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Rampada Majhi Vs. Nagendranath Chakravarty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1968CriLJ557
AppellantRampada Majhi
RespondentNagendranath Chakravarty
Cases ReferredHowrah Municipality v. Byron and Co.
Excerpt:
- .....and sentence passed under section 7(1) read with section 16(1)(a)(i) of the prevention of food adulteration act. the petitioner was sentenced to pay a fine of rs. 800, in default to s.i. for one month.2. the prosecution case is that on december 9, 1961 the food inspector of the bally municipality came to the grocery of the petitioner at 210 gossainpara road, bally and took samples of co3oanut oil, put them into three dry and clean phials and sealed and labelled them properly in the presence of witnesses. one sample was made over to the accused, another was bent to the public analyst while the third was preserved in the municipal office. the public analyst reported the sample to be adulterated and then this prosecution was initiated after obtaining sanction from the administrator.....
Judgment:

A.K. Das, J.

1. This application in revision is directed against an order by the learned Additional Sessions Judge, Howrah dismissing the petitioner's appeal against conviction and sentence passed under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The petitioner was sentenced to pay a fine of Rs. 800, in default to S.I. for one month.

2. The prosecution case is that on December 9, 1961 the Food Inspector of the Bally Municipality came to the grocery of the petitioner at 210 Gossainpara Road, Bally and took samples of co3oanut oil, put them into three dry and clean phials and sealed and labelled them properly in the presence of witnesses. One sample was made over to the accused, another was Bent to the public analyst while the third was preserved in the municipal office. The public analyst reported the sample to be adulterated and then this prosecution was initiated after obtaining sanction from the Administrator of the Bally Municipality.

3. Mr. Banerjee, learned Advocate for the petitioner submits that the Administrator of Bally Municipality not being a local authority within the meaning of Section 20 read with Section 2(viii) of Prevention of Food Adulteration-Act, the prosecution is void and without jurisdiction.

4. The sample of coconut oil was taken by the Sanitary Inspector of the Bally Municipality, Nagendra Chakravorty on December 9, 1961. The Municipality was later superseded by an order of the State Government and Sri S.M. Guha was appointed Administrator. The Administrator accorded sanction to the prosecution on February 12, 1963. It is submitted that the Administrator S.M. Guha not the local authority within the meaning of Section 20 read with Section 2(viii) of the Prevention of Food Adulteration Act and the magistrate therefore had no jurisdiction to take cognizance. It is argued that in the case of Bally Municipality, the local authority within the meaning of Prevention of Food Adulteration Act was Chairman and commissioners of the Municipality and there is nothing in the said Act which showed that because of supersession of the Municipality the Administrator comes within the meaning of local authority. Section 554 of the Bengal Municipal Act 1932 did not authorise an Administrator to perform the powers and duties of the Chairman under 'other laws' but only permitted him to perform the duties and powers under the Bengal Municipal Act itself. There is an amendment of the Section 554 by the amending Act 21 of 1954, substituting the words 'or any other Act, or any ordinance or any rule, bye law or notification or subsidiary legislation made under the provisions of the Act or such other Act or such ordinance or such regulation' for the words 'or any rule or bye law made thereunder' but this amendment did not receive the assent of the President and therefore it cannot be held to amend or extend the definition of 'local authority' as contained in Prevention of Food Adulteration Act. In support Of this contention, the learned Advocate has referred to a single Bench decision of this Court reported in 1958 Cri L.J. 169 (2) (Cal), Administrator, Howrah Municipality v. Byron and Co. The learned Judge held as follows:

Under Section 554 of the Bengal Municipal Act as it stood in the Act of 1982, when an order of supersession has been gassed, tie powers and duties which may under the provisions of this Act (Bengal Municipal Act) or an rule or bye-law made thereunder be exercised and performed by the Chairman and by the commissioners whether at a meeting or otherwise, shall during the period of supersession be exercised by such person as the State Government may direct, i.e shall be exercised and performed by the Administrator. In its original form this section did not authorise the administrator to exercise the powers which might be exercised by the Chairman and the municipal commissioners under any other Act than Bengal Municipal Act.

. . . . .It does not appear to me that the definition of local authority as contained in Section 2(viii) can be deemed to have been extended by amendment of Section 554 by the W.B. Act 21 of 1954. It is to be pointed out that West Bengal Act 21 of 19S4 did not receive the assent of the President and therefore It cannot be held to amend or extend the definition of local authority as contained In the Prevention of food Adulteration Act.

The reported decision rests on the view that the amending Act required the President's assent which it did not receive and therefore it could not amend or extend the definition of local Authority as contained in Prevention of Food Adulteration Act. The decision however gives no-reason why the President's assent is necessary for amending the Municipal Act, or how the question of amending or extending the meaning of Local Authority under the Prevention of Food Adulteration Act arose. Mr. Banerjee, learned Advocate for the petitioner submitted that the relevant provision in the Municipal Act came under the Concurrent List, List III of the Constitution being covered by items 18 and 33 and as such, President's assent was necessary to make it effective. The amendment relates to the power of the Administrator under Section 554 of the Bengal Municipal Act after the commissioners of a municipality are superseded under Section 553 of the Act. Under Section 15 of the Bengal Municipal Act, municipality is a body corporate. Under Section 554 of the Act, the municipality is not superseded; but only the Chairman and the commissioners The Act provides that municipality acts through its Chairman and the Commissioners; in case of supersession, however, the Administrator is empowered to exercise the powers of the Chairman and commissioners under Section 554 of the Act, As to how a municipality should function in either case is a subject covered by item 5 of List II of the Seventh Schedule of the Constitution under the head Local Government and has nothing to do with items in concurrent list referred to.

5. Section 20 of the Prevention of Food Adulteration Act provides for sanction of prosecution by the local authority and Section 2(viii) defines the Municipality as that Authority. Bengal Municipal Act provides as to how a Municipality, a body corporate acts in normal times and also when the Chairman and the commissioners are superseded. The two provisions may stand together and are not in conflict; indeed, the provisions are complementary to each other. Therefore the question either of conflict or of the State Act amending or extending the definition of Local Authority in the Prevention of food Adulteration Act does not arise. The State Legislature was therefore competent to amend the Municipal Act of 1982 by Act 21 of 1954 and this amendment was passed with retrospective effect. The result is that it is no longer open to question the validity of the amendment nor is effectiveness and the amendment for all purposes must be considered to be part of the original Act. In deciding therefore the authority of the Administrator for performance of the rights and duties of the Chairman and the commissioners of the superseded municipality, we have to read Section 554 as it stands after the amendments of 1954. The decision of Sen, J. in the reported case does not appear to have considered these aspects of the matter. The decision is therefore unacceptable.

6. Amending Act 21 again came into force from 22nd of September, 1954 while the Food Adulteration Act came into force on the 29th of September, 1954. When, therefore, the Prevention of Food Adulteration Act was brought into force, the Administrator was authorised under Clause (b) of Section 554(1) to perform the right and duties of the Chairman and the commissioners not only under the Bengal Municipal Act but also under 'other Acts.' The amending Act having been passed earlier with retrospective effect, any reference in the definition of Local Authority in the Food Adulteration Act must be read in the light of the corresponding provisions in the Bengal Municipal Act. Section 554(1)(b) of the Bengal Municipal Act authorises the Administrator to perform the functions of the Chairman and the commissioners whether at a meeting or otherwise. The Administrator is therefore empowered to give consent to prosecute in terms of Section 20(1) of the Prevention of Food Adulteration Act read with Section 554 of the Bengal Municipal Act.

7. Our Constitution makes a clear division of authority between the Centre and the States and each is supreme in its own exclusive sphere. The question of repugnancy arises only in respect of the Concurrent List, List III. Article 254 deals with inconsistency between laws made by Parliament and the laws made by State Legislature. Clause (1) of Article 254 says that if the State law relating to a 'concurrent subject' is repugnant to a Union Law relating to the subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall to the extent of such repugnancy be void. Clause (2) engrafts an exception to the general rule laid down in Clause (1) and provides that notwithstanding repugnancy to an earlier law of the Union, the State law will prevail if President assents to it. The proviso to Clause (2) empowers the Union Parliament to repeal or amend a repugnant State law even-though it has become valid by virtue of President absent. The question of repugnancy therefore arises in connection with the subjects enumerated in the Concurrent List, List 10 of the Seventh Schedule. Bengal Municipal Act comes within the exclusive State List and the amendment of 1954 (Act 21 of 1954) is not in conflict with any Union law nor did it require assent of the President and the definition of 'Local Authority' in the subsequent Prevention of Food Adulteration Act has to be read with the provision of Section 554 of the Bengal Municipal Act as amended. The consent in writing by the Administrator is therefore valid consent within the meaning of Section 20(1) of the Prevention of Food Adulteration Act and conferred jurisdiction on the magistrate.

8. Mr. Banerjee has referred to an unreported decision of the Patna High Court in Cr. Rev. No. 256 of 3952 (Pat), from the notes published by AIR in Vol. 42 (1955) of the unreported decisions. holding that the Special Officer under the Bihar Municipal Act was not the Local Authority for sanctioning prosecution under Bihar Food Adulteration Act of 1948. The reasoning leading to the decision are not available. It may however be pointed out that the corresponding Section 388 of the Bihar Municipal Act is the same as Section 554 of the Bengal Municipal Act of 1932 before amendment of 1954. This decision therefore is of no assistance to the petitioner.

9. The learned Advocate for the opposite party has also referred to a decision of the Rajasthan High Court reported in 1963 (2) Cri LJ 589 (Raj) where the learned Judge held that where the Municipality is superseded and an Administrator is appointed, the Municipal body being a body corporate and hiving a perpetual succession, it continues to be in existence even on its supersession and all the powers and duties of the superseded Municipal council are exercised by the Administrator appointed. The learned Judge further held that even assuming that the Administrator succeeded the Municipal Council on its supersession, Section 18 of the General Clauses Act will be applicable and the Administrator must be held to be the Local Authority of the Municipality within the meaning of Section 2(viii) of the Prevention of Food Adulteration Act. Section 15 of the Bengal Municipal Act says that 'such commission era shall be a body corporate by the name of the municipal councils of the place.having perpetual succession and a common seal.' The municipality therefore continues to be in existence even on supersession of the commissioners under Section 558 of the Act. Under Section 554, all the powers and duties of the Chairman and the commissioners shall be exercised by the Administrator and sanction for prosecution by the Administrator therefore is valid. Even if it is assumed that the Municipality is superseded by an order under Section 553, the Administrator succeeds, and under Section 19 of the Bengal General Clauses Act 1899, the Administrator is the Local Authority within the meaning of Section 2(viii) of the Prevention of Food Adulteration Act. The decision reported in 1958 Cri LJ 169 (Cal) was considered in the Rajasthan decision and the learned Judge could not appreciate its reasoning. He however pointed out that unlike the Bengal Act the Rajasthan Municipal Act received the assent of the President. We do not know in what circumstances assent of the President was found necessary for the Rajasthan Act presumably it included items from the Concurrent List and sanction was found necessary under Article 254 of the Constitution. We have seen that the Bengal amendment of 1954 did not require the President's assent and it did not purport to amend or extend the definition of Local Authority as contained in the Food Adulteration Act. The written consent of the Administrator therefore conferred jurisdiction on the magistrate to take cognizance of the complaint by the Sanitary Inspector and this objection must be overruled.

10. Mr. Banerjee has also submitted that the prosecution failed to prove that the oil was stored for sale as food. The courts below found on the evidence that a considerable section of the public used cocoanut oil for preparation of food. coconut oil is undoubtedly also edible oil and this plea must therefore fail.

11. It was also submitted that the report of the public analyst did not relate to the sample and that Rules 18 and 22 framed under the Act have not been complied with. These points were not taken in the courts below; Sanitary Inspector's evidence shows that the samples were taken after observing all formalities under the law and the report related to the sample sent to Public Analyst. These objections are also therefore over, ruled.

12. In the result, the Rule is discharged.

R.N. Dutt, J.

13. I agree with My Lord that an 'administrator' appointed under Section 554 of the Bengal Municipal Act is competent to give 'consent in writing' under Section 20(1) of the Prevention of Food Adulteration Act. But I should like to record my own reasons for this conclusion.

14. Under Section 20(1) of the Prevention of Food Adulteration Act, no prosecution for an offence under the Act can be instituted except by or with the written consent of.or a local authority' and 'local authority' has been defined in Section 2(viii) of the Act as follows:

Local authority mean in the ease of a local area which is a Municipality, the Municipal Board of Municipal Corporation.

15. The Chairman and the Commissioners of Bally Municipality constituted the 'local authority' in this case at the time when the offence is said to have been committed. Subsequently the Chairman and the Commissioners were superseded under Section 558 of the Bengal Municipal Act and an Administrator was appointed under Section 554 of the Act. The Administrator gave the written consent for the prosecution in this case. Mr. Banerjee has contended that the Administrator is not the 'local authority' as defined in Section 2(viii) of the Prevention of Food Adulteration Act and hence the prosecution of the petitioner is bad in law. He has relied on the decision of Sen J. in Administrator, Howrah Municipality v. Byron and Co. reported in 1958 Cri LJ 169 (Cal.) Sen J. has in similar circumstances held that an Administrator appointed under Section 554 of the Bengal Municipal Act cannot be paid to be a 'local authority' within the meaning of Section 2(viii) of the Prevention of Food Adulteration Act. The propriety of this decision has been challenged before us. Under Section 554 as it stood before the Bengal Municipal (second Amendment) Act. 1954, the Administrator was empowered to exercise all the powers and duties which could be exercised and performed by the Chairman and by the Commissioners under the provisions of the Bengal Municipal Act or any Rule or by-law made thereunder. The Bengal Municipal (Second Amendment) Act, 1954 amended Section 551 and under the amended section the Administrator was empowered to exercise all the powers and duties which could be exercised and performed by the Chairman and by the Commissioners under the provisions of the Bengal Municipal Act or any other Act or any Ordinance or any Regulation, or any rule, by-law, order, notification or subsidiary legislation made under the provisions of the Bengal Municipal Act or such other Act or such Ordinance or such Regulation. Sen J. held that since this amendment Act had not the assent of the President, the amendment made in Section 554 could not amend or extend the definition of 'local authority' as contained in Section 2(viii) of the Prevention of Food Adulteration Act. But there is in fact no question of amending or extending the definition of 'local authority'. Under Section 15(2) of the Bengal Municipal Act the Chairman and the Commissioners shall be a body corporate having perpetual succession. Even though the Chairman and the Commissioners were superseded, the Municipal Board being a body corporate and having perpetual succession continued its legal existence. Had the Chairman and the Commissioners not been superseded, the consent in writing given by the Chairman would be the consent in writing of the 'local authority'. When the Chairman and the Commissioners were superseded and the Administrator gave the consent in writing that was also consent in writing of the 'local authority' as defined in Section 2(viii) of the Prevention of Food Adulteration Act. The Bengal Municipal (Second Amendment) Act does not enact any provision which is contrary to or repugnant to the provisions of Prevention of Food Adulteration Act. The Bengal Municipal (Second Amendment) Act amends the provisions of the Bengal Municipal Act about the powers of the Administrator on the supersession of the Chairman and the Commissioners, which is a matter relating to Item No. 5 of List II of the Seventh Schedule of the Constitution, viz, Local Government, that is to say, the Constitution and powers of the Municipal Corporation etc. The Bengal Municipal (Second Amendment) Act 1954 does not make any provision contrary to or repugnant to Section 20(1) read with Section 2(viii) of the Prevention of Food Adulteration Act and hence the question of President assent provided for in Article 254(2) of the Constitution does not arise.

16. Moreover this matter may be looked at from a different angle. We have said that the Municipal Board does not cease to exist even with the supersession of the Chairman and the Commissioners and as it is a body corporate having a perpetual succession, the Administrator appointed under Section 554 of the Bengal Municipal Act gets all the powers and duties of the Municipal Board under Section 18 of the General Clauses Act, 1897 and as such whatever the Administrator dues, he does as the Municipal Board and the written consent given in this case is the written consent of the Municipal Board and as such complies with the provisions of Section 20(1) and with Section 2(viii) of the Prevention of Food Adulteration Act.

17. We may also look at it in this way. Under Section 51 of the Bengal Municipal Act the 'Chairman' was empowered to exercise all the powers vested in the Commissioners not only under the Bengal Municipal Act but also under any other law. The power to give written consent under Section 20(1) of the Prevention of Food Adulteration Act vested in the Municipal Board i.e., the Commissioners. The Chairman was empowered to exercise this power of the Commissioners under Section 51 of the Bengal Municipal Act. Under the provisions of Section 554 before its amendment by the Bengal Municipal (Second Amendment) Act, 1954 the Administrator was empowered to exercise all the powers of the 'Chairman' vested in him under the provisions of the Bengal Municipal Act. The power to give consent in writing under the Prevention of food Adulteration Act vested in the Chairman as distinct from the Commissioners not under the Prevention of Food Adulteration Act but under Section 51 of the Bengal Municipal Act and so even without the Bengal Municipal (Second Amendment) Act, 1954 the Administrator has the power to give this consent in writing.

18. Thus, in any view of the matter, it mast be said that the consent in writing given in this case is not bad in law and hence the conviction cannot be set aside on that ground.


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