1. These are three rules against orders passed by the Municipal Magistrate under Section 421, Calcutta Municipal Act. They relate to a large quantity of mustard oil which the Superintendent of Police, 24 Parganas, purchased from different contractors and had for sale to the numbers of police force under him in a ration shop. The only reason that there are three separate cases is that the total quantity of oil with the Superintendent was divided up according to the contractors from whom he had bought it. Nevertheless though this division has been made, the main point before me is an objection by the contractors that they were not allowed to be heard.
2. The circumstances are certainly very peculiar. The Superintendent himself, after first having some analysis made by the Public Analyst, moved the Municipal Magistrate for the orders in question to be made. He himself informed the contractors of the proceedings and they duly appeared before the Magistrate. The Magistrate has refused to hear them on the ground that the provisions of Sections 413, 419, 420 and 421 of the Act show that the only person entitled to be heard under Section 421 is the person in whose possession the adulterated food was found. It is almost accidental that the provisions of Section 421 apply at all in the sense that it is only because the oil was with the Superintendent for sale in ration shops and not for issue as rations (with-out payment) to the force that the provisions have any application. But for this accident, probably the course that would have been followed would have been a prosecution on the complaint of the Superintendent of the contractors for selling him adulterated oil under the appropriate provisions of the Calcutta Municipal Act. Personally I think it is unfortunate that in any case this procedure was not followed in the first place. The result has been very anomalous. The proceedings were brought at the instance of the Superintendent obviously with the intimation (intention ?) in some way, if possible, of protecting himself in the event of any question of his having to pay for the mustard oil to the contractors. Clearly there is no thing whatever to prevent a person in the position of the Superintendent who finds that he has noxious food in his possession, to destory it without any reference to the Magistrate for an order. The whole scheme of the sections shows that they are expected to be applied, as a result of vigilance of inspectors and as a means of enforcing destruction, on a person who happens to be found in possession. They never contemplate the person himself going to the Court for an order for some ulterior purpose. The result has been that the leaned Magistrate by examining the provisions of the sections has come to the conclusion that at most the only person entitled to be heard before him is the person in whose possession the adulterated food was found deposited for the purpose of sale and he gives apt reasons pointing out the difficulties that would arise if it were held that it was necessary to trace back the history of the particular article to the various sellers and to give notice to all the various middlemen through whose hands the article might have passed before a destruction could be made. But in the present case the facts are, as I have pointed out, peculiar and different. The whole object of the order in fact is to bind, if possible, the contractors in some way, yet when they were present at the Court at the instance of the Superintendent, who acted very fairly in the matter, then the technical objection was taken and they were not allowed to be heard. The provisions of Section 421 and of the preceding sections are very vague on the question of what procedure is to be followed by the Magistrate and who is to be heard.
3. As I read the sections, the assumption appears to be that from the time of seizure the person in whose possession the article seized is found is always present. Section 420 contemplates his giving or refusing consent and Section 421 seems to contemplate that when the food is taken before the Magistrate he again will be present. Section 421 (3) contemplates in fact his being awarded compensation on the spot in appropriate circumstances. There is, however, no specific provision for the procedure in the very peculiar circumstances of the present case. It seems to me that the only fair procedure for the Magistrate to follow was to have heard the persons really interested in the matter, namely, the contractors. As I have pointed out, the cases were divided on the basis of the oil supplied by the several contractors,--a division which was quite pointless if there were no question of the contractors being heard in the matter. It is contended in the fact that the contractors have evidence of a responsible analyst establishing that the oil is satisfactory. It seems to me that in these very peculiar circumstances the Magistrate ought to have allowed them to produce that evidence before he passed the order of destruction.
4. Mr. Choudhury raised a preliminary objection that this Court had no power under Section 439, Criminal P. C., to interfere with the order of the Magistrate passed under S. 421, Calcutta Municipal Act. This question has been before this Court recently and in the case of the Corporation of Calcutta v. Bhupal Chandra Sinha, Cri. Revn. no. 723 of 1949 : (A. I R. (37) 1950 Cal. 421), Chunder and Guha JJ. have held specifically that this Court has power to revise ante order passed by a Municipal Magistrate under S. 421 of the Calcutta Municipal Act. In a previous case there was a difference of opinion with regard to the very same section between Mookerjee and Das Gupta JJ. Abdulla Hasoon & Co. v. Corporation of Calcutta, Cri. Revn. No. 679 of 1948 : (A. I. R. (37) 1950 Cal. 86 : 51 Cr. L. J. 346), the former holding that the Court had power of revision and the latter holding the opposite view. But as the learned Judges were agreed that the particular case had no merits, the difference was not resolved further.
5. The point has been argued to some extent before me and the argument before me was so clearly based on an erroneous reading of the judgment of Suhrawardy J. in the case of Krishan Doyal v. Corporation of Calcutta, 154 Cal. 532 : (A. I. R. (14) 1927 Cal. 509 : 28 Cr. L. J. 407) and I propose to point out the error. With great respect it seems to me that Das Gupta J. in referring to this judgment was influenced by an argument based on this erroneous interpretation. In the case of Ram Gopal v. Corporation of Calcutta, 52 Cal. 962 : (A. I. R. (12) 1925 cal. 1251 : 26 Cr. L. J. 1533) the matter for decision was whether the Corporation was bound to hear the opposite party before applying to the Magistrate in a proceeding under Section 363, Calcutta. Municipal Act. In that case the Advocate General also specifically took the point that the Court had no power in any view to interfere in revision with the order of the Magistrate. Sir Lancelot Sanderson, C. J. gave a clear decision that the order of the Magistrate was a judicial order made by him either in the exercise of a criminal or civil jurisdiction and that the Court had jurisdiction to revise the order of the Municipal Magistrate. Part of the argument in the judgment is that the Municipal Magistrate in question being a Presidency Magistrate would be a criminal Court within the meaning of Section 6, Criminal P. C. In the later case, the sole question was whether proceedings before the Magistrate were bad because the opposite party had been examined on oath. The argument was that the Code of Criminal Procedure applied to the proceedings which also related to a demolition order under Section 363 of the Act and that as the Code applied the examination of the opposite party under the provisions of Section 842 of the Code could not be on oath and therefore the proceedings were bad as the oath had been administered. The learned Judges dealt solely with this point and no question was raised before them as to the jurisdiction of this Court to interfere with the order of the Magistrate. The assumption clearly in the judgment is that the Court has such power to interfere and the final decision was refusal to interfere not on the ground that the Court had no power but on the ground that the proceedings in the lower Court were not vitiated by any illegality or irregularity. Therefore, there is nothing in this case to weaken in any way the decision of Sanderson C. J. in the earlier case. In course of his judgment, however, Suhrawardy J. said:
'If a party to a proceeding under Chap. XII, Criminal P. C. is not an accused person, it is hardly conceivable that a party to a proceeding under the Municipal Act relating to demolition of and unauthorised structure is an accused person and as such exempted from administration of oath. It has however been argued on the authority of the case of Ram Gopal v. Corporation of Calcutta, 52 Cal. 962 : A. I. R. (12) 1925 Cal. 1251 : 26 Cr. L. J. 1533) that a Municipal Magistrate in Calcutta is a Presidency Magistrate and so the Criminal Procedure Code will apply to proceedings before him in all its details. The case referred to does not lay down any such proposition. The learned Chief Justice has made some observation which is clearly an obiter and not necessary for the decision of that case, namely, that the Municipal Magistrate being a Presidency Magistrate the High Court has jurisdiction under Section 439, Criminal P. C. to revise his order.' (Italics are mine).
6. The argument before me was that the decision in the earlier case had been weakened by the later decision because in the later case it had said that the earlier remark that 'the Municipal Magistrate being a Presidency Magistrate the High Court has jurisdiction under Section 439, Criminal P. C., to revise his order.' was obiter. It is patently a misreading of the passage above quoted. 'Some observation' referred to is not specifically quoted in the judgment of Suhrawardy J. and the last words following the word 'namely' clearly refer to the word 'decision'. It seems hardly necessary to labour the point, as a careful reading of the passage quoted could surely leave nobody in the slightest doubt as to the meaning of the last lines. The judgment did not and could not say that the view that this Court had power to interfere in revision with the orders of the Magistrate had been expressed merely as an obiter in the earlier case, when in fact there was a clear decision on that point in the earlier case. And in fact the decision was substantially followed in the later case by the course adopted.
7. The result is that the Rules are made absolute, the orders of the learned Magistrate are set aside and the cases remanded for him to give the contractors an opportunity to present such evidence as they may have on the quality of the oil in question. The Corporation of Calcutta also may adduce such evidence as they desire.