MADAN LAL BRIJU LAL Vs. EMPEROR

JUDGEMENT

(1.) The facts out of which this application has arisen were as follows. The Chairman of the Buxar Municipality applied to the Sub-divisional Officer for the issue of a warrant of the seizure of fifty bags of flour alleged to be exposed for sale in the petitioners shop and to be in a state unfit for human consumption. The Sub-divisional Officer issued a warrant and the flour was seized. Later the Sub- divisional Magistrate ordered the flour to be destroyed and it was destroyed in his presence. Thereupon the petitioners instituted a suit for damages against the Sub- divisional Officer and other persons concerned in the seizura and destruction of the flour. The Chairman wrote a letter to the Sub-divisional Magistrate praying that the petitioners be prosecuted under Section 273, I.P.C., for exposing for sale food unfit for human consumption.

(2.) The letter was a complaint and on that letter the petitioners prosecution has been ordered. The petitioners applied to this Court in revision and asked that the proceedings be quashed or that they be stayed pending the disposal of the civil suit. The substantial point that has been urged on their behalf by their counsel is that the present prosecution is in contravention of Section 30, Bihar and Orissa General Clauses Act (1 of 1917). That section is as follows: Where an act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. The contention is that the act of exposing for sale food unfit for human consumption constitutes an offence both under the Indian Penal Code and under the Bihar and Orissa Municipal Act of 1922 and that the petitioners have in fact been punished under the latter act by the destruction of his fifty bags of flour. The first question is whether the exposure of food unfit for human consumption is an offence under the Municipal Act. Under Section 4, Sub-section (38), "offence" means "any act or omission made punishable by any law for the time being in force."

(3.) Under Section 288, Municipal Act, the penalty for being in possession of an article unfit for human consumption is that the article may be seized and destroyed and the person in possession of the article may be punished with a fine extending to Rs. 100. When food unfit for consumption is exposed for sale therefore the exposure constitutes an offence under Section 273, I.P.C., and the person in possession of such food is one who is punishable under the Municipal Act. This however does not dispose of the case.