1960 (1) TMI 42 - SC - Indian Laws

Summary

Issues Involved:
1. Responsibility for the sale of butter.
2. Adulteration of butter.
3. Authority of the Health Officer to sanction prosecution.
4. Nature and import of Section 537 of the Calcutta Municipal Act, 1923.

Issue-wise Detailed Analysis:

1. Responsibility for the Sale of Butter:
The appellant argued that he was not responsible for the sale of butter as the license did not authorize its sale. However, it was found that the sale occurred at the appellant's restaurant, and under Sections 406 and 407 of the Calcutta Municipal Act, the sale of adulterated or misbranded articles is an offense. The court held that the appellant was vicariously liable for the actions of his servant under the principle of "qui facit per alium facit per se" (he who acts through another does the act himself).

2. Adulteration of Butter:
The appellant contended that there was no "adulteration" since the sample did not contain any butter fat. The court noted that the definition of "adulteration" in the Act includes articles that do not contain the basic substance either wholly or partly. Thus, the argument that there was no adulteration was rejected.

3. Authority of the Health Officer to Sanction Prosecution:
The critical issue was whether the Health Officer had the authority to sanction the prosecution. The court examined several orders and delegations of power within the Howrah Municipality. It was determined that the Health Officer did not have the authority to sanction the prosecution at the relevant time because the necessary delegation of power from the Chairman to the Health Officer had been revoked. The court concluded that the Health Officer was not empowered as the duly delegated authority to institute criminal proceedings against the appellant on the date the complaint was made.

4. Nature and Import of Section 537 of the Calcutta Municipal Act, 1923:
The court analyzed whether Section 537 was merely enabling or obligatory. Section 537 outlines the powers of the Commissioners to institute, defend, or withdraw from legal proceedings. The court held that the provisions of Section 537 are obligatory, meaning that legal proceedings under the Calcutta Municipal Act must be instituted in accordance with the provisions of the Act. The court reasoned that if anyone could institute legal proceedings under the Act, Section 537 would become otiose. Therefore, the absence of a proper complaint by the Commissioners or a duly delegated authority affected the jurisdiction and initiation of proceedings.

Judgment:
The appeal was allowed, and the conviction and sentence against the appellant were set aside. The fine, if paid, was ordered to be refunded to the appellant. The majority judgment concluded that the Health Officer did not have the authority to sanction the prosecution, and the provisions of Section 537 of the Calcutta Municipal Act were obligatory, thus invalidating the legal basis for the conviction.