# BABU LAL HARGOVINDAS v. STATE OF GUJARAT March 18, 1971

- **Citation:** [1971] Supp. 1 S.C.R. 53
- **Court:** Supreme Court of India
- **Decided:** 1971-03-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babu-lal-hargovindas-v-state-of-gujarat-march-18-1971-5275
- **Pages:** 10

## Headnote

BABU LAL HARGOVINDAS
v.
STATE OF GUJARAT
March 18, 1971.
1G. K. MITTER, K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]
Food Adulteration A.ct, 1954-Panch wit1u•ss adr11itting signatur<s b111
denying pre.rence at tinJe of recovery ()/ st111iple-Evidence of Food /uspeftor carr be relied upofJ and s. 10(7) of A.ct niust be taken as compJ!ed wUh
-Resolution of Mu.nicipal Corporation under s. 20(1) of Act authorising
Medical Officer of Health to give written consent for p>'osecution under
A.ct-1\'ot necessary that authorisation should be by Co1n111issioner-J::.'fject
of ss. 67(3) and 68(l}-Coniplai11t need not be in the 11a1ne of Corporatio11-R11/c 7(2) does not contravene ss. 13(1) and 23(1) (e) of Act anti is
not ultra vires.
1'he appellant was a dealer in milk. The Food Inspector purchased
milk fron1 him for analysis and sealed it in three bottles one of whi~h was
lclt with the dealer and one sent for analysis, the third being kept by the
Inspector for production in court. The Public Analyst's report sho,ved that
he had caused the sample to be analysed and that there was a deficiency
of non-fatty solids in the san1ple. With the written consent of the I\.·1edical
Officer of Health the Inspector filed a complaint under s. 16 of the Food
Adulteration Act, 1954. Before the Magistrate the witness of the recovery
of the sample admitted his signatures on the receipt fu. 5 and on the
wrappers and labels of the bottles in \vhich the sample was "lealed but
denied that he was present when the sample was obtained. He claimed
that be had signed Ex 5 without reading it. The Magistrate relying oa
the testimony of the Food Inspector convicted the appellant. The High
-Court confirmed the conviction. Witb certificate under Art. 134(1) (c) of
the Constitution appeal was filed in this Court.
HELD: (I) Tho fact that tho panch witness refused lo support tho
prosecution in regard to the recovery of milk from the appellant could
not mean that s. 10(7) of the FoO<I Adulteration Act had not 1,een com·
plied with.
The evidence of tho Food Inspector alone if believed can
be relied on for proving that the samples were taken as required liy law.
At the most courts of fact may find it difficult in any particular case to
rely on the testimony of the Food Inspector alone though this result does
.not necessarily follow. The circumstances of each case will determine the
.,xtent of the weight to be given to tho evidence of tho Food Inspector and
what in tho opinion of !ho Court is tho value of his testimony.
In the
present case the courts were justified in concluding on the evidence of the
Food Inspector that he had complied with the requirements and that the
samples were seized in the presence. of the Pan ch witnes~ whose 11ignaturcs
were taken in the presence of the accused. [57E-58C)
Mank~ Hari v. State of Gujarat, 8 G.L.R. 588, referred to.
(ii) The appellant bad made no application to the Court for sending
the sample in his custody to tho Director, Central Food Laboratory under
'S. 13(2). It did not therefore avail him to say that over four montho
'had elapsed from tho time tho samples were taken to the time when the
.:omplaint was filed and consequently tho sample had deteriorated and
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could not be analysed. The food Inspector h~d added a preservative to
the appellant's sample and therefore the decision of this Court in G l1isa
Ram's case was distinguishable. [580, G]
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Municipal Corporation of Delhi v. Ghisa Ram, [1967] 2 S.C.R. 1\6,
distinguished.
(iii) The contention that the Medical Officer of Health was n.1t duly
authorised under s. 20(1) of the Act to give hi• consent for the appellant's
prosecution could not be accepted. The authority had been conferred by
a resolution of the Municipal Corporation in this regard. The Corporation did not for this purpose have to act through the Commissioner. A
combined reading of ss. 67(3) and 68(1) of the Act clearly indicatea that
the Commissioner ca

## Text

BABU LAL HARGOVINDAS
v.
STATE OF GUJARAT
March 18, 1971.
1G. K. MITTER, K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]
Food Adulteration A.ct, 1954-Panch wit1u•ss adr11itting signatur<s b111
denying pre.rence at tinJe of recovery ()/ st111iple-Evidence of Food /uspeftor carr be relied upofJ and s. 10(7) of A.ct niust be taken as compJ!ed wUh
-Resolution of Mu.nicipal Corporation under s. 20(1) of Act authorising
Medical Officer of Health to give written consent for p>'osecution under
A.ct-1\'ot necessary that authorisation should be by Co1n111issioner-J::.'fject
of ss. 67(3) and 68(l}-Coniplai11t need not be in the 11a1ne of Corporatio11-R11/c 7(2) does not contravene ss. 13(1) and 23(1) (e) of Act anti is
not ultra vires.
1'he appellant was a dealer in milk. The Food Inspector purchased
milk fron1 him for analysis and sealed it in three bottles one of whi~h was
lclt with the dealer and one sent for analysis, the third being kept by the
Inspector for production in court. The Public Analyst's report sho,ved that
he had caused the sample to be analysed and that there was a deficiency
of non-fatty solids in the san1ple. With the written consent of the I\.·1edical
Officer of Health the Inspector filed a complaint under s. 16 of the Food
Adulteration Act, 1954. Before the Magistrate the witness of the recovery
of the sample admitted his signatures on the receipt fu. 5 and on the
wrappers and labels of the bottles in \vhich the sample was "lealed but
denied that he was present when the sample was obtained. He claimed
that be had signed Ex 5 without reading it. The Magistrate relying oa
the testimony of the Food Inspector convicted the appellant. The High
-Court confirmed the conviction. Witb certificate under Art. 134(1) (c) of
the Constitution appeal was filed in this Court.
HELD: (I) Tho fact that tho panch witness refused lo support tho
prosecution in regard to the recovery of milk from the appellant could
not mean that s. 10(7) of the FoO<I Adulteration Act had not 1,een com·
plied with.
The evidence of tho Food Inspector alone if believed can
be relied on for proving that the samples were taken as required liy law.
At the most courts of fact may find it difficult in any particular case to
rely on the testimony of the Food Inspector alone though this result does
.not necessarily follow. The circumstances of each case will determine the
.,xtent of the weight to be given to tho evidence of tho Food Inspector and
what in tho opinion of !ho Court is tho value of his testimony.
In the
present case the courts were justified in concluding on the evidence of the
Food Inspector that he had complied with the requirements and that the
samples were seized in the presence. of the Pan ch witnes~ whose 11ignaturcs
were taken in the presence of the accused. [57E-58C)
Mank~ Hari v. State of Gujarat, 8 G.L.R. 588, referred to.
(ii) The appellant bad made no application to the Court for sending
the sample in his custody to tho Director, Central Food Laboratory under
'S. 13(2). It did not therefore avail him to say that over four montho
'had elapsed from tho time tho samples were taken to the time when the
.:omplaint was filed and consequently tho sample had deteriorated and
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could not be analysed. The food Inspector h~d added a preservative to
the appellant's sample and therefore the decision of this Court in G l1isa
Ram's case was distinguishable. [580, G]
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Municipal Corporation of Delhi v. Ghisa Ram, [1967] 2 S.C.R. 1\6,
distinguished.
(iii) The contention that the Medical Officer of Health was n.1t duly
authorised under s. 20(1) of the Act to give hi• consent for the appellant's
prosecution could not be accepted. The authority had been conferred by
a resolution of the Municipal Corporation in this regard. The Corporation did not for this purpose have to act through the Commissioner. A
combined reading of ss. 67(3) and 68(1) of the Act clearly indicatea that
the Commissioner cannot exercise his functions without any fetters as if.
he is the Coporation. The Corporation is the controlling authority and
can restrict; limit or impose conditions on the Commissioner in the exer ..
cise of any of the powers under s. 67(3) or under s. 68(1). The Corpora·
tion has the final voice in determining whether the Coinmig.,ioner or any
other person will discharge the function envisaged therein. That apart
s. 20{1) of the Act places no restriction on the Corporation to circums ...
cribe the powers of ths Commissioner.
The Corporation was therefore
free to authorise the Medical Officer of Health to give his written consent
in appropriate cases to institute prosecution.
[61H-62C]
(iv) All that the Medical Officer of Health is required to do is to·
give his written consent to
institute the
prosecution. There is no.
validity in the contention that the complaint should be in the name of
the Corporation. (610]
State of Bombay v. Parshottam Kanai)•ala/, [1961] S.C.R. 458, relied'
on.
(v) Rule 7(2) of the Act which permits the Public Analyst to cause·
the samples to be analysed by persons under him is not ultra vire.f. Tbel'O'
is no inconsistency between the provisions of r. 7 and those of s. 13(1) ii
to hold that the rule is in excess of what is prescribed by the section nor is.
there any justification for holding that the rule is beyond the rule matins"
powers under s. 23(1) (e) which empowers the Central Government after
consultation with the committee to define the qualifications power and duties.
of the Food Inspectors and Public Analysts. [61G·62D]
CRIMINAi. Al'ELLATE JURISDICTION : Criminal Appeal No. 133'
of 1969.
Appeal from the judgment and order dated April 15, 16, 17
and 18, 1969 of the Gujarat High Court in Criminal Appeal Ne.
850 of 1966.
Ravinder Narain, P. C. Bhartari for the appellant.
P. K. Chatterjee, B. D. Sharma and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
P. Jagamohan Reddy, J.-The Appellant Babu Lal Hargovindas carries on business of selling mili: in the City of Ahmedabad.
On 2-12-1965 at about 8 a.m. the Food Inspector Mangulal C.
BABU LAL HARGOVINDASY. GUJARAT (Reddy. J.)
Mehta visited the Appellant's shop, ilisclosed his identity and intimated to him that he was purchasing the milk for analysis. Thereafter 700 ML. milk which was being sold as cow's milk was purchased from him.
It was divided into 3 parts and poured into
three bottles in each of which he added sixteen drops of fonnalin
as preservative.
The bottles were then corked, sealed and Y.Tapped and signatures of the Panch one Adambhai Rasulbhai were
taken on the seals and wrappers.
Of the threP. bottles that were
then sealed one was given to the Appellant, one was kept by the
Food Inspector to be produced in the Court as required by the
provision of Food Adulteration Act, 1954 (hereinafter referred to
as it contained total non-fat solids of 7 '. 4 % instead of 8 : S %
l l · 30 a~m. to the Chemist Laxmansingh Vaghela who being authorised by the Public Analyst Dr. Vyas analysed it.
The analysis
of the sample by Vaghela revealed that the milk was adulterated
as it contained total non-fat solids of 7:4% instead of 8:5%
which was the minimum prescribed.
After the receipt of the report of the Public Analyst the Food Inspector filed a complaint
on 6-4-1966 with the written consent of the Medical Officer of
· Health of the Ahmedabad Municipal Corporation.
After examining the F:ood Inspector Mehta, the Chemist Vaghela and the Panch
Adambhai Rasulbhai, the City Magistrate, 6th Court, Ahmedabad
convicted the Appellant under Section 16(l)(a)(i) read with Sectiorr 7 of the Act for selling adulterated milk and sentenced him
to undergo Rigorous imprisonment for one month an( a fine of
Rs. 1,000 in default to undergo a further period of 3 months
rigorous imprisonment.
Against this conviction and sentence
the Appellant appealed to the. High Court of Gujarat which confirmed the conviction.
This Appeal against that Judgment is .by
Certificate under Article 134(l)(c) of the Constiution of India.
It is contended before us :-Firstly tha.t the requirements of
Section 10(7) of the Act have not been complied with under this
provision when the Food Inspector takes any action as specified
in sub-sections !(a), 2, 4 or 6 he shall call one or more persons
to be present at the time such action is taken and take his or their
signatures. The Panch witness however· did not support the case
of the complainant that he was either· present at the time when
the sample was obtained from the Appellant or that his signatures
were taken when the bottles were said to have been sealed.
In
these circumstances, it is submitted, the conviction cannot be SU&-
tained.
Secondly the Appellant was not afforded an opportunity
to send the sample of the milk left with him to the Director of
Central Food Laboratory for a certificate inasmuch as the complaint itself was lodged after a lapse of over 4 months from the
dates ·of taking the samples.
In these circumstances the milk
e<>uld not have been preserved for the Appellant to have taken the
opportunity ·afforded to him by sub-section: (2) of Section 13 by
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sending it to the Director, Central Food Laboratory for a certificate.
Thirdly the Food Inspector who filed this complaint was
not competent to file it because the M~ical Officer of Health who
gave written consent to file it was not validly authorised 3S required under Section 20(1) of the Act inasmuch as under the relevant
provisions of the Bombay Provincial Municipal Corporation Act
LIX of 1949 (hereinafter referred to as the 'Corporation Act') as
applied to the State of Gujarat it was the Municipal Commissioner
and not the Municipal Corporation that should have authorised
the giving of written consent to prosecute.
Fourthly even if the
Medical Officer of Health can be said to be validly authorised by
resolution of the Municipal Corporation dated 17-10-55 the complaint is not in accordance with that resolution since the resolution authorised the filing of the complaint in the name of the
Municipal Corporation but the complaint filed does not disclose
that it is filed on behalf of the Corporation.
Lastly rule 7('}) of
the Prevention of Food Adulteration Rules (hereinafter called the
'Rules') which permits the Public Analyst to cause the sample to
be analysed is ultra-vires because it is beyond the scope of s.xxion
..!3(e) of the Adulteration Act
Most of these contentions were
urged before the learned Single Judge of the Gujarat High Court
who in a lengthy Judgment held them to be untenable.
In our
view also the submission of the learned Advocate for the Appel
!ant are without force and must be rejected.
It may be observed that Section 10(7) of the Act originally
required that the Food Inspector, when he takes action either
under the provisions of sub-sections (!), (2), (4) or (6), to call as
far as possible not less than two persons to be present at the time
when' such action is taken and take their signatures but that provision was amended by Act 49 of 1964 and instead it was provided that the Food Inspector shall call one or more persons at the
time when such action is taken and take his or their signatures.
It appears that the person who witnessed the taking and sealing
of the sample did not support the Food Inspector's version that the
signatures of this Panch witness were taken on the receipt Ex. 5
and on the label and wrappers of the bottles at the time when
the samples were obtained.
The witness Rasulbhai who was serving in a Mill and also
sits in the cycle shop of his brother which is adjoining to the milk
shop of the Appellant, after he returns from his duty .stated that
on the date in question at about 8 a.m. he was called by the Food
Inspector as a Panch witness and that he signed on the two bottles
of milk and wrappers also.
When he was confronted with the
signature on Ex. 5 he said that he had signed it without reading
it The Food Inspector on the other hand asserted that he had
in the presence of Panch witness corked, sealed, labelled and wrapped the bottles which were signed by the Panch twice on each
BABU LAL HARGOVINDAS r. GUJARAT (Reddy J.)
of the bottles one on the label and the other on the wrapper and
thereafter the accused had passed a receipt to that effect which was
attested by the Panch witness in the presence of the accused. The
Trying Magistrate was not prepared to take the word of the Panch
witne.ss that he had signed Ex. 5 without reading it or without
•eeing the accused signlt\.g the same and preferred the evidence of
the Food Inspector,
Before the High Court, none of the contentions raised before the Trial Magistrate namely that inasmuch as
the Panch witness did not support .the prosecution that all the re-
<1uirements of Section 10(7) of the Act were not complied with
or that the paper sljps bearing signature of the Panch ought to
.have been affixed on the bottles and in the absence of such· paper
seals there could have been tampering of the seals before they were
.analysed. though raised were not pressed having regard w u decision of that Court in Man/ca Hari v. State of G11jarar,(').
The learned Advocate for the Appellant contends that though
these point' were not pressed before the Gujarat High Court he
is free to urge it before us. In the first place we do not think that
having regard to the findings based on an appreciation of cviJence
·Of the Panch witness and the Food Inspector that the milk was
bottled and sealed, signed and attested by the Panch witness in
the presence of the accused as spoken to by the Food lnspecror
can be challenged before us as those are findings of facts.
ln the
second place there is nothing to indicate that the provisions of
sub-section (7) of Section 10 have not been complied with. Even
·otherwise in our view no question of the trial being vitiated for
non-compliance of these provisions can arise.
It is I•Ot a rule
of law that the evidence of the Food Inspector cannot he accept-
.ed without corroboration.
He is not an accomplice nor is it similar to the one as in the case of Wills where the Jaw makes it imperative to examine an attesting witness under Section 68 of the
Evidence Act to prove the execution of the Will.
The evidence
·of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law.
At the most
Courts of fact may find it difficult in any particular case to rely
on the testilpony of ,the Food Inspector alone though we do not
say that this result generally follows.
The circumstances of each
·case will determine the extent of the weight to be given to the
~vidence of the Food Inspector and what in the opinion of the
Court is the value of his testimony.
The provisions of Section
l0(7)- are akin to those under Section I 03 of the Criminal Procedure Code when the premises of a citizen are searched by the
Police. These provisions are enacted to safeguard against any
possible allegations of excesses or resort to unfair n\eans either by
the Police Officers or by the Food Inspectors under the Act. This
(I) 8 G. L. R. 588.
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being the object it is in the interests of the prosecuting authorities concerned to comply with the .provisions of the Act, the Ii.on·
compliance of which may in some cases result in their testimony
being rejected. While this is so we are not to be understood as
in any way minimising the need to comply with the aforesaid
salutary provisions.
In this case however there is no jusuncation in the allegation· that the provisions have not been complied
with because the Panch witne8s had been called and his signatures
taken which he admits.
In these circumstances the Courts werojustified in holding on the evidence of the Food Inspector that he
had complied with the requirements and that the samples were
seized in the presence of the Panch witness whose signatures Were
taken in the presence of the accused.
There is also in our view no justification for holding that theaccused had no opportunity for sending the sample in his custody
to the Director, Central Food Laboratory under Section 13(2)
because be made no application to the Court for sending it. It
does not avail him at this stage to say that over four months had
elapsed from the time the samples were taken to the time when
the complaint was filed and consequently the. sample had det~
riorated and could not be analysed.
The decision of this Court
in Municipal Corporatio!I of Delhi v. Ghisa Ram(') has no appli·
cation to the facts of this case.
In that case the sample of the
vendor had in fact been sent to the Director of the Central Food
Laboratory on his.application but the Director had reported that
the sample had become highly decomposed and could not ~
analysed.
It is also evident from that case that the Food Inspector had not taken the precaution of adding the preservative. 1t
appears from page 120 of the report that the elementary precau·
tion of adding preservative to the sample which was given to the.
Respondent should necessarily have been taken by the Food
Inspector, that if such precaution had been taken, the sample
with the Respondent would have bee11 available for anlaysis bY
the Director of the Central Food Laboratory and. since the valuable right given to the vendor by Section 13(2) could not~ availed of, the conviction was bad.
No such defence is available to
the Appellant in· this case beca~ not only is there evidence
that the preservative formalin was added but the Appellant had
not even made an application to send the sample to the Director
of Central Food Laboratory.
.
·
The competence of the Food Inspector to file the complaint
has been challenged oil the ground that the Medical Officer of
Health who gave his written consent for filing it was not validlyauthorised by the Municipal Commissioner and that ·in any case.
the complaint is not in accordance with the resolution of the Munit [1967] 2 S. C. R. 1(6.
BABU LAL HAllOOVINDAS v. OUJAllAT (Reddy J.)
cipal Corporation (hereinafter referred to as
the 'Corporation')
which authorised the filing of it in its name and not in the name
of the Food Inspector. It appears the ~olution of the Corporatien of 17th October 1955 is in Gujarati but before the High Court
the Advocates of the parties seem to have broadly agreed on the
following translation : -
"Municipal Corporation Resolution No. 639 1955-S6
A. D., Shri Ramniklal Inamdac proposed seconded by Shri
Shantilal Manila! that, in pursuance of the recommendation of the Standing Committee Resolution No. 1124,
dated 13-10-1955 the Medical Officer of Health is authorised to accord written consent for filing complaints for
the Municipal Corporation in accordance with Section 20
of the Prevention of Food Adulteration Act, 1954 (Central Act). On votes being taken the proposal was
carried".
It was however pointed out by the lawyer of the Corporation
that the translation should read slightly differently to replace that
part, after the words "the Standing O:immittee resolution No. 1124
dated i3-10-1955" by the words "the authority of the Municipal
Corporation to give written consent to file complaints under Section 20 of the Prevention of Food Adulteration Act is given to
the Medical Officer".
In whatever manner the resolution may
be read it is clear that what it purports to do is to authorise the
Medical Officer of Health persuant to the powers vested in the
Corporation as a local authority under Section 20(1) of the Act
to have his written consent.
The provisions of Section 201 II are
as follows : -
"20(1)-No prosecution for an offence under this Act
shall be instituted except by, or with the written consent of
the Central Government or the State Government :>r a local
authority or a person authorised in this behalf, by general
or special order, by the Central Government or the State
Government or a local authority".
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On a reading of the above provision it is manifest that a prosecution can be instituted either by the local authority or by a
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person authorised by it in that behalf by general or special order.
The resolution therefore was in accord with the power vested by
Section 20(1) of the Act by which the Corporation authorised
the Medical Officer of Health to institute a prosecution. It is
however stated that under the Corporation Act it is the Municipal
Commissioner who is.the authority empowered to Act for the Cor-
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poration and authorise any person to institute proseclltion under
the Act, and since the Medical Officer of Health was not so authorised by the Commi8Sioner, the prosecution against the Appellant
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is invalid.
This contention is based on the provisions of Sections 67 & 68 of the Corporation Act under which it is claimed
that it is the Commissioner who is
empowered to exercise the
functions of the Corporation, as such it is his authorisation that
is required to satisfy the conditions prescribed in Section 20(1)
of the Act for the institution of a prosecution under that Act.
We do not however read the provisions· of the Corporation Act
referred to as pressed upon us.
It is undisputed that under subsection (2) of Section 67 the Municipal Government rests in the
Corporation unless of course lliere is any express provision which
provides otherwise.
There is no doubt that the Corporation Act
specifically prescribes the respective functions of the several Munidpal authorities as constituted under Section 4 but it no-where
relegates the Corporation to a subordinate position or makes it
subservient to the Commissioner.
In Section 67(3) upon which
reliance is placed, the duties and powers of the Commissioner are
made expressly subject to the approval and sanction of the Cocporation as also subject to all other restrictions limitations and
conditions imposed by the Corporation Act or any other Act for
the time being in force.
The duties and powers of the Commissioner. be it noted, are in respect of the carrying out of the
provisions of the Corporation Act and of any other Act for the
time being in force which imposes any duty or confers any power
on the Corporation.
This sub-section is dealing with the exercise
of the executive power by the Commissioner which is subject tQ
limitations.
On no interpretation is it possible to hold that the
Municipal administration vests solely in the Commissioner or that
any function to be discharged by the Corporation can only be
discjmrged by the Commissioner and no one else.
The scheme
of the Corporation Act leaves no doubt that there 1re many
instances where Corporation alone has to discharge the functions
such as the appointment of certain officers under Sections 45. 53
and 58 or the discharging by it of the obligatory and discretionary
duties under Sections 63 to 66.
Section 68(1) empowers the
Commissioner to perform or
exercise any powers', duties and functions conferred or imposed
upon or vested in the Corporation by any other law for the time
being in force subject to the provisions of such law and to such
restrictions limitations and conditions as the Corporation may
impose.
A combined reading of these two provisions clearly indicates
that the Commissioner cannot exercise
these functions withoot
any fetters as if he is the Corporation.
The Corporation is the
controlling authority and can restrict limit or impose conditio1111
on the Commissioner in the exercise of any of the powers envisaged in either under Section 67(3) or under Section 68(1).
Thero
1
BABU LAL HARGOVINDAS v. GUJARAT (Reddy J.)
is no gainsaying that the Commissioner can. function under ~ec
tion 68(1) subject to the control of the Corporation as also sub1ect
to the provisions of the law under which the powers are conferred.
The power to restrict limit or impose conditions being
vested in the Corporation, it has the final voice in determining
whether the Commissioner' or any other person· will discharge
those functions envisaged therein.
That apart Section 20(11 of
the Act itself places no restrictions on the Corporation to circumscribe the powers of the Commissioner. It therefore follows that
if a discretion is vested in the Corporation either to give its written
consent in which case the Commissioner could subject to such
limitation as may be imposed by the Corporation under s~ction
68(1) exercise the function or to authorise any other person by
general or special order to give his written consent to institute
prosecution under the Act.
The Corporation in either view is
not fettered to em power the Medical Officer of Health to give
his written consent in appropriate cases to institute prosecutions
under the Act, which in fact is what he did.
All that the Medical Officer of Health is required to do is to
give his written consent to institute the prosecution. There is no
validity in the contention that the complaint should be in the
name of the Corporation. · As pointed out by this Court in the
State of Bombay v. Parshottam Kanaiyalal,(') Section 20(1) does
not in terms prescribe that the complainant shall he named in the
written consent.
It merely provides that the complaint should
be filed either, by a named or specified authority, or with the
wiitten consent of such authority.
While the implication that
before. granting a written consent the autho.rity competent to
initiate a prosecution should apply its mind to the facts of the
case and satisfy itself that prima fade case exists for the alleged
offender being put up before a Court, is reasonable, the further
implication that the complainant must be named in the written
consent or that the name of the Municipal Corporation should
appear in the complaint, has no basis.
In our view, therefore,
there is no defect in the procedure followed while lodging the
complaint against the appellant.
Lastly, it was faintly urged that Rule 7(2) of the Rules is
ultra vires the Act.
It is contended that this Rule gives scope
for the Public Analyst to cause the samples to be analysed by
persons under him, viz., the Chemical Examiner, instead of himself analysing them, which is contrary to the express mandate of
sub-section (!) of Section 13 and is beyond the scope of Section
23(l)(e) of the Act.
This provision, according to the learned
Advocate, requires the Public Analyst to analyse the sample of
any article of food submitted to him for analysis, while :he rule
(l) [1961! I S. C.R. 45R.
61
A
B
c
D
E
F
G
H
A
B
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'E
F
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H
SUPRl!ME COUil T llEPOll TS
[1971] SUPP. s.c.ll.
gives scope to him to cause it to be analysed by others which is
beyond the scope of Section 23(1)(e). It is apparent from ·1 reading of Section 13(1) that what is requires is that the repon. by
the Public Analyst shall be in the prescribed form and that the
same should be delivered to the Food Inspector. There is nothing
to warrant the submission that the Public Analyst should himself
ana.tyse the samples. Sub-rule (3) of Rule 7 is in conformity with
lhis provision when it requires the Public Analyst. after the analysis has been completed, to send to the person concerned two copies
of the report of such analysis in Form Ill within a period of sixty
days of the receipt of the sample.
All that the Public Analyst
is reqnired under sub-rule 1 of Rule 7 on receipt of a package
containing a sample for analysis from a Food Inspector or any
other pesron is to compare the seals on the container and the
outer cover with specimen impression received separately and
shall note the condition of the seals thereon, or authorise someone
else to do it.
We can find no inconsistency between !he provisions of Rule 7, and those of Section 13(1) as to hold that the Rule
is in excess of what is prescribed by the Section, nor is there any
justification for holding that the rule is beyond the scope of the
rule-making power under Section 23(1) (e), which .empowers the
Central Government, after consultation with the Committee to define the qualifications, powers and duties· of the Food Inspectors
and Public Analysts. Rule 7 does no more than prescribe the
duties of the Public Analyst, in which will fall the duty to have
the sampels analysed. The qualifications of the Public Analyst
are, however, prescribed jn Rule 6, which shows that he is a person duly qualified, so that he is competent to have the samples
analysed in his laboratory by qualified subordinates and under
his supervision, which is what is implied in the requirement that
he should give a report in the form prescribed.
Rule 7 (2) does
not preclude the Public Analyst from himself analysing the samples, as indeed a perusal of Form III would show that he certifies
as follows : "I further certify that I
have/have caused to be
analysed the aforementioned sample, and declare the result of the
analysis to be as follows" :
Whether the Public Analyst analyses the sample himself or
causes it to be analysed, there is no doubt that he had to >'Ub&."Tibe
to a declaration in respect of the result of the analysis and has
further to give his opinion thereon which can only be done, if at
some stage or other he takes part in the analysis either by himself
analysing or checking the results of the analysis with the assistance
of his subordinates.
In the light of the views expressed by us on the several contention raised before us, the appeal fails and is accordingly dismissed.
G. C.
Appeal dimilsMd.