Jagat Narayan, J.—This is a revision application by one Swaroop Ram who has been convicted under sec. 7(i) and 16(ii) of the Food Adulteration Act and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 1500/-or in default to undergo rigorous imprisonment for three months.

2. Two points were mainly argued on behalf of the applicant. One was that the chairman of the Municipal Board who granted the sanction was not duly authorised to do so and the other was that the sanction was bad. Reliance was placed on the decision of a learned single Judge of this Court in Chhanwar Lal vs. The State (S.B. Cr. Revision No. 198/62 decided on 28.2.1963).

3. The point that the chairman had no authority to grant sanction in the present case was not raised on behalf of the applicant in the trial court. It was sought to be raised for the first time in the appellate court but the latter declined to go into it, and rightly so in my opinion as it is a mixed question of fact and law. However, I find that under sec. 23(d) of the Rajasthan Town Municipalities Act, 1951 as well as under sec. 67(d) of the Rajasthan Municipalities Act, 1958 the chairman has authority to perform all executive acts on behalf of the Board. The chairman consequently could grant sanction to prosecute in this case as granting of such sanction was an executive act.

4. In Chhanwar Lals case (supra), according to the learned counsel for the appellant the prosecution relied on the following resolution of the Board:—

"This Board hereby resolve that the Health Officer of this Boar i shall be licensing authority and the President of the Board shall be the local authority under sec. 20 of the Prevention ofFood Adulteration Act, 1954 to accord consent for any prosecution of any licensee under sec.20 of the Prevention of Food Adulteration Act."

5. Learned counsel contends that as the applicant is not a licensee the chairman had no authority to grant sanction for prosecution in this case. This argument is based on two presumptions. Firstly that in this case also the prosecution relies on the same resolution of the Board which was relied upon in Chhanwar Lals case and secondly that in fact the applicant is not a licensee. There is no evidence on record to show whether he is or is not a licensee. There is however, an inventory form Ex. P. 2 which contains a column for entering the licence number of the person prosecuted. This column is blank.

6. Assuming that the applicant is not a licensee, the chairman had power to sanction the prosecution in the present case under sec. 23(d) of the old Act and sec. 67(d) of the new Act. It has not been shown that the power of the Board to sanction prosecution has been delegated to any person or authority other than the chairman in the case of the persons who do not hold a licence.

7. With regard to the contention that the sanction is bad, the argument of the learned counsel is two-fold. Firstly, it is contended that the sanction is bad as the section of the Prevention of Food Adulteration Act under which the prosecution was being sanctioned was not specified. The second argument is that there is nothing to show that the chairman applied his mind to the facts of the case. So far as the specification of section is concerned, I am of the opinion that it is not necessary. The facts on which the prosecution is based should however, be placed before the authority and the authority should apply its mind to them before granting sanction. As was observed in Tulsiram Vs. The State of Uttar Pradesh(l), there is a presumption from the official act of the chairman granting the sanction that it was regularly performed. There is nothing on record to rebut the presumption so arising. On the contrary, the statement of the Inspector shows that the chairman duly applied his mind to the facts of the case before granting the sanction.

8. Another point which was argued was that no opportunity was given to the applicant to cross-examine Jeevraj P. W. 2. On the

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