A.K.DAS, J. - (1.) THIS application in revision is directed against an order by the learned Additional Sessions Judge, Howrah dismissing the petitioner's appeal against conviction and sentence passed under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The petitioner was sentenced to pay a fine of Rs. 800, in default to S.I. for one month.
(2.) THE prosecution case is that on December 9, 1961 the Food Inspector of the Bally Municipality came to the grocery of the petitioner at 210 Gossainpara Road, Bally and took samples of co3oanut oil, put them into three dry and clean phials and sealed and labelled them properly in the presence of witnesses. One sample was made over to the accused, another was Bent to the public analyst while the third was preserved in the municipal office. The public analyst reported the sample to be adulterated and then this prosecution was initiated after obtaining sanction from the Administrator of the Bally Municipality. Mr. Banerjee, learned Advocate for the petitioner submits that the Administrator of Bally Municipality not being a local authority within the meaning of Section 20 read with Section 2(viii) of Prevention of Food Adulteration -Act, the prosecution is void and without jurisdiction.
(3.) THE sample of coconut oil was taken by the Sanitary Inspector of the Bally Municipality, Nagendra Chakravorty on December 9, 1961. The Municipality was later superseded by an order of the State Government and Sri S.M. Guha was appointed Administrator. The Administrator accorded sanction to the prosecution on February 12, 1963. It is submitted that the Administrator S.M. Guha not the local authority within the meaning of Section 20 read with Section 2(viii) of the Prevention of Food Adulteration Act and the magistrate therefore had no jurisdiction to take cognizance. It is argued that in the case of Bally Municipality, the local authority within the meaning of Prevention of Food Adulteration Act was Chairman and commissioners of the Municipality and there is nothing in the said Act which showed that because of supersession of the Municipality the Administrator comes within the meaning of local authority. Section 554 of the Bengal Municipal Act 1932 did not authorise an Administrator to perform the powers and duties of the Chairman under 'other laws' but only permitted him to perform the duties and powers under the Bengal Municipal Act itself. There is an amendment of the Section 554 by the amending Act 21 of 1954, substituting the words 'or any other Act, or any ordinance or any rule, bye law or notification or subsidiary legislation made under the provisions of the Act or such other Act or such ordinance or such regulation' for the words 'or any rule or bye law made thereunder' but this amendment did not receive the assent of the President and therefore it cannot be held to amend or extend the definition of 'local authority' as contained in Prevention of Food Adulteration Act. In support Of this contention, the learned Advocate has referred to a single Bench decision of this Court reported in 1958 Cri L.J. 169 (2) (Cal), Administrator, Howrah Municipality v. Byron and Co. The learned Judge held as follows: Under Section 554 of the Bengal Municipal Act as it stood in the Act of 1982, when an order of supersession has been gassed, tie powers and duties which may under the provisions of this Act (Bengal Municipal Act) or an rule or bye -law made thereunder be exercised and performed by the Chairman and by the commissioners whether at a meeting or otherwise, shall during the period of supersession be exercised by such person as the State Government may direct, i.e shall be exercised and performed by the Administrator. In its original form this section did not authorise the administrator to exercise the powers which might be exercised by the Chairman and the municipal commissioners under any other Act than Bengal Municipal Act. . . . . .It does not appear to me that the definition of local authority as contained in Section 2(viii) can be deemed to have been extended by amendment of Section 554 by the W.B. Act 21 of 1954. It is to be pointed out that West Bengal Act 21 of 19S4 did not receive the assent of the President and therefore It cannot be held to amend or extend the definition of local authority as contained In the Prevention of food Adulteration Act. The reported decision rests on the view that the amending Act required the President's assent which it did not receive and therefore it could not amend or extend the definition of local Authority as contained in Prevention of Food Adulteration Act. The decision however gives no -reason why the President's assent is necessary for amending the Municipal Act, or how the question of amending or extending the meaning of Local Authority under the Prevention of Food Adulteration Act arose. Mr. Banerjee, learned Advocate for the petitioner submitted that the relevant provision in the Municipal Act came under the Concurrent List, List III of the Constitution being covered by items 18 and 33 and as such, President's assent was necessary to make it effective. The amendment relates to the power of the Administrator under Section 554 of the Bengal Municipal Act after the commissioners of a municipality are superseded under Section 553 of the Act. Under Section 15 of the Bengal Municipal Act, municipality is a body corporate. Under Section 554 of the Act, the municipality is not superseded; but only the Chairman and the commissioners The Act provides that municipality acts through its Chairman and the Commissioners; in case of supersession, however, the Administrator is empowered to exercise the powers of the Chairman and commissioners under Section 554 of the Act, As to how a municipality should function in either case is a subject covered by item 5 of List II of the Seventh Schedule of the Constitution under the head Local Government and has nothing to do with items in concurrent list referred to. ;