VERENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application, for quashing the criminal proceeding, against the petitioners in C. M. B. Case No. 68 of 1971/T. Rule 592 of 1971 pending in the Court of the Judicial Magistrate, 1st Class, Dhanbad. The only point which has been raised in this application is that no cognizance could be taken Under Section 20 of the Prevention of Food Adulteration Act, 1954 hereinafter to be referred to as the Act, as there was no valid sanction accorded for the prosecution of the petitioners. When the case was placed for hearing before a learned single Judge of this Court, by an order dated 3rd April 1975 it was referred to Division Bench for a decision on the point as to whether a 'local authority' could be prescribed by a notification issued in that behalf by the State Government or whether a notification prescribing a 'local authority' could be treated as having the force of a Rule. Hence this case before us.

(2.) Before coming to the legal aspect of the case, it is worthwhile mentioning a few facts which are not in controversy. On the 30th December 1969, the Patherdih. Washery Employees' Co-operative Society Ltd. of which petitioner No. 1, the Washery Manager, is the Chairman ; petitioner No. 2, the Assistant Mechanical Engineer is the Secretary : and petitioner No. 3, the Washery Engineer, is the Treasurer, was inspected by the Food Inspector of Jharia Mines Board of Health who collected Haldi (turmeric) weighing 450 grams. It was sent to the Public Analyst, who reported that the Haldi in question contained excess of lead and did not conform to the prescribed standard. On the 9th April 1971 sanction was accorded by the Medical Officer of the Jharia Mines Board of Health for prosecuting the petitioners. On the 4th August 1971 a complaint was filed by the Food Inspector of the Jharia Mines Board, a copy whereof has been marked Annex. '1' to the petition. On the 18th August 1971 cognizance was taken against the petitioners for an offence Under Section 16(1)(a) of the Act. The petitioners challenged the authority of Jharia Mines Board of Health to accord any valid sanction. In the counter affidavit filed on behalf of the Jharia Mines Board, it has been asserted that on the 12th October 1955, vide Annex. 'A', "Local area" was notified by a notification issued in this behalf by the State Government Under Section 2 (vii) of the Act including the area under the jurisdiction of the Board. On the 6th June 1956, vide Annexure A/1 another notification was issued being notification No. V/E-04/56-165-HR by which the Governor of Bihar was pleased to prescribe all District Boards in the State, the Jharia Mines Board of Health, Dhanbad and the Hazaribagh Mines Board Hazaribagh which had been declared to be local area under Clause (vii) of Section 2 of the Act as local authorities within their respective .jurisdiction for the purposes of the Act. This notification was issued in the purported exercise of the powers conferred by Sub-Clause (2.) of Clause (viii) of Section 2 of the Act. Initially the bone of contention between the parties was as to whether the notification dated 6th June 1956 Annex. A/1 was validly issued under the provisions of Section 2 (viii) of the Act and whether it had any binding effect. Subsequently however, on 24th November 1975, the State Government in exercise of their rule-making power Under Section 24 of the Act amended the Bihar Prevention of Food Adulteration Rules, 1958 which were framed on the 2nd July 1958. By this amendment the rule was framed prescribing the Jharia Mines Board of Health as a 'Local authority' and this amendment was also given a retrospective effect by a deeming clause and it said that all actions or proceedings taken at any time before the amended rule came into force would be deemed to have been taken by the Jharia Mines Board of Health inter alia, as a local authority. The question with regard to validity of the amendment of the rules on 24th November 1975 arose after a reference of this case to Division Bench. Therefore, initially the case had been referred by the learned single Judge merely for the purposes of a decision on the question as to whether Annex. A/1 the notification dated 6th June, 1956 could be validly held to have declared the Jharia Mines Board of Health as a local authority. I shall deal with this aspect of the matter first before directing my attention to the arguments raised by learned Counsel for the parties with regard to the amendment of the rules in November 1975.

(3.) Learned Counsel for the petitioners submitted that Annex. A/1 the notification dated 6th June 1956 should be held not to have been validly made as the 'local authority' could not be prescribed by a notification of the State Government without framing a rule Under Section 24 of the Act. For the purpose of prescribing a 'local authority' Under Section 2 (viii) (2) it was incumbent to frame a rule in that regard under the rule-making power of the State Government Under Section 24 of the Act and there having been no rule before the 24th November 1975, the Jharia Mines Board of Health could not be a local authority as envisaged by the Act. Learned Counsel for the Jharia Mines Board on the contrary contended that a 'local authority' could be prescribed by the State Government even by issuance of a notification in that regard. As a matter of fact this point has already been decided by a Bench of this Court in the case of Suleman Mian v. State 1975 BBCJ 352 : 1976 Cri LJ 430, wherein it has been held that this very notification of the 6th June 1956 could not be held to have validly prescribed a 'local authority' within the meaning of Section 2 (viii) (2). In Suleman Mian's case it was held by the Bench that in view of the different provisions of the Act it was difficult to hold that when 'prescribed' has been mentioned in Section 2 (viii) and the word 'prescribed' has been defined in Section 2 (xii) to mean 'prescribed by rules made under this Act, the 'Local authority' can be prescribed not by any notification but by relevant rules to be framed by the State Government. Mr. Tar a Kumar Das, learned Counsel for the Board argued that the aforesaid decision should not be held to be good law and he endeavoured to persuade us to refer this matter to a larger Bench for reconsideration of the point involved. I have given my anxious thought and full consideration to the matter and treating the case even as a matter of first impression as if the point were still res integra, I have not been able to satisfy myself with regard to the tenability of this contention. I am in full agreement with the ratio and the reasons given in the Bench decision in Suleman Mian's case. In that view of the matter, it is not necessary for me to refer to those provisions in the Act by which certain things have to be done by the appropriate Government by issuance of a notification while others have to be done by framing the rules Under Section 23 in the case of the Central Government and Section 24 in the case of the State Government. I must therefore, hold that the notification dated 6th June, 1956 Annex. 'A/1' could not be held to have validly prescribed the Jharia Mines Board of Health as the local authority within the meaning of Section 2 (viii) (2) of the Act, nor can it have the force of a Rule. As a matter of fact, in my view, the State Government themselves having felt the necessity for framing a rule in that behalf have subsequently done so by the amendment of the rules made on the 24th November 1975, a reference to which has been made by me earlier.