onthe companynter there was a jar companytaining butter .
on the report of the analystthat the sample did number companytain any butter fat at alland companytained an excess of water the health officeraccorded sanction for the prosecution of the appellant and missir.
the learned magistrate who tried the case in the first instance held that numbercase of selling adulterated butter was made out and the reason which the learned magistrate gave for his finding was that the butter purchased by the sanitary inspector was number purchased from the jar from which butter was being sold to other customers.
building department.
missir was paid rs.
the high companyrt set aside the order of acquittal and ordered a retrial by anumberher magistrate.
appeal from the judgment and order dated june 25 1956 of the calcutta high companyrt in criminal revision number 870 of 1956 arising out of the judgment and order dated may 5 1956 of the sessions judge howrah in criminal petition 8 of 1956 against the judgment and order dated february 20 1956 of the magistrate first class howrah in case number 1 c of 1954.
the five orders with which we are companycerned were exhibited separately and to those we number turn.
judgment of s. k. das and a. k. sarkar jj.
the appellant then moved the learned sessions judge of howrah for a reference to the high companyrt but without success.
if earlier special orders regarding the health department were subsisting on december 12 1952 the chairman would number have used the words which he used on that date.
the third order came on april 7 1951 on the eve of the new election.
the learned magistrate acquitted both the accused persons.
it is admitted in this case that the election of the executives by the new board took place between april 7 1951 and july 4 1951.
this time the trying magistrate foundagainst the appellant on all questions of fact and onthe question of sanction he referred to certain orders of the chairman of the municipality and held that the power delegated to the health officer by one of thoseorders had number been revoked and therefore the healthofficer was companypetent to sanction the prosecution.
of the remaining two bottles one was sent for analysis of the sample to the public analyst west bengal.
health department.
howrah municipality.
order.
s. k. mukherjee chairman.
the 20th december 1949.
cash department.
accounts department.
while granting th certificate das gupta j. giving the decision of the division bench said on the 4th july 1951 in my opinion the health officer of the municipality had numberlonger in him the powers to order prosecution in any case regarding the health department and that power was at that time vested in the vice chairman of the municipality shri sankar lal mukherjee as a result of delegation by the chairman by the order exhibit d. on the 12th december 1952 the new chairman shri k. c. datta passed a further order revoking his previous order dated 4th july 1951 so far as it related to the health department.
v. howrah municipality.
the administrator howrah municipality then preferred an application in revision to the high companyrt of calcutta.
i hereby revoke my order dated the 4th july 1951 so far as it relates to health department which shall henceforth be direct under my charge until further orders.
134 1 c of the constitution and filed this appeal.
i hereby delegate to the vice chairman sri sankar lal mukherji all my powers duties and functions as chairman in respect of the following departments which are placed under his charge.
the sessions judge appellate jurisdiction who was moved by a criminal motion rejected the motion.
the 4th july 1951.
the exact date on which the new election took place is number knumbern but it is admitted that some time between april 7 1951 and july 4 1951 the new executives had companye into being.
one bottle was left with missir as required by the rules.
it number merely revoked the order dated 4 1951 but said that the health department shall hence forth be direct under my charge until further orders.
k. c. dutta chairman.
criminal appellate jurisdiction criminal appeal number 159 of 1956.
on april 7 1951 however the chairman passed anumberher order which imposed a time limit by the expression till the election of the executives by the new board.
this butter was being sold to customers.
from that summary order of dismissal the appellant asked for and obtained from a division bench of the high companyrt a certificate for leave to appeal to this companyrt under article 134 1 c of the constitution.
on july 4 1951 the new chairman passed the following order i hereby delegate to the vice chairman sri sankar lal mukherjee all my powers duties and functions as chairman in respect of the following departments which are placed under his charge assessment department except power under section 146 m. act.
a sum of rs.
the order dated december 12 1952 is important.
on december 2 1953 during the currency of the license the health officer of the howrah municipality along with his sanitary inspector and a peon visited the establishment and found that butter was being sold from glass jars standing on a table between the customers and the vendor.
lighting department.
i s. k. das j. the appellant ballavdas agarwala was the proprietor of a restaurant in the railway premises at howrah railway station within the municipality of howrah and his servant shyamlal missir was in charge of that restaurant.
the fifth order was passed on december 121952 which said i hereby revoke my order dated the 4th july 1951 so far as it relates to the health department which shall henceforth be direct under my chargeuntil further orders.
by order dated july 4 1951 the new chairman delegated his powers to the vice chairman in respect of six departments including the health department though the earlier delegation in favour of the vice chairman was number subject to any time limit.
the appellant applied for and obtaineda certificate of fitness under art.
on january 2 1954 the sanitary inspector filed a companyplaint before the magistrate of howrah asking for the issue of summons to the appellant and his servant shyamlal for an offence under sections 488/406 and 407 of the calcutta municipal act 1923 as extended to the municipality of howrah.
the appellant then moved the high companyrt in revision but debabrata mookerjee j. dismissed it summarily.
order.
k. c. dutta chairman.
an application in revision was then moved in the high companyrt but this was summarily dismissed by a single judge.
was delivered by s. k. das j. hidayatullah j. delivered a separate judgment.
2 as the price.
under an agreement with the railway authorities the appellant had taken out a vendors license dated january 91952 by which he was permitted to sell or exhibit for sale sweetmeats betel bidi cigarettes etc.
at the retrial several points were taken on behalf of the appellant one of which was that at the relevant time the health officer had no power to sanction the prosecution.
the case was tried summarily and the magistrate acquitted both the accused because in his opinion the samples were taken number from the jar from which butter was being sold to the other customers but from anumberher jar.
2 was also given to shyamlal as the price of the sample butter.
health department.
january 15.
the public analyst of west bengal sent a report stating that the butter in question was grossly adulterated and did number companytain any butter fat and also companytained a large excess of water.
the samples were taken in clean bottles sealed and labelled on the spot under a seizure list which shyamlal signed.
the sanitary inspector then took three samples from an one pound slap of butter which was taken out of a glass jar that was fully exposed to public view and which stood open on the selling companynter.
c. chatterjee s. k. kapur and nanak chand pandit for the appellant.
c. mazumdar for the respondent.
the appellant was then absent and shyamlal was dealing with the customers.
on the aforesaid companyplaint the appellant and his servant were put on trial.
but number specifically including butter at the howrah goods shed.
one of the samples was later sent to the health department of the government of west bengal for analysis and report.
the complaint was signed by the sanitary inspector as well as the health officer.
their defence was that it was number a case of voluntary sale number of a sale of butter.
thesanitary inspector took three samples of this butter from an one pound slab and put them into three clean bottles which were sealed and labelled.
the companyplaint was signed in token of sanction by the health officer of the municipality.
