DELHI ADMINISTRATION Vs. STANDARD RESTAURANT

JUDGEMENT

(1.) A sample of ice-cream softy was lifted from the Standard Restaurant situated in Connaught Place, New Delhi on August 26, 1976 by the Food Inspector of the New Delhi Municipal Committee. This sample was got analysed from Shri Jagdish Parshad Sharma, a public analyst of the Union Territory of Delhi. According to his report the sample was adulterated. This ice-cream was manufactured by Caryhom Ice-cream (Regd.) Five persons namely, the Standard Restaurant. Shri Bhagat Ram, the Manager of the Standard Restaurant, Caryhom Ice-cream (Regd.), the manufacturers of the said ice-cream, and Sudhir Chona and Raman Chona, the two partners of Caryhom Ice-cream (Regd.) were prosecuted. A complaint was filed by the Delhi Administration against all these five persons under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). Regarding the question as to whether any charge should be framed against the accused persons it was contended on behalf of the accused persons before Shri B.N. Chaturvedi. learned Metropolitan Magistrate, Delhi, that Shri Jagdisli Parshad Sharma who analysed the sample of the ice-cream was not legally appointed as a public analyst and as such he was not empowered to analyse the sample and to give a report regarding the same and no prosecution could be based on the report as submitted by him.

(2.) 'Local Area' is defined under Section 2(vii) of the Act as meaning an area, whether urban or rural, declared by the Central Government or the State Government by notification in the Official Gazette, to be a local area for the purpose of this Act. As per the notification published on June 13, 1958 three areas of the Union Territory of Delhi, namely, the areas comprising Delhi Municipal Corporation, the New Delhi Municipal Committee and the Delhi Cantonment were declared as local areas under the Act. Thereafter by the notification dated May 17, 1976 Shri Jagdish Parshad Sharma was. appointed a public analyst for the Union Territory of Delhi with regard to the articles namely milk and milk products. Another gentleman Shri P.P. Bhatnagar was appointed a public analyst for the Union Territory of Delhi with regard to the articles other than milk and milk products. In that notification it was not stated that the Union Territory of Delhi was constituted as a local area as envisaged by the Act. Thereafter by a notification published on December 29, 1976 the Administrator, Delhi declared the whole of the Union Territory of Delhi as the local area for the purposes of the Act. It was contended on behalf of the accused persons before the learned trial Magistrate that Shri Jagdish Parshad Sharma was not appointed a public analyst for the area comprising New Delhi Municipal Committee and the notification published on May 17, 1976 appointing him a public analyst for the Union Territory of Delhi as a local area did not constitute him a public analyst for the area comprising New Delhi Municipal Committee. It was submitted that in the notification appointing him as public analyst it should have been specifically provided that he was appointed a public analyst for particular areas and unless those particular areas were specified the general notification in the terms in which it was issued and published on May 17, 1976 did not comply with the requirements of law and was of no avail. Another argument that has been raised in support of this contention js that there was a lacuna in the notification published on May 17, 1976 inasmuch as the Union Territory of Delhi was not stated to have been constituted as a local area. To do away with this lacuna or to remove any doubt in that regard another notification was subsequently published on December 29, 1976 in which the whole of the Union Territory of Delhi was declared to be a local area for the purposes of the Act. The contention has been that this notification of December 29, 1976 could not operate retrospectively and the appointment of Shri Jagdish Parshad Sharma,as a public analyst by earlier notification published on May 17, 1976 was not a valid appointment. This contention prevailed with the learned trial Magistrate and all the five accused were consequently discharged by him vide his order dated October 16, 1978.

(3.) A revision was taken by the Delhi Administration against this order of the learned Magistrate to the court of Shri R.K. Sain, learned Additional Sessions Judge. Delhi under the provisions of Section 397/399 Cr. P.C. The learned Additional Sessions Judge held that it could not be said that the view taken by the Magistrate was cither illegal or improper or incorrect and holding that there was no merit in the revision, the same was dismissed by him by his order dated October 13, 1979. It is against this order dated October 12, 1979 of Shri R.K. Sain that the present petition was filed by the Delhi Administration under Section 482 Cr. P.C. read with Article 227 of the Constitution. It is alleged that the impugned order of the learned Additional Sessions Judge is illegal and the same be set aside. The petition has been opposed by the respondents.