1. This is a reference by the Sessions Judge of North Malabar under the following circumstances. The accused in C.C. No. 153 of 1955 on the file of the Sub-Divisional Magistrate, Tellicherry were prosecuted under the Madras Prevention of Adulteration Act and the Prevention of Food Adulteration Act (Central Act No. XXXVII of 1954) for adding water to milk. The authority who initiated the prosecution was the Sanitary Inspector of Gannanore. On the merits, as pointed out by the learned Sessions Judge there is really no case for the accused. But the point of law that has been raised before the Sessions Judge for the purpose of reference to this Court is that the prosecution has not been launched by the proper authority, that is to say, the Sanitary Inspector who has filed this prosecution is incompetent to launch this prosecution under Section 20 of the Central Act XXXVII of 1954. Section 20 of that Act is as follows:
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 authorised in this behalf by the State Government or a 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. Reliance is placed on Section 25(2) by the prosecution in support of its argument that the Sanitary Inspector may initiate prosecution.
3. Section 25 of the Central Act is as follows:
25 (1). If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that corresponding law shall upon such commencement stand repealed.
(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bylaws relating to the prevention of adulteration of food, made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act continue in force until altered, amended or repealed by rules made under this Act.
It is clear from the provisions of Section 20 of Act XXXVII of 1954 that a prosecution can be instituted only by the following persons, (1) the State Government or with its written consent; (2) a local authority and (3) a person authorised in this behalf by the State Government or a local authority. Local authority is defined in Section 2, Clause (viii) of the Act.
4. According to this clause:
'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 State Government under this Act.
5. It is contended by the learned Public Prosecutor that under the provisions of Clause (2) of Section 25 of Act XXXVII of 1954 the rules framed already under the Madras Prevention of Adulteration Act and the Public Health Act have been saved so far as they are not inconsistent with the Act. Under Section 18 of the Madras Prevention of Adulteration Act, 1918 (Act III of 1918),
no prosecution under this Act shall be instituted except on the complaint of the purchaser or with the consent in writing of the Local Executive Officer.
6. 'Local Executive Officer' has been denned in Section 2 of Act III of 1918 thus:
'Local Executive Officer', means
(i) in the City of Madras, the Commissioner of the Corporation of Madras.
(ii) in the area of any other municipality, the executive authority of the municipality, or if the municipal council is superseded or dissolved...any person appointed by the State Government to exercise and perform the functions of the executive authority under Clause (A) of Sub-section (3) of Section 41 of this Act, or such public servant as may be designated by the State Government to exercise the functions of a Local Executive Officer under this Act, as the case may be.
Section 3 empowers Local Executive Officer to delegate his powers. Rule 3 framed under the Madras Prevention of Adulteration Act runs thus:
The Local Executive officer may delegate in writing all or any of his powers under the Act to any Assistant Health Officer, health or Sanitary Inspector....
There is no doubt that the Sanitary Inspectors have been delegated these powers by the Local Executive Officer under Rule 3. Under the Madras Prevention of Adulteration Act the Local Executive Officer may be either the Commissioner of the Corporation of Madras or the executive authority of the municipality or persons to whom the Local Executive Officer may delegate his powers. But under the present Act (Act XXXVII of 1954) which overrides these State Acts, it is only the class of persons mentioned in Section 20 than can launch the prosecution, that is, the State Government or with its written consent, in the case of municipality, the municipal board or municipal corporation or any person authorised by either of these officers. The authorisation in this case is under the Madras Prevention of Adulteration Act and the persons authorised are not the persons authorised under Section 20 of Act XXXVII of 1954. They are not authorised by the Government or the municipal board or municipal corporation.
7. It is pointed out by the learned Public Prosecutor that under the Public Health Act a Health Officer of a District is authorised by the Government to launch prosecutions. Section 16 of the Public Health Act on which he relies is as follows:
Notwithstanding anything contained in the Madras City Municipal Act, 1919, the Madras District Municipalities Act, 1920, the Madras Local Boards Act, 1920, the Madras Village Panchayats Act, 1950, the Madras Prevention of Adulteration Act, 1918, and the Places of Public Resort Act, 1888, the Health Officer of a local authority shall perform such of the functions and discharge such of the duties, of its executive authority in regard to public health matters under any of the provisions applicable to such local authority contained in the Acts aforesaid, subject to such appeal and control as the Government may, by general or special order determine.
The Government in its Notification G.O. No. 1635 (Public Health) of 1941 has authorised the Health Officer in the case of a municipality to exercise all the powers under Sections 9, 11, 14, 15, 16, and 18 thereof. These sections include the powers to prosecute. If this Notification is treated as an authority to the Health Officer to prosecute, it will be construed as power given to the Health Officer only. That is to say if this Notification is construed as an authority by the Government, then the Health Officer will be the authority under the notification to launch the prosecution. But in the case under reference it is the Sanitary Inspector who has launched the prosecution. The delegation that is referred to in Section 3 and the rules framed under the Madras Prevention of Adulteration Act will amount to delegation of a delegated authority which is not valid under Section 20 of the Central Act. The prosecution in this case has therefore been launched by one who is authorised neither by the Government nor the municipal board. The objection as to the launching of the prosecution is valid and the reference of the learned Sessions Judge is accepted. The convictions and sentences of the accused are set aside and the fines if collected will be refunded.
8. Crl. R.C. Nos. 92 and 93 of 1956. - In these revision petitions a preliminary point is raised by the petitioners that the prosecution has not been validly launched according to Section 20 of Act XXXVII of 1954. In these cases the prosecutions were launched by the Sanitary Inspectors of the panchayats. These officers do not come within the category of persons mentioned in Section 20 of Act XXXVII of 1954. Therefore the prosecutions have not been validly launched against these petitioners. The preliminary objection is therefore upheld and the proceedings are quashed in respect of these two cases. This does not prevent a prosecution being launched in these two cases (Crl. R.C. Nos. 92 and 93 of 1956) by the proper authority.