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Municipal Council and anr. Vs. Bhura Son of Jai Narayan Ahir - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration;Criminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal (by Special Leave) No. 544 of 1971
Judge
Reported in1974WLN429
AppellantMunicipal Council and anr.
RespondentBhura Son of Jai Narayan Ahir
DispositionAppeal dismissed
Cases Referred and Swaroop Ram v. State
Excerpt:
.....municipalities act, 1959--sections 2 & 67--local--authority chairman can authorise the food inspector to institute prosecution.;by virtue of powers given to him under clause (d) of section 67 of the rajasthan municipalities act, 1959, a chairman of a municipality also can accord sanction to institute a complaint under section 20 of the act and, that, while doing so, he acts or functions as local authority itself.;under clause (d) of section 67 of the rajasthan municipalities act, the power to accord, sanction could be exercised lawfully by its chairman. if the president, municipal council, jaipur, instead of himself according sanction to prosecute the respondent authorised shri umaid singh to institute complaint under section 20 of the act, it cannot be said that such an..........j.1. this is an appeal by special leave filed by municipal council, jaipur and umaid singh, food inspector, against acquittal of the respondent of an offence punishable under section 7 read with food adulteration act, 1954, (hereinafter referred to as 'the act').2. the appeal arises out of the following facts : on 30th september, 1969, at 6.30 a.m. shri umaid singh, food inspector, municipal council, jaipur, found bhura carrying 20 kgs. of milk in a drum for sale at kishanpole bazar, jaipur. the food inspector suspected the milk to be adulterated, as it was not written en the outer space of the container of which animal the milk was. the food inspector, thereupon, disclosed his identity to the respondent and purchased 660 mm milk for 0.87 p. only from him. the food inspector,.....
Judgment:

K.D. Sharma, J.

1. This is an appeal by special leave filed by Municipal Council, Jaipur and Umaid Singh, Food Inspector, against acquittal of the respondent of an offence punishable under Section 7 read with Food Adulteration Act, 1954, (hereinafter referred to as 'the Act').

2. The appeal arises out of the following facts : On 30th September, 1969, at 6.30 a.m. Shri Umaid Singh, Food Inspector, Municipal Council, Jaipur, found Bhura carrying 20 Kgs. of milk in a drum for sale at Kishanpole Bazar, Jaipur. The Food Inspector suspected the milk to be adulterated, as it was not written en the outer space of the container of which animal the milk was. The Food Inspector, thereupon, disclosed his identity to the respondent and purchased 660 mm milk for 0.87 P. only from him. The Food Inspector, while taking the sample of milk for analysis, gave a notice in writing to the respondent then and there of his intention to have the sample so analysed. Thereafter be divided the sample of milk into three parts and filled each part in a clean bottle after adding 16 drops of formalin to it. Each bottle was sealed in the presence of 'Motbir's and the respondent. One of these parts was given to the respondent, who signed a receipt for it. Another part was sent in a sealed bottle to the Public Analyst to the Government of Rajasthan for analysis. The Public Analyst analysed the sample and declared the result of the analysis to be as follows:

Fat contents ... 5.00%

Solids non-fat ... 7.30%

Cane Sugar and starch ... Nil

Upon analysis the Public Analyst was of the opinion that the sample of milk was adulterated as it contained about 19% of added water.

3. Upon receipt of the report of the Public Analyst the Food Inspector made a complaint against the respondent in the Court of the Municipal Magistrate, First Class, Jaipur, under Section 7 read with Section 16 of the Act. The learned Magistrate, who tried the case, examined Umaid Singh, Food Inspector (PW 1), Mithulal (PW 2) and Jagdeesh (PW 3), and recorded the statement of Bhura respondent under Section 342, Cr.P.C. The respondent denied that any sample of milk was purchased from him or that any price was pad to him for which he gave a receipt According to his version he was made to affix his thumb impressions on 4 or 5 documents, but the sample of milk was not filled in the bottles in his presence. He however, admitted that a bottle of milk was indeed given to him, which he produced in the Court. In short, his plea was that the Food Inspector never checked his milk and never found adulterated. The respondent produced Hanuman (DW 1) in his defence.

4. The learned Magistrate considered the entire evidence on the record and arrived at a conclusion that although the prosecution succeeded in proving that the sample of milk taken from the respondent was found adulterated, but the respondent was deprived of his valuable right to have the sample analysed by the Director of Central Food Laboratory on account of inordinate delay on the part of the appellants in launching prosecution against him. Hi, therefore, relying on an authority of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 acquitted the respondent of the offence with which be was charged at the trial. Aggrieved by the acquittal of the respondent, the appellants have come up in appeal to this Court after obtaining special leave to appeal.

5. I have carefully gone through the record and heard arguments at length. Firstly, it has been contended on behalf of the respondent that the prosecution in this case against him has been initiated by Umaid Singh, Food Inspector on 24th December, 1969, who claimed to have baen authorised by the President, Municipal Council, Jaipur, to launch such prosecution against offenders under the Act vide Gazette Notification No. 2034/ M. S. dated 6.12.1968. According to the leraned Counsel for the respondent, the Presidant, Municipal Council, Jaipur, was not a local authority within the meaning of Clause (viii) of Section 2 of the Act and, therefore, he was not empowered to authorise Shri Umaid Singh, Food Inspector by general or special order to initiate prosecution against the respondent for an offence punishable under Section 7 read with Section 16 of the Act. The leraned Counsel appearing on behalf of the appellant, on the other hand, urged that the Chairman of the Municipal Council, Jaipur, could either himself accord the necessary sanction to prosecute the respondent or could under the law authorise any other person to do so. According to his submission, the President, Municipal Council, Jaipur, while authorising Sari Umaid Singh, Food Inspector, to launch prosecution against an offender under the Act, acted under statutory power and functioned as local authority itself within the meaning of Clause (viii) of Section 2 of the Act. In support of his above contention, he invited my attention to Section 67 of the Rajasthan Municipalities Act, 1959 and to several following authorities of this Court Badri v. The State AIR 1986 Raj 203, Ratan Lal v. State 1963 RLW 634 and Swaroop Ram v. State , wherein it was held that Clause (d) of Section 67 of the Rajasthan Municipalities Act empowers Chairman of a municipality to accord sanction to prosecute an offender for an offence punishable under the Act and that while doing so, he acts as local authority itself The leraned Counsel for the appellants further argued that if a Chairman of a Municipal Council, instead of himself according sanction, authorises any other parson to institute complaint under Section 20 of the Act, such an authorisation is valid in the eye of law.

6. I have given my anxious consideration to the rival contentions. It has been repeatedly held by this Court in the referred-to-above decisions that by virtue of powers given to him under Clause (d) of Section 67 of the Rajasthan Municipalities Act, 1959, a Chairman of a Municipality also can accord sanction to institute a complaint under Section 20 of the Act and, that, while doing so, he acts or functions as local authority itself. The term 'local authority' has been defined in Clause (vii) of Section 2 of the Act, which reads as follows:

(viii) 'Local Authority' means in the case of-

(1) A local area which is-

(a) a Municipality, the Municipal Board or Municipal Corporation;

(b) a cantonment, the cantonment authority;

(c) a notified area, the notified area committee;

(2) Any other local area, such authority as may be prescribed by the Central Government or the State Government under this Act;

From the above definition, it is evident that the Municipal Council, Jaipur, was a local authority for the local area and it could accord sanction to institute complaint against the respondent under Section 20 of the Act. Under Clause (d) of the Rajasthan Municipalities Act, the power to accord sanction could be exerised lawfully by its Chairman. If the President, Municipal Council, Jaipur, instead of himself according sanction to prosecute the respondent, authorised Shri Umaid Singh to institute complaint under Section 20 of the Act, it cannot be said that such an authorisation was invalid. What the Court has to see under Section 20 of the Act is only whether the complaint has been instituted against the respondent by any authority or persons mentioned in Section 20 of the Act. Section 20 clearly lays down that the following persons and authorities can institute prosecution under the Act:

(1) The Central Government or a person authorised by the Central Government in this behalf.

(2) The State Government.

(3) A person with the written consent of the Central Government or the State Government.

(4) A local authority.

(5) A person with the written consent of the local authority.

(6) A person authorised in this behalf by the State Government.

(7) A person authorised in this behalf by a local authority, and J

(8) A purchaser referred to in Section 12 of the Act provided he is armed with a copy of the report of the Public Analyst and files it along with the complaint.

As the prosecution has been initiated in the instant case by Shri Umaid Singh, who was authorised in this behalf by the Chairman of the Municipal Council, Jaipur, who, could, in exercise of the powers given to him under Clause (d) of Section 67 of the Rajasthan Municipalities Act, 1959, sanction a prosecution under the Act, and could also authorise any person to file complaint under the Act, I do not feel persuaded to hold that there was want of due authority for the prosecution under Section 20 of the Act and that the trial court was deprived of jurisdiction on this score.

7. The leraned Counsel appearing on behalf of the respondent strenuously urged before me that the power given to the President, Municipal Council, Jaipur, under Clause (d) of Section 67 of the Rajasthan Municipalities Act, 1959, is subject to the provisions of Section 78 of the said Act and that the authorisation by the Chairman cannot be equated with the authorisation by the Municipal Board itself, unless the Board has by any special resolution authorised its Chairman to delegate the powers to accord sanction to any other person as required under Section 20 of the Act. Sections 67 and 78 of the Rajasthan Municipalities Act are reproduced below to appreciate the correct legal position in the light of the arguments advanced by the leraned Counsel for the respondent:

Section 67. Functions of Chairman.--It shall be the duty of the Chairman of a Board-

(a) to convene and preside, unless prevented by reasonable cause, at all meetings of the Board and subject to the provisions of the rules for the time being in force under Clause (a) to Section 88 to regulate the conduct of business at such meetings;

(b) to watch over the financial and executive administration of (he Board and bring to the notice of the Board and defect therein;

(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 provisions of Section 78 and of the rules for the time being in force, to perform such other executive functions as may be performed by (sic) behalf of the Board over which he presides;

(e) to exercise supervision and control over the acts and proceedings of all officers and servants of the Board in matters of executive administration and in matters concerning the accounts and records of, the Board and subject to the rules for the time being in force, and to the provisions of Chapter XIII, to dispose of all questions relating to the service of the said officers and servants and their pay, privileges and allowances;

(f) to furnish to such officer as may be appointed or authorised by the State Government in this behalf, a copy of every resolution passed at any meeting of the Board; and

(g) to furnish any extract from the minutes of the proceedings of the Board or of any Committee or other document or thing which the officer, appointed or authorised by the State Government in this behalf, from time to time, calls for under Section 283.

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 (subject to such restrictions, limitations and conditions as may be prescribed) be delegated, by the Board to the Chairman or to Vice-Chairman or to the Executive' Officer or to the Secretary or to the Chairman of any Committee or to one or more stipendiary or honourary 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;

(2) When the office of a Chairman becomes vacant and there is no Vice Chairman to take over, the Board shall, (at a meeting to be called in prescribed manner) delegate the powers, duties and executive functions of the Chairman to such member of -the Board a' it thinks proper to be exercised by him till a Chairman is elected in accordance with the rules in force.

From a bare reading of Section 78 and Clause (d) of Section 67 of the Rajasthan Municipalities Act, 1959, it appears that all other duties, powers and functions of a Board shall be exercised by its Chairman subject to the provisions of Section 78. The words 'subject to the provisions of Section 78' clearly indicate that if the Municipal Board, by any special resolution, has authorised any person specified in Section 78 to accord sanction to file complaints against offenders for offences punishable under the Act, the Chairman of the Municipal Board shall not exercise such power under Section 67 Clause (d) of the Rajasthan Municipalities Act, 1959, but, in the absence of any such authorisation under Section 78 by the Board, the Chairman can exercise the functions of the Board and can either himself sanction prosecution or authorise any other person to do so and his act will bind the Board, because while exercising his powers under Section 67 Clause (d) of the Raja3than Municipalities Act, he acts and functions as Municipal Board i.e local authority itself and because according of sanction to prosecute an offender under the Act is purely an administrative act. Hence I have no hesitation in holding that the Chairman of the Municipal Council, Jaipur, could delegate the power to file complaints under the Act to Umaid Singh, Food Inspector and that the authorisation to Umaid Singh, Food Inspector, was not bad.

8. Another contention put forward by the leraned Counsel for the respondent is that the complaint in this case was instituted after considerable delay of about 5 months and that the complainant could not afford any reasonable explanation for the inordinate delay in launching prosecution against the respondent According to the leraned Counsel, the respondent could not exercise his right under Section 13(2) of the Act to have his sample of milk analysed by the Director, Central Food Laboratory due to belated prosecution and, therefore, he was rightly acquitted by the trial court. The leraned Counsel for the appellants could not succeed in refuting the above contention. He merely argued that a mere delay of about 5 months, if any, in instituting complaint against the respondent is not fatal to the prosecution case. From perusal of the record, it appears that the sample of the milk was purchased from the respondent by the Food Inspector on 30 9.1969 at 6 a. m. It was sent to the Public Analyst for analysis the very day. The Public Analyst analysed the sample on 3.10.1969 as is evident from his report Ex' P 5. Inspite of obtaining the report from the Public Analyst on 10 10.1969. Shri Umaid Singh, Food Inspector could not make the complaint in the court of the Municipal Magistrate, Jaipur, till 24 12. 1969 Upon receiving the complaint the learned Magistrate issued process against the respondent and it appears from his order-sheet that the respondent appeared in his court on 26.2.1970 in response to the summons issued to him. On the very day he filed an application that the bottle containing the sample of milk produced by him may be sent to the Director, Central Food Laboratory, for analysis The Food Inspector on seeing the bottle produced by the respondent stated before the court that it did not contain his signatures tad that this bottle should not be sent to the Director, Central Food Laboratory. The respondent, thereupon, requested the court to send the bottle, which was to be produced in the court by the Food Inspector, for analysis to the Director of Central Food Laboratory. Thereupon, the trial court directed the Food Inspector to produce the bottle containing the sample of milk before it for being sent to the Director aforesaid for analysis. The bottle, however, could not be sent till 1.9.1970, for no fault of the respondent. In this manner, there was a gap of about 6 months between the time when the sample of milk was taken by the Food Inspector and the respondent appeared in the court to answer the charge against him. It is true that sixteen drops of formalin were added to each of the three bottles containing sample of milk but the bottle of milk given to the respondent was liable to be decomposed and defy analysis after a period of about 6 months. The question of exercise of right given to the respondent under Section 13(2) of the Act could not arise until the court took cognizance of the offence and the respondent against whom the cognizance was taken had appeared in the court in response to the summons. The respondent, therefore, was deprived of his right to have his sample analysed by the Director, Central Food Laboratory on account of belated prosecution. Record of this case reveals that a bottle containing sample of milk was sent to the Director, Central Food Laboratory, Calcutta, but it was found unfit for analysis vide his report dated 17.9.1970 as the sample was highly decomposed. The trial court rightly held that the respondent was deprived of his valuable right to challenge the report of the Public Analyst in the manner prescribed by Section 13(2) of the Act due to inordinate delay in launching prosecution. Apart from this the trial court has given other reasons for acquittal of the respondent with which I fully agree.

9. The result is that there are no sufficient grounds for interference with the findings of acquittal of the respondent. The appeal against acquittal has, therefore, no force and is hereby dismissed.


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