MUNICIPAL COUNCIL JAIPUR Vs. MAHENDRA KUMAR

JUDGEMENT

(1.) BY the leave granted u/s 378 (4) Cr. P. C. , the Municipal Council, Jaipur his come up in appeal against the judgment of the Chief Judicial Magistrate, Jaipur City, Jaipur dated June 26,1980 acquitting the accused respondent Mahendra Kumar from the offence u/s 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act ).

(2.) AT about 7. 00 p. m. on 1. 11. 1976, P. W. 1 Babulal the then Food Ins-pector, Jaipur visited the shop of the accused respondent situate in Jhalaniyan-' ka-rasta Jaipur. The accused used to run a shop of general merchandise under the name Mahavir Vegetable Store. The accused was found present when the Food Inspector visited the shop selling food articles. The Food Inspector found nearly 10 Killograms of Chillies Powder in a tin-box for the purpose of sale. The Food Inspector suspected the chillies powder adulterated. He disclosed his identity to the accused and purchased 600 grams of chillies powder against cash payment of Rs. 4. 20 paisa. He divided the same into three equal parts and filled each of them in three dry and empty bottles The bottles were properly tightened and seeled. The relevant memos were prepared on the spot. One of the sample bottles was sent for chemical examination to the State Central Public Laboratory, Rajasthan Jaipur on 2. 11. 1976. On examination, the sample of the chillies powder was found adulterated as is does not conform to the prescribed standard of purity The report issued by the Public Analyst is Ex. P. 6. Thereafter the papers were submitted before the Collector-cum-District Magistrate, Jaipur for seeking his written consent who authorised the Food Inspector Babulal, P. W. 1 to file the complaint against the accused. Thereafter, the Food Inspector Babulal submitted a complaint in writing before the Chief Judicial Mag, Jaipur against accused Mahendra Kumar. Mahendra Kumar put appearance and denied the charge. In support of its case, the prosecution examined three witnesses, In defence, accused examined one witness. On the conclusion of trial, the learned Chief Judicial Magistrate found the charge not established. In arriving at this conclusion, he held that the provisions of S. 11 of the Act were not complied with and this non-compliance was sufficient to warrant the acquittal of the accused. He therefore, acquitted the accused of the offence u/s 7/16 of the Act. Aggrieved against the said judgment of acquittal, the Municipal Council, Jaipur has come up in appeal and challenges the judgment of acquittal.

(3.) I shall first take the contention as to whether the Municipal Council, Jaipur is competent to file the appeal? Ex. P/8 is the written consent accorded by the District Magistrate authorising the Food Inspector Babulal to launch prosecution and file the complaint against the accused under the Act. No where in Ex. P/8 it has been mentioned that the complaint is to be filed by the Food Inspector Babulal for or on behalf of the Municipal Council, Jaipur. In the complaint filed by the Food Inspector Babulal in the court of Chief Judicial Magistrate, Jaipur, it has again not been mentioned that the Food Inspector Babulal was filing the appeal as a representative or an employee of the Municipal Council, Jaipur. I have therefore, no hesitation to say that the complaint was filed by Food Inspector Babulal in his capacity as the Food Inspector and not as a representative or employee or in any other capacity of the Municipal Council, Jaipur. There is no material to suggest that in filing the complaint, the Food Inspector, Babulal, P. W. 1 acted only in a representative capacity and the Municipal Corporation, Jaipur is the complainant within the meaning of Sec. 378 (4) Cr. P. C. The maxim "qui Per allum facit per seipsum facere videtur" (he who does an act through another is deemed in law to do it himself) is not applicable in the instant case because it does not appear that the Food Inspector filed the complaint on behalf of the Municipal Council, Jaipur.