IMBICH KOYA Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in C. C. 129 of 1960 on the file of the District Magistrate of Kozhikode has filed this revision petition. He was prosecuted under S.16 (1)(a)(ii) of the Prevention of Food Adulteration Act - Act XXXVII of 1954 for conducting a restaurant without a licence in contraven-of R.4 of the Kerala Prevention of Food Adulteration Rules, 1957 (hereinafter referred to as the Kerala Rules). The learned Magistrate found the accused guilty and convicted him.

(2.) On appeal to the Sessions Judge of Kozhikode the validity of R.4 was questioned and the learned Sessions Judge accepted the contention of the defence that R.4 was illegal and ultra vires as S.24 of the Act under which the rule ,was made does not confer on the State Government power to make rules regulating the issue of licence for manufacture and sale of articles of food and that the power to do so is exclusively vested in the Central Government under S.23 of the Act. The learned Sessions Judge, therefore, altered the conviction to one for contravention of R.50 of the Central Food Adulteration Rules (hereinafter referred to as the Central Rules).

(3.) The petitioner questions the validity and constitutionality of R.50 (1) of the Central Rules and R.4 of the Kerala Rules and it is prayed that the rules may be declared unconstitutional, ultra vires and void. The attack against R.4 of the Kerala Rules is that the subject matter of the said rule falls within clause (g) of S.23 (1) of the Prevention of Food Adulteration Act and that therefore it is beyond the competence of the State Government to frame any rules in regard to the same since S.24 which confers on the State Government the power to frame rules expressly confines the scope of such power to matters not falling within the purview of S.23.