Municipal Corporation Of Delhi ... vs Chaman Dass
1969 Latest Caselaw 157 Del

JUDGMENT

Jagjit Singh and Hardayal Hardy, JJ.

(1) This appeal is against an order of acquittal pa.ssed by Shri C.R. Negi, Magistrate First Class Delhi, on March 31. 1967, in a case under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954.

(2) Shri Chaman Das of Shop No. 21 Main Market, Moti Nagar, New Delhi, was tried on the allegations that on March 24, 1964 Shri Jamna Pershad Food Inspector, purchased from him Boondi sweets, which were adulterated due to the presence of unpermitted coloring matter.

(3) It may be stated that complaint in the case was made by the Municipal Corporation of Delhi, through the Assistant Municipal Prosecutor. Report of the Public Analyst, showing adulteration due to presence of unpermitted colour, was attached to the complaint. Daring the trial the sample which was retained by the Food Inspector was sent on title application of the seller to the Director of Central Food Laboratory. The certificate issued by the Director of the Central Food Laboratory was to the effect that the sample of Boondi sweets was adulterated due to presence of non-permissible yellow coal tar dye. The learned Magistrate, however, acquitted the accused on the ground that the appointment of Shri Jamna Pershad, Food Inspector, was "illegal abinitio" as he had financial interest in the manufacture and sale of sweets.

(4) On July 10, 1967 the Municipal Corporation and the Assistant Municipal Prosecutor filed a petition for grant of special leave to appeal, under section 417(3) of the Code of Criminal Procedure (hereinafter referred to as "the code"), accompanied by ground"- of appeal and a certified copy of the judgment of the learned trial Magistrate. Special leave to file appeal was granted on Jane 25, 1967, and on the same date notice of the appeal was as well directed to be issued.

(5) Mr. Kapur, counsel for Chaman Das respondent, raised certain preliminary objections. It was contended by the learned counsel that application for special leave to appeal had been presented after the expiry of sixty days from the date of the order of acquittal and the appeal was, therefore nto within time and that in any case the appeal cannto be considered to have been filed by a competent person.

(6) Under subsection (3) of section 4i7 of the Code where an order of acquittal is passed in any case instituted upon complaint and the High Couit, on an application made to it by the complainant, grants special leave to appeal from the order of acquittal, the complainant may present an appeal to the High Court Sub-section (4) provides that no application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal Further under article 114 of the Limitation Act, 1963, the period of limitation prescribed for an appeal from an order of acquittal under sub-section (3) of section 417 of the Code is thirty days from the date of the grant of special leave.

(7) The submission made by Mr. Kapur was that the application under sub-section (3) of section 417 of the Code for grant of special leave to appeal from the order of acquittal should have been filed in the High Court nto later then the expiry of sixty days from the date of the order and in computing the said period of sixty days it was nto permissible to exclude the twenty five days period taken in obtaining a copy of the order of the Magistrate. On this basis it was urged that the sixty days period having expired on May 30, 1967 the application presented on July 10, 1937 for grant of special leave to appeal could nto be entertained.

(8) It is true that sub-section (4) of section 417 of the Code does provide that no application for the grant of special leave to appeal from. an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. The High Court had, however, remained, closed on account of the long vacation from May 29, 1967 and resumed its sittings after the vacation on July 10, 1, 67. This would be evident from the calender issued for the year 1967 which contained the following note :- "THElong Vacation of the Court will commence on Monday the 29th May, 1967; and the Court will resume its sittings after the Vacation on Monday, the 10th July, 1967. The period of long Vacation has been enclosed by red lines. By Order Of The Court Guru Datta Registrar."

 An office order was also issued on June 1, 1967, which was in the following terms :-    "IT is hereby notified for the information of all concerned that during the period of vacation i.e., from 29th May 1967 to 7th July, 1967, the registry of High Court of Delhi will be closed on all Saturdays, urgent matters will however be received. By Order Of The Hon Ble The Vacation JUDGE."  

 (9) It will be noticed that according to the calender issued for the year 1967 under of the court the long vacation was from May 29,1967 to July 9 1967 and the office order only made provision for receiving of "urgent matters" by the Registry during the vacation.   

(10) If the High Court could be considered to have been. closed from .May 29,1967 to July 9, 1967 obviously the application under section 417 (3) of the Code could be filed on the day of the court resumed its sittings after the vocation, i.e., on July 10, 1967. Section 4 of the Indian Limitation Act, 1963 specifically provides that were the prescribed period for any suit,, appeal or application expires on a day when the court is closed the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens. There is an explanation to the section which is to the effect that a court shall be deemed to be closed on any day if daring any part of its normal working hours it remains closed on that day.

(11) It was urged by Mr. Kapur that when a notification issued by a court specifically . directs that its office shall be kept open for purposes of filing applications and appeals etc. the court notwithstanding the summer vacation or recess cannto by deemed to be closed for that purpose within the meaning of section 4 of the Limitation Act. He cited Fat/eh Muhammad -v.Chothu Ram The British India Steam Navigation Co. v H.M. Sharajctlly Tata Industrial Bank Ltd. v. Abdul Husein Hakimji Kisanlal Hanumananbux Firm v. Tansukhrai Binjraj and Ramani Raji Moholi v. Todanpuri Manjah

(12) In the case of Tata Industrial Bank it was held that it is a question of fact in each case whether the court is closed for any particular description of work. In the case of Kisanlal Hanumanbzax Firm as well it was observed that whether the Court is open or closed depends upon whether the business in question can be done. Where the court was in vacation but was open cv(n for presentation of ordinary appeals the Lahore High Court, in the case of Fatteh Muhmmad, considered that the vacation vas no excuse for the Letters Potent Appeal out of time. For the same reason a Division Bench of the Andhra Pradesh High Court, in the case of Ramani Raji Moholi, took the view that where the language of a circular issued in connection with summer vacation showed that only urgent important civil work was permitted to be transacted, plaints in matters where urgent orders were nto required to be obtained were nto permitted to be entertained during the vacation and the Court was, therefore, nto open for the purpose of filing plaints in ordinary suits during the summer vacation.

(13) None of the above mentioned authorities can be of any help to Mr. Kapur so far as the present case is concerned The note given on the calendar of the High Court of Delhi for the year 1907 did nto provide that during the vacation applications or appeals could be filed in the Registry. The office order issued on the commencement of the vacation made it clear that the Registry will remain open, except on Saturdays, only for receiving "argent matters". As an application under section 417(3) of the Code cannto be considered to be an urgent matter such an application could nto be filed during the vacation and for purposes of such an application the Court had to be regarded to have remained closed from May 29, 1967 to July 9, 1967. In Anand Ram Pramhans and others v. Rangulam Sahu Jwala Prasad T, even went to the extend of remarking that there was ample authority to show that a memorandum of appeal presented during the vacation to the proper officer appointed in that behalf would he valid presentation althogh it would be open to an appellant to present a memorandum of appeal on the first day of opening of the Court under the law of limitation if the time for the filing of the same expires during the vacation as this is for the benefit of the litigants.

(14) As the office order issued in connection with the vacation prohibited receiving of any application etc. except relating to urgent matters the Court will have to be regarded as closed from May 29 to July 9. 1967 for purposes of filing applications other than urgent application. The period of sixty days for the application under section 417(3 of the Code expired during the vacation period and as it was nto an urgent application it could certainly be presented on the opening day after the vacation by taxing advantage of appeal. the of presentation in defect material any was there that respondent for counsel learned with agree to unable are We leave. special grant after appeal represent formally necessary nto It granted. leave as soon admitted been have considered be thus can he I notice issue directed also 25,1967, July on granting while Court The acquittal. order copy a and grounds by accompanied Prosecutor Municipal Assistant Delhi Corporation application days. sixty period computing excluded could acquittal obtaining requisite whether consider is it matter view this In time. within being entertained rightly therefore, was, vacation sittings its resumed court day presented Act. Limitation

(15) Another contention of Mr. Kapur was that Shri Jamna Pershad had nto been appointed by the Central Government or the State Government as a Food Inspector, as required by section 9 of the Prevention of Food Adulteration Act and further that he was disqualified to be a Food Inspector due to his having financial interest in manufacture and sale of articles of food. Our attention was invited to a portion of the statement of Shri Jamna Pershad in which he had stated that he was appointed as a Sanitary Inspector in the Municipal Co-poration of Delhi in 1962 and has started working as a Food Inspector in March, 1966. It was also admitted by him that he was a share-holder of the Delhi Municipal Corporation Employees' Co-operative Store. Which has been running a restaurant and a dairy, and that his share money was refunded to him in the month of May, 1966.

(16) It was nto disputed before us that Shri Jamna Pershad had the technical prescribed qualifications to be a Food Inspector. The Delhi Admistration, by .Notification No. F.32 361-M&PH, dated 21st March, 1931, issued in exercise of powers conferred by section 9 of Act 37 of 1954 appointed all sanitary inspectors of Municipal Corporation of Delhi to be Food Inspectors for purposes of the said Act. In Public prosecutor v. Narkidimtlli Srirambhadrayya,Jagan Mohan Reddy, J. (as his Lordship then was) held that Sanitary Inspectors can be appointed by virtue of their office under section 9 as Food Inspectors. It follows that upon being appointed as Sanitary Inspector by the Municipal Corporation of Delhi Shri Jamma Pershad became a Food Inspector for purposes of the Prevention of Food Adulteration Act.

(17) The Food Inspector, as admilted by him, was a shareholder of the Delhi Municipal Corporation Employees' Co-operative Score which was dealing in manafactare and sale of articles of food. His acting as a Food Inspector, it was submitted by Mr. Kapur, did contravene the provisions of the proviso to section 9 of the Prevention of Food Adulteration Act. That proviso is to the effect that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a Food Inspector.

(18) Recently a Division Bench of this Court, comprising of Kangarajan and Parkash Narain JJ., in the case of Municipal Corporation of Delhi v. Takhat Ram (Crl. Appeal No. 97 of 1967, Decided on 6th August, 1969), dealt with the question whether a person who was a shareholder of a cooperative Society which was unning a store in which articles of food were prepared and sold could be appainted a Food Inspector. The learned Judges observed that the bar as contemplated by the proviso to section 9 of the Prevention of Food Adulteration Act to appointment of a person having any financial interest in the manufacture, import or sale of any article of food must be a direct interest and the indirect interest that a shareholder may have cannto be regarded as a bar to his appointment as a Food Insdector. The matter was, however, nto finally decided and was left open as on the facts of the case it was considered that the incompetency of the Food Inspector to act as such was nto material and the purchase made by him could be considered as by a private individual. The case of Municipal Corporation of Delhi v. Raje and another" (Crl. Appeal No. 169-D of 1962, decided by the Punjab High Court on 11th June 19^5) was distinguished. In the latter case it was held that the Public Anlyst who had examined the sample of food had financial interest in manufacture and sale of article of food and was nto qualified to be appointed a Public Analyst. The Bench of this Court took the view that the case of a Public Analyst was different as his report is itself the basis of the prosecution unless overridden by a report of the Director Central Food Laboratory, but if a person was nto validly appointed as a Food Inspector the action taken by him may be regarded as that of a private individual.

(19) A purchaser of any article of food, other than a Food Inspector, can also, as provided by section 12 of the Prevention of Food Adulteration Act, have the article analysed by the Public Analyst. He is, of course, to inform the vendor at the time of purchase of his intention to have such article so analysed. So even if the was any defect in the appointment of Shri Jmna Pershad as a Food Inspector, due to his having financial .interest in manufacture and sale of articles of food, still there was nothing to prevent him from puchasing the Boondi sweets from the respondent. Shri Jamna Pershed had duly informed the vendor that the article purchased by him would be gto analysed. A thumb inpression of the vendor obtained on Form No. Vi in which it was specifically stated that the samples of food had been taken to get the same analysed from the Public Analyst.

(20) According to Mr. Kapur if Shri Jamna Pershad had acted as a private individual and nto as a Food Inspector then under proviso to sub-section (1) of section 20 of the Prevention of Food Adulteration Act the proceedings could only be instituted by him and nott by the municipal Corporation of Delhi or the Assistant Municipal Prosecutor. This contention, however, seems to be untenable. The proviso to section 20 , merely enables a purchaser referred to in section 12 to institute prosecution but it does nto take away the power of a local authority or a person authorised in this behall' by a general or special order of the local authority from insituting the prosectuion. The object of the proviso is to give additional power to a purchaser to institute proceedings so that. such a purchaser may n it be without a remedy were the authorities mentioned in sub-section (1) of section 20 do nto take action.

(21) It may be mentioned that the lernal trial Magitrate did nto at all consider the merits of the case and acquitted the responden. merely because the Food Inspector was considered nto to have been properly appointed due to his having financial interest in manufacture and sale of articles of food.In our opinion even if the appointment of the Food Inspector was any way defective the case should have been Imposed of on the basis that the article of food was purchased by a persron other than a Food Inspector as contemplated by section 12 of the Prevention of Food Adulteration Act. The order of acquittal cannot, therefore be justified.

(22) The appeal is accordingly accepted and the order of Shri Negi, dated March 31, 1967, acquitting the respondent of the offence under section 7 read with section 16 of the Prevention of Adulteration Act, 1954, is set aside. The case shall be sent to the District Magistrate Delhi for being passed on to a Migistate of competent jurisdiction for being decided afresh on merits. The parties, through their counsel, have been directed or appeal before the District Magistrate on September 25, 1960.