SAILESH CHANDRA LAHIRI Vs. NEHAL CHAND MARWARI

JUDGEMENT

(1.) This reference which has been made to this Court under Section 438, Criminal P.C., by the learned Sessions Judge of Nadia, raises a point of some importance and interest. The accused Nehal Chand Marwari was convicted by the Deputy Magistrate of Krishnagar for offering resistance and obstruction to an authorized person inspecting or examining food believed to be adulterated and thereby committing an offence under Section 21 read with Section 12 (2), Bengal Food Adulteration Act (Act 6 of 1919). He was also convicted of an offence punishable under Section 186, I. P. C, namely, voluntarily obstructing a public servant in the discharge of his public functions.

(2.) The facts are that the accused person was in possession of certain tins of mustard oil. A Sanitary Inspector of the Municipality seized the tins on the ground that their contents were adulterated. It is alleged, and the trying Court has found, that the accused offered resistance to and obstructed the seizure.

(3.) The question in respect of which the reference is made, is whether the Sanitary Inspector was duly authorized to inspect and examine food alleged to be adulterated, and if that is answered in the negative there is a further question whether he is a public servant within the meaning of the Indian Penal Code. By rules made under the Act by the Local Government, the powers exercisable under Secs.10 and 12 can be exercised by the Health Officer or when specially authorized by the local authority, the Sanitary Inspector. On 11 July 1927 the Chairman of the Municipality which is in the circumstances of the case, the local authority for the purposes of the Act, purported to authorize the Sanitary Inspector to exercise the powers and to perform the duties mentioned in Secs.10 and 12. By another order of 20 July 1930, also signed by the Chairman, the Sanitary Inspector is directed to perform the duties of Health Officer, until further orders. Both these orders were in existence in the sense that they had not been revoked or otherwise modified at the date of the alleged offence. With regard to the first order, that is to say, the order authorizing the Sanitary Inspector to perform the duties and exercise the powers mentioned in Secs.10 and 12, it is pointed out that the order has to be made by the local authority. The local authority in a case of Municipality is defined by Section 2, Sub-section (4) as the Municipal Commissioners. There is no power under the Act, for the Chairman of the Municipality to act on behalf of the Municipal Commissioners and I am of opinion that the learned Sessions Judge is right in saying that in his opinion Section 44, Bengal Municipal Act 1884, is not applicable to the present case, because I do not think that the authorization of the Sanitary Inspector under the Food Adulteration Act can be described as the transaction of business connected with the Municipal Act, or that exercise of powers vested by the Municipal Act in the Commissioners. I think therefore as far as the Pood Adulteration Act is concerned, the Sanitary Inspector was not authorized in the manner provided by the Act.