1. This Rule is unopposed. After hearing the learned Vakil for the petitioner we are of opinion that it most be made absolute on both the grounds on which it was granted.
2. The petitioner has been convicted of committing an offence tinder Section 6 of the Bengal Food Adulteration Act, VI of 1919. Section 15 of that Act provides that no prosecution for any offence under the Act shall be instituted without the order or consent in writing of the local authority within whose jurisdiction the offence is committed. The offence is alleged to have been committed within the Kurseong Municipality. Under Section 2 (4)(1) of the Act, local authority is defined as meaning in the case of any Municipality, the Municipal Commissioners. The Municipal Act in force in Kurseong is Act III of 1884. Section 44 of that Act enables the Chairman, for the transaction of the business connected with this Act or for the purpose of making any order authorised thereby, to exercise all the powers vested by this Act in the Commissioners. But the power which the Commissioners have to sanction prosecution under Act VI of 1919 is the power given them by that Act and not by the Municipal Act. Consequently, Section 44 would not empower the Chairman to sanction this prosecution.
3. The other ground on which this Rule was granted relates to the report of the Public Analyst which was admitted in evidence without that officer being examined. Section 14(2) renders this certificate of the Public Analyst admissible in evidence under certain conditions, but the most important condition has not been fulfilled in this case. That is, that the Public Analyst should submit bis certificate in the form prescribed in the Schedule to this Act. No such certificate was submitted, but the Public Analyst reported on the case by a letter in the ordinary official form. That being so, his letter was not admissible in evidence without proof of the truth of its contents and without that letter there would not. be sufficient evidence to support the conviction
4. On these two grounds we make the Rule absolute and set aside the order of the Sub-Deputy Magistrate of Kurseong, dated 13th September 1922, convicting the petitioner under Section 6 of Act VI of 1919 and sentencing him to pay a fine of Rs. 100 The fine, if paid, will be refunded.