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PETITIONER: THE CHAIRMAN OF THE BANKURA MUNICIPALITY

       Vs.

RESPONDENT: LALJI RAJA AND SONS.

DATE OF JUDGMENT: 23/03/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GUPTA, K.C. DAS

CITATION:  1960 AIR  871            1960 SCR  (3) 358

ACT: Municipality-Unwholesome food--Seized under warrant--If  can be  directed  to be destroyed--Bengal  Municipal  Act,  1932 (Ben.  Act.  XV of 1932), ss. 430, 431(2).

HEADNOTE: The  respondents  were the owners of an  oil  seed  pressing factory  situated within the limit of a municipality.   They used  to import mustard seeds from different areas and  they also held a (1)  (1952) L.A.C.103. (2)(1958)1 L.L.J. 63. (3) A.I.R. 1959 Bom. 248. 359 licence  for  selling  Mustard seed.  On  a  report  of  the Sanitary  Inspector of the Municipality, the  Sub-Divisional Officer issued a search warrant directing seizure of a large quantity of " rotten and decomposed mustard seed " from  the possession   of  the  respondents.   The  Chairman  of   the Municipality  applied to the District Magistrate for  action under  s. 431 and s. 432 of the Bengal Municipal  Act.   The proceedings  started on the petition of the Chairman of  the Municipality   had  a  chequered  career.   Ultimately   the District   Magistrate  found  that  the  mustard  seed   was unwholesome  and unfit for human consumption on the date  of seizure  and  directed, in exercise of the powers  under  S. 431(2)  of  the  Act,  that the same be  made  over  to  the Commissioners  of  the Municipality for disposal  either  as manure  or as cattle feed.  The High Court in  revision  set aside  the order of the District Magistrate holding that  s. 431 of the Act under which the order was made did not  apply to  a  case of seizure of unwholesome food under  a  warrant issued  under  s.  430.  On appeal by  the  Municipality  by special leave: Held, that the powers under s. 431(2) of the Bengal  Munici- pal  Act  (XV  of  1932),  were  expressly  directed  to  be exercised  by the Magistrate in respect of  articles  seized under s. 428, and there was nothing in s. 431(2) which might justify tile view that those powers could also be  exercised in  respect of articles seized under a warrant issued  under s. 430.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 119  of 57. Appeal  by special leave from the judgment and  order  dated the  24th  August,  1955,  of the  Calcutta  High  Court  in Criminal Revision No. 596 of 1955. C.   B. Agarwala and Sukumar Ghose, for the appellant. B.   Sen  and  S.N. Mukherjee, for  the  respondents.  1960. March 23.  The Judgment of the Court WAS delivered by SHAH,  J.--M/s.  Lalji Raja & Sons-who will  hereinafter  be referred to as the respondents-are the owners of an oil seed pressing  factory  known as the Gouranga Oil  Mill  situated within  the limits of the Bankura Municipality in the  State of West Bengal.  For extracting oil, the respondents  import mustard  seed  from different areas.  The  respondents  also hold a license for the @ale of mustard Seed. On the application of the Sanitary Inspector of the  Bankura Municipality, the Sub-Divisional Officer, Bankura, issued  a search warrant directing seizure of 900 bags of "rotten  and decomposed mustard seed", 600 bags stored in the mill godown and 300 bags stored 360 in  the  court-yard  of the rice  mill  at  Hanseswar  Maji. Pursuant  to  the search, a large quantity of  mustard  seed spread  out for drying in the Gouranga Oil Mill was  seized, and  certain bags lying in  the rice mill were also  seized. On  the  report    made   by  the  Sanitary  Inspector,  the Chairman  of  the  Municipality  applied  to  the   District Magistrate  of Bankura on March 10, 1950, for  action  under ss. 431 and 432 of the Bengal Municipal Act, No. XV of 1932, alleging  that  the mustard seed seized was "  in  a  highly decomposed state and gave out an offensive stench" and  that the same was unwholesome and unfit for human consumption. The  proceedings started on the petition of the Chairman  of the  Municipality had a chequered career. it is  unnecessary to  sit  out  for the purposes of this  appeal  the  diverse orders  which  were made from time to time by  the  District Magistrate  and  which were set aside by the High  Court  of Judicature at Calcutta.  It may be sufficient to state  that on May 26, 1950, the District Magistrate ordered restoration of  the mustard seed bags to the respondents and that  order was set aside bags Division Bench of the Calcutta High Court in  revision.   Another order passed by the  District  Magi- strate in April 1951 directing that the contents of the bags be disposed of as " manure or fodder " was set aside by  the Calcutta High Court and the proceedings were directed to  be retried.  The District Magistrate again held an enquiry  and by his order dated November 10, 1954, held that the  mustard seed  was lawfully seized in accordance with the  provisions of  the Bengal Municipal Act, 1932, that it was  unwholesome and  unfit for human consumption on the date of seizure  and directed  in exercise of the powers under s. 431(2)  of  the Act  that the same be made over to the Commissioners of  the Bankura  Municipality for disposal either as manure.  or  as cattle  feed.   The High Court at Calcutta  by  order  dated August 24, 1955, in exercise of its revisional jurisdiction, set aside the order of the District Magistrate holding  that s. 431 of the Bengal Municipal Act under which the order was made, had no application to a case of seizure of unwholesome food seized under a warrant issued under s. 430. 361 Against  the order of the High Court, this appeal  is  filed with special leave. The  only  question  which falls to be  determined  in  this

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appeal  is whether articles of food seized under  a  warrant issued  by a Magistrate in exercise of the powers  under  s. 430  of  the  Bengal  Municipal Act may  be  ordered  to  be destroyed under s. 431(2) of the Act.  In order to determine this   question,  it  is  necessary  to  refer  to   certain provisions of the Bengal Municipal Act, 1932. Section  421  prohibits,  amongst  other  acts,  selling  or storing  for  sale of unwholesome articles to  be  used  for human  consumption.   Section  427  (in  so  far  as  it  is material)  authorizes  the Commissioners and  certain  other officers  of  a Municipality to enter upon and  inspect  any place  in  which any article of food is  deposited  for  the purpose  of  sale or preparation for sale or  to  which  any article  of food intended for human consumption  is  brought for  such purpose, and also to inspect the articles of  food which may be found in the place inspected.  Clause (1) of s. 428   confers  upon  the  Commissioners  and  the   officers designated  in  s.  427  power to  seize  articles  of  food intended  for  human  consumption  if,  in  the  course   of inspection,  it  appears that the same  are  unwholesome  or unfit for human consumption.  Section 429 provides that  the articles  of  food  referred to in s. 428  which  have  been seized  under that section may, with the written consent  of the owner or the person in whose possession they are  found, be ordered to be destroyed.  If the consent of the owner  or the  person in possession is not obtained and  the  articles are of a perishable nature, the officer seizing the same may take them before a Magistrate who may, if it appears to  him that  the  articles are unsound or unwholesome or  unfit  as human food, condemn the same or order them to be  destroyed. Section  430 (in so far as it is material) provides that  if any  Magistrate  is  satisfied on  the  application  of  the Commissioners,  Health  Officer, Sanitary Inspector  or  any other officer authorized by the Commissioner in this  behalf that  there is just cause to believe that any food which  is unsound,  unwholesome  or  unfit for human food  is  in  the possession of any person for the 362 purpose of being sold or offered or exposed for sale  within the limits of the Municipality for such consumption, he  may grant a warrant authorizing entry upon the premises of  such person and search for and seizure of such articles of  food. Section  431  by  the 1st subsection (in so  far  as  it  is material)  provides that where any article of  food,  seized under  s. 428 is not destroyed by consent under sub-s. 1  of s.  429  or  when  an article of food  so  seized  which  is perishable is not dealt with under sub-s. 2 of that section, it  shall  be taken before a Magistrate as soon  as  may  be after such seizure.  Sub-s. 2 provides that if it appears to the Magistrate that any such food is unsound, unwholesome or unfit,  for  human  food,  he shall cause  the  same  to  be destroyed   or   to  be  otherwise  disposed   of   by   the Commissioners so as not to be capable of being used as human food. It  is evident from this resume of the relevant  legislative provisions  that the municipal authorities are  entitled  to enter  upon  and inspect places where articles of  food  are stored  or prepared for sale.  If the municipal  authorities find that any article of food stored or prepared for sale is unwholesome or unfit for human food, they may seize them and destroy  the same with the written consent of the  owner  or person in possession, and if such consent is not forthcoming and  the  articles are perishable, destroy  them  under  the orders  of  a  Magistrate.   But s.  428  is  not  the  only procedure under the Act authorizing seizure of articles.  of

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food  which  are unwholesome or unfit for human  food.   The municipal authorities may move a Magistrate for the issue of a warrant for seizure of articles of food which are unsound, unwholesome or unfit for human food, and under the authority of the warrant, such articles may be seized. Articles  of  food  seized under s.  428(1)  which  are  not disposed  of under s. 429 are required to be taken before  a Magistrate as soon as may be after seizure and under  sub-s. 2 of s. 431, the Magistrate is authorized, if it appears  to him that the articles of food are unsound or unwholesome  or unfit  for  human  food to  order  destruction  or  disposal thereof Evidently, the expression "such" used in sub-s.2  of s. 431 refers. to the articles of food described in sub.s. 1 of 363 that  section and s. 431(1) only deals with articles  seized under  s.  428.  There is no express provision made  by  the legislature  either  in  s.  431 or  elsewhere  in  the  Act authorizing  destruction’  or disposal of articles  of  food which are seized under a warrant issued under s. 430. Counsel  for the Municipality contends that the  legislature intended  that  all articles seized, whether  on  inspection under s. 428 or under a warrant issued under s. 430 must  be dealt  with under s. 431 and the High Court was in error  in holding  that  the  authority of  the  Magistrate  to  order destruction  or  disposal  of  articles  of  food  could  be exercised  only in respect of articles seized under s.  428. But  the  words  used in s.  431(2)  clearly  authorize  the Magistrate  to  order destruction or  disposal  of  articles seized under s. 428 and not dealt with under s. 429, and  it is  difficult  to  uphold  the  plea  that  the  legislature intended, even though it did not so expressly provide,  that the articles seized under a warrant issued under s. 430  may also  be dealt with under sub-s. 2 of s. 431.   Counsel  for the  Municipality submits that it could not even  have  been the  intention  of the legislature that the  Magistrate  can order  seizure  of  unwholesome food but  cannot  order  its destruction, though he may order destruction of  unwholesome articles of food seized by the officers of the Municipality. It  appears,  however,  that a  person  storing  unwholesome articles  of  food may be prosecuted for infraction  of  the provisions  of  s.  421  and in the  course  of  or  on  the conclusion of those proceedings, it would certainly be  open to  the Magistrate, having seizin of the complaint, to  pass an  appropriate order under the Code of  Criminal  Procedure for destruction of the articles seized.  In view of this, we are  not  prepared  to say that the absence  of  an  express provision relating to the disposal of articles seized  under s. 430 is not deliberate; but even if we are constrained  to hold that there is a lacuna in s. 431, we do not think  that we  would be justified contrary to the plain words  used  by the legislature, in attempting to remedy the same by holding that a Magistrate exercising power under sub-s. 2 of s.  431 has authority to 364 order  destruction  of  articles seized in  pursuance  of  a warrant issued under s. 430. The  argument advanced by counsel for the Municipality  that the  seizure was in exercise of the powers under s. 428  and not  under  s. 430 has, in our judgment,  no    force.   The report  of the Chairman of the Municipality dated March  10, 1950, makes it abundantly clear that the search warrant  was issued  by  the Sub-Divisional Officer in  exercise  of  his authority  under s. 430 of the Bengal Municipal  Act.   ’Any admission  by the respondents that the seizure was under  s.

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428 of the Act in proceedings for resisting the order  which the Municipality claimed to obtain against them can have no value. Section  428 does not contemplate a seizure of  articles  of food  which  are  unwholesome,  under  the  authority  of  a Magistrate,  and  s. 430 is expressly  the  provision  which authorises  a  Magistrate  to  issue  a  warrant,  for  such seizure.  The powers under s. 431(2) are expressly  directed to  be  exercised by the Magistrate in respect  of  articles seized  under  s. 428, and there is nothing  in  the  former provision  which may justify the view that those powers  can also  be  exercised in respect of articles  seized  under  a warrant issued under s. 430.  In our opinion, the High Court was right in its conclusion. The appeal therefore fails and is dismissed. Appeal dismissed.