Judgment

S. K. DAS, J. (On behalf of himself and A. K. Sarkar, J.) : The appellant Ballavdas Agarwalla 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. Under an agreement with the Railway authorities, the appellant had taken out a vendor s license dated January 9, 1952, by which he was permitted to sell or exhibit for sale sweetmeats, betel, bidi, cigarettes etc., but not specifically including butter, at the Howrah goods shed. On December 2, 1953, during the currency of the license, the Health Officer of the Howrah Municipality along with his Santiary 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. The appellant was then absent, and Shyamlal was dealing with the customers. The Sanitary Inspector then took three samples from an one-pound slab of butter which was taken out of a glass jar that was fully exposed to public view and which stood open on the selling counter. The samples were taken in clean bottles, sealed and labelled on the spot under a seizure list which Shyamlal signed. A sum of Rs. 2 was also given to Shyamlal as the price of the sample butter. One of the samples was later sent to the Health Department of the Government of West Bengal for analysis and report. The Public Analyst of West Bengal sent a report stating that the butter in question was grossly adulterated and did not contain any butter fat, and also contained a large excess of water. On January 2, 1954, the Sanitary Inspector filed a complaint 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 complaint was signed in token of sanction by the Health Officer of the Municipality.

2. On the aforesaid complaint, the appellant and his servant were put on trial. Their defence was that it was not a case of voluntary sale, nor of a sale of butter. The learned Magistrate who tried the case in the first instance held that no case 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 not purchased from the jar from which butter was being sold to other customers. The learned Magistrate acquitted both the accused persons.

3. The Administrator, Howrah Municipality, then preferred an application in revision to the High Court of Calcutta. The High Court set aside the order of acquittal and ordered a retrial by another magistrate.

4. 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. This time the trying magistrate found against the appellant on all questions of fact, and on the 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 those orders had not been revoked and, therefore, the Health Officer was competent to sanction the prosecution. The appellant was accordingly convicted under Ss. 406 and 407 read with S. 488 of the Calcutta Municipal Act and sentenced to a fine of Rs. 200 or in default simple imprisonment for 30 days.

5. The appellant then moved the learned Sessions Judge of Howrah for a reference to the High Court, but without success. An application in revision was then moved in the High Court, but this was summarily dismissed by a Single Judge. From that summary order of dismissal, the appellant asked for and obtained from a Division Bench of the High Court a certificate for leave to appeal to this Court under Article 134(1) (c) of the Constitution. While granting the certificate Das Gupta, J., giving the dec