The Chairman of The Bankura
Municipality Vs. Lalji Raja and Sons  INSC 52 (23 March 1960)
GUPTA, K.C. DAS
CITATION: 1960 AIR 871 1960 SCR (3) 358
Municipality-Unwholesome food--Seized under
warrant--If can be directed to be destroyed--Bengal Municipal Act, 1932 (Ben.
Act. XV of 1932), ss. 430, 431(2).
The respondents were the owners of an oil
seed pressing factory situated within the limit of a municipality. They used to
import mustard seeds from different areas and they also held a (1) (1952)
L.A.C.103. (2)(1958)1 L.L.J. 63. (3) A.I.R. 1959 Bom. 248.
359 licence for selling Mustard seed. On a
report of the Sanitary Inspector of the Municipality, the Sub-Divisional
Officer issued a search warrant directing seizure of a large quantity of "
rotten and decomposed mustard seed " from the possession of the
respondents. The Chairman of the Municipality applied to the District
Magistrate for action under s. 431 and s. 432 of the Bengal Municipal Act. The proceedings
started on the petition of the Chairman of the Municipality had a chequered
career. Ultimately the District Magistrate found that the mustard seed was
unwholesome and unfit for human consumption on the date of seizure and
directed, in exercise of the powers under S. 431(2) of the Act, that the same
be made over to the Commissioners of the Municipality for disposal either as
manure or as cattle feed. The High Court in revision set aside the order of the
District Magistrate holding that s. 431 of the Act under which the order was
made did not apply to a case of seizure of unwholesome food under a warrant
issued under s. 430. On appeal by the Municipality by special leave:
Held, that the powers under s. 431(2) of the
Bengal Municipal Act (XV of 1932), were expressly directed to be exercised by
the Magistrate in respect of articles seized under s. 428, and there was
nothing in s. 431(2) which might justify tile view that those powers could also
be exercised in respect of articles seized under a warrant issued under s. 430.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 119 of 57.
Appeal by special leave from the judgment and
order dated the 24th August, 1955, of the Calcutta High Court in Criminal
Revision No. 596 of 1955.
C. B. Agarwala and Sukumar Ghose, for the
B. Sen and S.N. Mukherjee, for the
March 23. The Judgment of the Court WAS
delivered by SHAH, J.--M/s. Lalji Raja & Sons-who will hereinafter be
referred to as the respondents-are the owners of an oil seed pressing factory
known as the Gouranga Oil Mill situated within the limits of the Bankura
Municipality in the State of West Bengal. For extracting oil, the respondents
import mustard seed from different areas. The respondents also hold a license for
the @ale of mustard Seed.
On the application of the Sanitary Inspector
of the Bankura Municipality, the Sub-Divisional Officer, Bankura, issued a
search warrant directing seizure of 900 bags of "rotten and decomposed
mustard seed", 600 bags stored in the mill godown and 300 bags stored 360
in the court-yard of the rice mill at Hanseswar Maji.
Pursuant to the search, a large quantity of
mustard seed spread out for drying in the Gouranga Oil Mill was seized, and
certain bags lying in the rice mill were also seized.
On the report made by the Sanitary Inspector,
the Chairman of the Municipality applied to the District Magistrate of Bankura
on March 10, 1950, for action under ss. 431 and 432 of the Bengal Municipal
Act, No. XV of 1932, alleging that the mustard seed seized was " in a
highly decomposed state and gave out an offensive stench" and that the
same was unwholesome and unfit for human consumption.
The proceedings started on the petition of
the Chairman of the Municipality had a chequered career. it is unnecessary to
sit out for the purposes of this appeal the diverse orders which were made from
time to time by the District Magistrate and which were set aside by the High
Court of Judicature at Calcutta. It may be sufficient to state that on May 26,
1950, the District Magistrate ordered restoration of the mustard seed bags to
the respondents and that order was set aside bags Division Bench of the
Calcutta High Court in revision. Another order passed by the District Magistrate
in April 1951 directing that the contents of the bags be disposed of as "
manure or fodder " was set aside by the Calcutta High Court and the
proceedings were directed to be retried. The District Magistrate again held an
enquiry and by his order dated November 10, 1954, held that the mustard seed
was lawfully seized in accordance with the provisions of the Bengal Municipal
Act, 1932, that it was unwholesome and unfit for human consumption on the date
of seizure and directed in exercise of the powers under s. 431(2) of the Act that
the same be made over to the Commissioners of the Bankura Municipality for
disposal either as manure. or as cattle feed. The High Court at Calcutta by
order dated August 24, 1955, in exercise of its revisional jurisdiction, set
aside the order of the District Magistrate holding that s. 431 of the Bengal
Municipal Act under which the order was made, had no application to a case of
seizure of unwholesome food seized under a warrant issued under s. 430.
361 Against the order of the High Court, this
appeal is filed with special leave.
The only question which falls to be
determined in this appeal is whether articles of food seized under a warrant
issued by a Magistrate in exercise of the powers under s.
430 of the Bengal Municipal Act may be
ordered to be destroyed under s. 431(2) of the Act. In order to determine this
question, it is necessary to refer to certain provisions of the Bengal
Municipal Act, 1932.
Section 421 prohibits, amongst other acts,
selling or storing for sale of unwholesome articles to be used for human
consumption. Section 427 (in so far as it is material) authorizes the
Commissioners and certain other officers of a Municipality to enter upon and
inspect any place in which any article of food is deposited for the purpose of
sale or preparation for sale or to which any article of food intended for human
consumption is brought for such purpose, and also to inspect the articles of
food which may be found in the place inspected. Clause (1) of s. 428 confers
upon the Commissioners and the officers designated in s. 427 power to seize
articles of food intended for human consumption if, in the course of
inspection, it appears that the same are unwholesome or unfit for human
consumption. Section 429 provides that the articles of food referred to in s.
428 which have been seized under that section may, with the written consent of
the owner or the person in whose possession they are found, be ordered to be
destroyed. If the consent of the owner or the person in possession is not
obtained and the articles are of a perishable nature, the officer seizing the
same may take them before a Magistrate who may, if it appears to him that the
articles are unsound or unwholesome or unfit as human food, condemn the same or
order them to be destroyed.
Section 430 (in so far as it is material)
provides that if any Magistrate is satisfied on the application of the
Commissioners, Health Officer, Sanitary Inspector or any other officer
authorized by the Commissioner in this behalf that there is just cause to
believe that any food which is unsound, unwholesome or unfit for human food is
in the possession of any person for the 362 purpose of being sold or offered or
exposed for sale within the limits of the Municipality for such consumption, he
may grant a warrant authorizing entry upon the premises of such person and
search for and seizure of such articles of food.
Section 431 by the 1st subsection (in so far
as it is material) provides that where any article of food, seized under s. 428
is not destroyed by consent under sub-s. 1 of s. 429 or when an article of food
so seized which is perishable is not dealt with under sub-s. 2 of that section,
it shall be taken before a Magistrate as soon as may be after such seizure.
Sub-s. 2 provides that if it appears to the Magistrate that any such food is
unsound, unwholesome or unfit, for human food, he shall cause the same to be
destroyed or to be otherwise disposed of by the Commissioners so as not to be
capable of being used as human food.
It is evident from this resume of the relevant
legislative provisions that the municipal authorities are entitled to enter
upon and inspect places where articles of food are stored or prepared for sale.
If the municipal authorities find that any article of food stored or prepared
for sale is unwholesome or unfit for human food, they may seize them and
destroy the same with the written consent of the owner or person in possession,
and if such consent is not forthcoming and the articles are perishable, destroy
them under the orders of a Magistrate. But s. 428 is not the only procedure
under the Act authorizing seizure of articles. of food which are unwholesome or
unfit for human food. The municipal authorities may move a Magistrate for the
issue of a warrant for seizure of articles of food which are unsound,
unwholesome or unfit for human food, and under the authority of the warrant,
such articles may be seized.
Articles of food seized under s. 428(1) which
are not disposed of under s. 429 are required to be taken before a Magistrate
as soon as may be after seizure and under sub-s. 2 of s. 431, the Magistrate is
authorized, if it appears to him that the articles of food are unsound or
unwholesome or unfit for human food to order destruction or disposal thereof
Evidently, the expression "such" used in sub-s.2 of s. 431 refers. to
the articles of food described in sub.s. 1 of 363 that section and s. 431(1)
only deals with articles seized under s. 428. There is no express provision
made by the legislature either in s. 431 or elsewhere in the Act authorizing
destruction' or disposal of articles of food which are seized under a warrant
issued under s. 430.
Counsel for the Municipality contends that
the legislature intended that all articles seized, whether on inspection under
s. 428 or under a warrant issued under s. 430 must be dealt with under s. 431
and the High Court was in error in holding that the authority of the Magistrate
to order destruction or disposal of articles of food could be exercised only in
respect of articles seized under s. 428.
But the words used in s. 431(2) clearly
authorize the Magistrate to order destruction or disposal of articles seized
under s. 428 and not dealt with under s. 429, and it is difficult to uphold the
plea that the legislature intended, even though it did not so expressly
provide, that the articles seized under a warrant issued under s. 430 may also
be dealt with under sub-s. 2 of s. 431. Counsel for the Municipality submits
that it could not even have been the intention of the legislature that the
Magistrate can order seizure of unwholesome food but cannot order its
destruction, though he may order destruction of unwholesome articles of food
seized by the officers of the Municipality.
It appears, however, that a person storing
unwholesome articles of food may be prosecuted for infraction of the provisions
of s. 421 and in the course of or on the conclusion of those proceedings, it
would certainly be open to the Magistrate, having seiz in of the complaint, to
pass an appropriate order under the Code of Criminal Procedure for destruction
of the articles seized. In view of this, we are not prepared to say that the
absence of an express provision relating to the disposal of articles seized
under s. 430 is not deliberate; but even if we are constrained to hold that
there is a lacuna in s. 431, we do not think that we would be justified
contrary to the plain words used by the legislature, in attempting to remedy
the same by holding that a Magistrate exercising power under sub-s. 2 of s. 431
has authority to 364 order destruction of articles seized in pursuance of a
warrant issued under s. 430.
The argument advanced by counsel for the
Municipality that the seizure was in exercise of the powers under s. 428 and
not under s. 430 has, in our judgment, no force. The report of the Chairman of
the Municipality dated March 10, 1950, makes it abundantly clear that the
search warrant was issued by the Sub-Divisional Officer in exercise of his
authority under s. 430 of the Bengal Municipal Act. 'Any admission by the
respondents that the seizure was under s. 428 of the Act in proceedings for
resisting the order which the Municipality claimed to obtain against them can
have no value.
Section 428 does not contemplate a seizure of
articles of food which are unwholesome, under the authority of a Magistrate,
and s. 430 is expressly the provision which authorises a Magistrate to issue a
warrant, for such seizure. The powers under s. 431(2) are expressly directed to
be exercised by the Magistrate in respect of articles seized under s. 428, and
there is nothing in the former provision which may justify the view that those
powers can also be exercised in respect of articles seized under a warrant
issued under s. 430. In our opinion, the High Court was right in its
The appeal therefore fails and is dismissed.