1. This reference which has been made to this Court under Section 438, Criminal P.C., by the learned Sessions Judge of Nadia, raises a point of some importance and interest. The accused Nehal Chand Marwari was convicted by the Deputy Magistrate of Krishnagar for offering resistance and obstruction to an authorized person inspecting or examining food believed to be adulterated and thereby committing an offence under Section 21 read with Section 12 (2), Bengal Food Adulteration Act (Act 6 of 1919). He was also convicted of an offence punishable under Section 186, I. P. C, namely, voluntarily obstructing a public servant in the discharge of his public functions.
2. The facts are that the accused person was in possession of certain tins of mustard oil. A Sanitary Inspector of the Municipality seized the tins on the ground that their contents were adulterated. It is alleged, and the trying Court has found, that the accused offered resistance to and obstructed the seizure.
3. The question in respect of which the reference is made, is whether the Sanitary Inspector was duly authorized to inspect and examine food alleged to be adulterated, and if that is answered in the negative there is a further question whether he is a public servant within the meaning of the Indian Penal Code. By rules made under the Act by the Local Government, the powers exercisable under Sections 10 and 12 can be exercised by the Health Officer or when specially authorized by the local authority, the Sanitary Inspector. On 11th July 1927 the Chairman of the Municipality which is in the circumstances of the case, the local authority for the purposes of the Act, purported to authorize the Sanitary Inspector to exercise the powers and to perform the duties mentioned in Sections 10 and 12. By another order of 20th July 1930, also signed by the Chairman, the Sanitary Inspector is directed to perform the duties of Health Officer, until further orders. Both these orders were in existence in the sense that they had not been revoked or otherwise modified at the date of the alleged offence. With regard to the first order, that is to say, the order authorizing the Sanitary Inspector to perform the duties and exercise the powers mentioned in Sections 10 and 12, it is pointed out that the order has to be made by the local authority. The local authority in a case of Municipality is defined by Section 2, Sub-section (4) as the Municipal Commissioners. There is no power under the Act, for the Chairman of the Municipality to act on behalf of the Municipal Commissioners and I am of opinion that the learned Sessions Judge is right in saying that in his opinion Section 44, Bengal Municipal Act 1884, is not applicable to the present case, because I do not think that the authorization of the Sanitary Inspector under the Food Adulteration Act can be described as the transaction of business connected with the Municipal Act, or that exercise of powers vested by the Municipal Act in the Commissioners. I think therefore as far as the Pood Adulteration Act is concerned, the Sanitary Inspector was not authorized' in the manner provided by the Act.
4. It is suggested on behalf of the prosecution that by virtue of the order of 20th July 1930 the Sanitary Inspector was a Health Officer within the meaning of Rule 5. Again, I agree with the Sessions Judge that he cannot be regarded as a Health Officer by reason of that order. The order does not purport to appoint; him as an Officiating Health Officer or a substantive Health Officer, but merely directs him to perform the duties of a Health Officer until further orders. Apart from that difficulty however it is not denied that the appointment of a Health Officer is an appointment falling within the proviso to Section 46, Bengal Municipal Act, that is to say, an appointment to a post the salary of which is Rs. 50 per mensem or upwards. That being so the Chairman of the Municipality has no power to make the appointment without the sanction of the Commissioners at a meeting and it is not contended that any such sanction has been given. I am of opinion therefore that the conviction under Section 21, Bengal Food Adulteration Act, read with Section 12 (2) of the same Act, is bad and with regard to this the reference was properly made by the learned Judge.
5. But that however does not conclude the matter, and the learned Judge evidently, has taken the view that the conviction under the local Act and the conviction under the Indian Penal Code stands on the same footing. With that view I cannot agree. Under Section 19, Food Adulteration Act, every person authorized under Section 12, shall be deemed to be a public servant within the meaning of Section 21, I.P.C. Expln. (2) to that section says:
Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect may be in his right to hold that situation.
6. Now it may be conceded that the Sanitary Inspector in this case was not in actual possession of the situation of a Health Officer but it appears to me that he was undoubtedly in actual possession of the situation of a Sanitary Inspector who had been authorized under Rule 5 of the rules in the Act. It may be that his authorization was defective but in pursuance of the order of the Chairman he has assumed and has been performing exactly the same duties as he would have assumed and performed if properly and validly appointed with the sanction of the Municipal Commissioners.
7. Mr. Talukdar who appears in support of the reference has sought to distinguish between what he has described as a technical defect in an appointment and a defect which has occasioned by want of jurisdiction in the appointee to make the appointment. The explanation however does not speak of technical defect; on the contrary it says whatever legal defect there may be in his right to hold that situation. I am of opinion that he was actually on the date of the incident in question, holding the situation of a public servant and for that reason although the [conviction under Section 21 read with Section 12 (2), Food Adulteration Act, must be set aside the conviction under Section 186, I.P.C., must stand.
8. The Reference is accepted with regard to the first conviction and rejected as regards the second. I see no reason to interfere with the fine inflicted by the Deputy Magistrate and it will be treated as a fine imposed under Section 186, I.P.C.