S. S. BYAS, J. - (1.) BY the leave granted u/s 378 (4) Cr. P. C. , the Municipal Council, Jaipur his come up in appeal against the judgment of the Chief Judicial Magistrate, Jaipur City, Jaipur dated June 26,1980 acquitting the accused respondent Mahendra Kumar from the offence u/s 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act ).
(2.) AT about 7. 00 p. m. on 1. 11. 1976, P. W. 1 Babulal the then Food Ins-pector, Jaipur visited the shop of the accused respondent situate in Jhalaniyan-' ka-rasta Jaipur. The accused used to run a shop of general merchandise under the name Mahavir Vegetable Store. The accused was found present when the Food Inspector visited the shop selling food articles. The Food Inspector found nearly 10 Killograms of Chillies Powder in a tin-box for the purpose of sale. The Food Inspector suspected the chillies powder adulterated. He disclosed his identity to the accused and purchased 600 grams of chillies powder against cash payment of Rs. 4. 20 paisa. He divided the same into three equal parts and filled each of them in three dry and empty bottles The bottles were properly tightened and seeled. The relevant memos were prepared on the spot. One of the sample bottles was sent for chemical examination to the State Central Public Laboratory, Rajasthan Jaipur on 2. 11. 1976. On examination, the sample of the chillies powder was found adulterated as is does not conform to the prescribed standard of purity The report issued by the Public Analyst is Ex. P. 6. Thereafter the papers were submitted before the Collector-cum-District Magistrate, Jaipur for seeking his written consent who authorised the Food Inspector Babulal, P. W. 1 to file the complaint against the accused. Thereafter, the Food Inspector Babulal submitted a complaint in writing before the Chief Judicial Mag, Jaipur against accused Mahendra Kumar. Mahendra Kumar put appearance and denied the charge. In support of its case, the prosecution examined three witnesses, In defence, accused examined one witness. On the conclusion of trial, the learned Chief Judicial Magistrate found the charge not established. In arriving at this conclusion, he held that the provisions of S. 11 of the Act were not complied with and this non-compliance was sufficient to warrant the acquittal of the accused. He therefore, acquitted the accused of the offence u/s 7/16 of the Act. Aggrieved against the said judgment of acquittal, the Municipal Council, Jaipur has come up in appeal and challenges the judgment of acquittal. No body appeared on behalf of the appellant Municipal Council, Jaipur. I have heard Mr. Wali assisted by Mr. Garg for the accused respondent. At the fore front of his arguments, Mr. Wali contended that the appeal is not maintainable. He has raised two fold contentions against the maintainability of appeal. First is, that the complaint was filed by the Food Inspector Babulal. It was he who was authorised by the District Magistrate vide Ex. P. /8' to launch the prosecution and file the complaint against the accused. The complaint filed by the Food Inspector Babulal does not show that he had filed the complaint on behalf of the Municipal Council, Jaipur. As such the appeal filed by the Municipal Council, Jaipur is not maintainable. The appeal could be filed either by the State or by the Food Inspector Babulal. The either contention is, that even if it is held that the Food Inspector Babulal filed the complaint on behalf of the Municipal Council, Jaipur and therefore, the Municipal Council, Jaipur is entitled to file the appeal, the application for leave to appeal is time barred. It was argued that the impugned judgment was passed on June 26, 198 -. Copy of the judgment was delivered to the Municipal Council on 1. 8. 1980. An application for leave to appeal u/s 378 (3) Cr. P. C. was submitted on 15. 10. 1980 i. e. to say, after the expiry of 60 days from the date of the order of acquittal, even if the period in taking the copy is excluded. I have given my thoughtful consideration to the contention raised by Mr. Wali and find that there much force and substance in them. Sec. 378 Cr. P. C. lays down the conditions as to how an appeal in the case of acquittal is to be filed. Sub-sections (3) and (4) lay down that an appeal without leave in any case is not maintainable and permissible. As such leave to appeal is a condition precedent when it is filed against an order of acquittal. Sub-section (4) makes a provision for an appeal against acquittal in a case instituted upon a complaint. Sub-Section (5) speaks about the period of limitation for filing an application for leave to appeal. It would be useful to read sub-sections (4) and (5), which run as under : " (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six, months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. "
(3.) I shall first take the contention as to whether the Municipal Council, Jaipur is competent to file the appeal? Ex. P/8 is the written consent accorded by the District Magistrate authorising the Food Inspector Babulal to launch prosecution and file the complaint against the accused under the Act. No where in Ex. P/8 it has been mentioned that the complaint is to be filed by the Food Inspector Babulal for or on behalf of the Municipal Council, Jaipur. In the complaint filed by the Food Inspector Babulal in the court of Chief Judicial Magistrate, Jaipur, it has again not been mentioned that the Food Inspector Babulal was filing the appeal as a representative or an employee of the Municipal Council, Jaipur. I have therefore, no hesitation to say that the complaint was filed by Food Inspector Babulal in his capacity as the Food Inspector and not as a representative or employee or in any other capacity of the Municipal Council, Jaipur. There is no material to suggest that in filing the complaint, the Food Inspector, Babulal, P. W. 1 acted only in a representative capacity and the Municipal Corporation, Jaipur is the complainant within the meaning of Sec. 378 (4) Cr. P. C. The maxim "qui Per allum facit per seipsum facere videtur" (he who does an act through another is deemed in law to do it himself) is not applicable in the instant case because it does not appear that the Food Inspector filed the complaint on behalf of the Municipal Council, Jaipur. If the Food Inspector Babulal would have been authorised by the Municipal Council; Jaipur to file the complaint on its behalf there was material to show that the Food Inspector had filed the complaint on behalf of the Municipal Council then the aforesaid principal of "qui per allum facit per seipsum facere videtur" (he who does an act through another is deemed in law to do it himself) could have been attracted as held in Municipal Corporation of Delhi vs. Jagdishlal (1) and Municipal Corporation of Delhi vs. Amritlal (2 ). A very like situation arose in Municipal Council, Jaipur vs. Prabhu Narain (3 ). Learned Judges of the Division Bench declined a right to appeal to the Municipal Council when the complaint was filed by the Food Inspector. The following excerpt from the judgment may be usefully reproduced : "a local authority cannot be regarded as a 'complainant' entitled to prefer an appeal u/s 417 (3) of the Criminal P. C. against an order of acquittal in cases instituted on complaint filed by persons authorised by it in this behalf or with its written consent. Consequently, where a Food Inspector authorised by a Municipal Committee has filed a complaint u/s 20 of the Prevention of Food Adulteration Act and the accused has been acquitted, the Municipal Committee is not entitled in its own name to file an appeal against such acquittal u/s 417 (3) of Criminal PC. " ;