentioned by the Magistrate and repeated by the learned counsel in his application for leave to appeal. The report of the Analyst clearly indicates that the milk was adulterated by reason of its containing 13 per cent of added water and abstraction of 7 per cent of original fat. Both the independent witnesses at least support the prosecution to this extent that the Food Inspector had gone to a shop in which accused was sitting and had taken samples. The only difference is in regard to the time of the arrival of independent witnesses, and in the circumstances of the case I am not prepared to attach much importance to this variation.
19. The other question which arises for consideration is that if the father of the accused was a licensed vendor why was the accused not prosecuted for running a shop without a license. I deal with this argument because the learned Magistrate has attached great importance to it. Whoever be the licensed vendor it was the accused who was sitting at the shop out to sell milk, the sample whereof was taken. Whether the accused was the licensed vendor or his father was a licensed vendor, it makes little difference because under the Act any person who keeps an article adulterated for sale contravenes the provisions of Section 16 of the Act. Section 7 employs the words 'No person shall himself or by any person on his behalf.' In 'this view of the matter the judgment of the learned Magistrate is clearly erroneous when he says that the shop occupied by the accused was not at all checked and the samples from his shop were not taken. The learned Magistrate has disbelieved the story of taking of the samples in an arbitrary and perfunctory manner.
20. I accordingly convict the accused under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. Having regard, however, to the fact that the incident relates to the year 1961, I think that the ends of justice will be adequately met if the accused is sentenced to pay a fine of Rs. 250 instead of awarding him the sentence of imprisonment. I accordingly sentence him to a fine of Rs. 250, failing which he will undergo one month's rigorous imprisonment.
Cr. Appeal No. 417 of 1965:
21. Food Inspector A. P. Goyal suspected the milk of the accused to be adulterated and, therefore, purchased on 5th August, 1961, 24 ozs. on payment of 0.47p. It was divided into three samples and one sample whereof was sent to the Chief Public Analyst and he found the milk to be adulterated by reason of its containing 3 per cent of added water and abstraction of 11 per cent original fat. The accused denied the sale of the milk to the Food Inspector and pleaded that he was taking goat's milk for his brother, who was under treatment in hospital, and the Food Inspector forcibly took the milk. The accused was convicted and he preferred a revision and the learned Additional Sessions Judge, Jaipur city accepted the revision and remanded the case with a direction that the case be tried as a warrant case as it was the second offence committed by the accused opposite party. The learned Magistrate who tried the case as a warrant case came to the conclusion that while there was contradiction in the prosecution evidence the contention of the accused was reliable and he acquitted the accused. The Municipal Council has now come up in appeal.
22. According to the prosecution wit-nesses the accused at the time when the Food Inspector purchased the milk from him had two drums (Dhol) and one 'chari'. Abhinandan Prasad Goyal, Food Inspector, says that he had only one 'chari' with him. In his statement Ex. C/2 portion A to B, A. P. Goyal admitted that something was written on the container of the milk but he does not remember what was written there. He merely accepted the word of the accused that it was cow's milk. This part of the story has been contradicted by Gopi, an independent witness. I am unable to appreciate how a Food Inspector neglects to note what was written on the container of the milk and prefers to proceed on the statement of the accused for the purposes of this prosecution. Taking of sample for the purposes of analysis and a consequent possible prosecution are serious statutory steps and I am left unimpressed by the evidence of the Food Inspector when he says that he did not care to even read what was written on the container of the milk. In this view of the matter, when the learned Magistrate has accepted the story of the accused that it was goat's milk which he was taking for his brother, which story stands substantiated by his defence evidence, I do not see any reason to interfere in the case of acquittal in those circumstances.
23. This appeal accordingly fails and is dismissed. Cr. Appeal No. 107 of 1965:
24. The facts which give rise to this appeal are that Food Inspector A. P. Goyal on 9-9-1962 at 7.30 A. M. went to the shop of the accused which is situated in Khura Ladliji and found him selling the milk He purchased milk by way of sample and sent one of the samples to the Chief Public Analyst who in his report Ex P/5 found the fat contained to be 4.5 per cent, solid non-fat 8.06 per cent and 10 per cent of added water and, therefore, adulterated.
25. The defence of the accused was that the milk from which the sample was taken, was not for the purposes of sale but for cleaning 'Khand' as a catalytic agent The accused adhered to his statement under Section 342 Cr. P. C. and further added that he had no measure even in his possession to sell the milk. Out of the two motbirs examined in the case, P. W. 1 was declared hostile by the prosecution itself. The learned Magistrate, therefore, found that taking of the sample was not established in the presence of the accused, The accused entered the witness-box himself and was cross-examined at length and the learned Magistrate has come to the conclusion that despite this protracted cross examination he is not shaken. The accused says that he is a 'Halwai' and not a milk vendor. This circumstance has been believed by the learned Magistrate and in my opinion for good reason. It has not been proved by the prosecution satisfactorily that the accused was selling milk to any one. It was merely suggested that he was selling milk to children. That is no satisfactory evidence and it is quite possible that as a Halwai he might have taken some milk as a catalytic agent and I am prepared to give him that benefit of doubt.
26. This appeal fails and is, therefore, dismissed.