P.N.BAKSHI, J. - (1.) THESE are two connected matters in which the same question of law is involved, "which has been referred for decision to this Bench. In Criminal Revision No. 90 of 1971 the applicant was selling milk without a licence on 12th March, 1968. The contention of the applicant's counsel in this case was that no rules have teen framed under Section 24 of the Prevention of Food Adulteration Act appointing an authority, who could issue a licence and, as such, it was not incumbent upon the applicant to obtain a licence for the sale before effecting sale of milk.
(2.) IN Criminal Reference No. 165 of 1972 the applicant was manufacturing edible oil without a requisite licence as required under Rule 50 (2) of the Prevention of Food Adulteration Rules. A similar point was raised in this case. A single Judge decision of this court was relied upon by the Sessions Judge Gonda, while making a reference to this Court. That decision is reported in 1972 Allahabad Criminal Cases, page 304 S.C. Tayal and another v. State and others. Brother K. B. Srivastava, J. while making this reference was of the opinion that the decision of brother C.D. Parekh, J. aforesaid docs not take into account the relevant provisions of the Prevention of Food Adulteration Act, under which it was not necessary for the State Government to appoint an authority for the issue of a licence and that the rules which were already in existence under the Pure Food Act and which were not inconsistent with the Prevention of Food Adulteration Act, make ample provision for such an autho­rity which could issue the licence. Counsel for the applicants has relied upon the decision of the learned Single Judge and he submits that since no rules have been framed under Section 24 of the Prevention of Food Adulteration Act his client cannot be convicted for the offence of selling the articles in question, without obtaining the licence. Section 24 of the Prevention of the Food Adulteratipn Act runs as follows: "24 (1) Power of the State Govern-ment to make Rules. The State Government may, after ccnsultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of Section 23.- There can be no doubt. from a perusal of the aforesaid Section, that the power to make rules for giving effect to the provisions of the Act have been given to the State Government. There can further be no doubt in the faet that the State Government, if it so desires, could frame such rules even now. A question, however, arises, whether in the absence of the framing of such Rules under Section 24 of the Act, would it still be necessary for the applicant to obtain a licence ? Section 25 of the Prevention of Food Adulteration Act, 1954, runs as follows : "25. Repeal and Saving. (1) It immediately before the commence-ment of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that corresponding law shall upon such commencement stand repealed. (2) Notwithstanding the repeal by this act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of food, made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act."
(3.) THIS saving clause is very explicit in its expression that the provisions of law with regard to the Food adulteration as they existed prior to the existence of Act, 1954, would remain unaffected, if they were not inconsistent or repugnant to the provisions of this Act. Brother Kunj Behari Srivastava, J. has referred to the various sections and rules under the Pure Food Act, which relate to the appointment of an authority for the purpose of issue of a licence. Rule 104 framed thereunder prescribes that for purposes of granting licences the Medical Officer of Health appointed for that area shall be the licensing officer. We are not satisfied that such a rule is incon­sistent with any provision of this Act. As such the Health Officer would be the appropriate authority empowered under the Act to issue licences for articles covered by the provisions of Prevention of Food Adulteration Act. In the Single Judge case relied upon by the applicants counsel the relevant provisions of the U.P. Pure Food Act, 1950 and Rules have not been taken into consideration. As such, we are of the view that the Single Judge decision does not lay down the correct law and it must, therefore, be overruled. There being no incon-sistency at all between Rule 50 (2) fram­ed under the Pure Food Act and the Prevention of Food Adulteration Act, 1954, the said rule still continues to be good law. We are, therefore, of the opinion that it was incumbent upon the applicants to have obtained a licence so that he could sell milk, or edible oil, as the case may be.;