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1946 Supreme(Nagpur) 12
HIGH COURT OF NAGPUR
Bose
HEMKARAN – Appellant
Versus
MUNICIPAL COMMITTEE, BETUL – Respondent
Criminal Revision No. 432 of 1945
Decided on : 18-02-1946
H N Vaidya, V V Kelkar, Advocates
The central legal point established in the judgment is that before imposing a fine under section 215 of the Central Provinces Municipalities Act, the accused must be asked whether he would consent to the destruction of the unfit article, as required by the legislation.
Headnote:
Section 215 - Central Provinces Municipalities Act - The court held that the prosecution under section 215 of the Central Provinces Municipalities Act, read with section 159 (3), required the accused to be asked whether he would consent to the destruction of the unfit article before the matter could go before a Magistrate. The court emphasized that the power to fine is for the guilty person's contumacy and that before any person is fined, he must be afforded the chance of exercising the option given by the legislature. An omission to do so is not a curable irregularity.
Fact of the Case:
The accused stored certain tins of ghee which were proved to have been unfit for human consumption. He was prosecuted and fined under section 215 of the Central Provinces Municipalities Act read with section 159 (3). The accused was not asked whether he would consent to the destruction of the unfit article.
Finding of the Court:
The court found that the accused was not asked whether he would consent to the destruction of the unfit article, which was a condition precedent to an exercise of authority under section 215. Therefore, the Magistrate had no power to impose a fine. The court allowed the revision to the extent that the order regarding the imposition of the fine was set aside and the fine, if paid, would be refunded.
Issues: The key issue was whether the accused was asked to consent to the destruction of the unfit article before the matter could go before a Magistrate, as required by section 215 of the Central Provinces Municipalities Act read with section 159 (3).
Ratio Decidendi: The court's decision was based on the interpretation of section 215 of the Central Provinces Municipalities Act and section 159 (3), emphasizing the requirement for the accused to be asked whether he would consent to the destruction of the unfit article before the matter could go before a Magistrate. The court highlighted that the power to fine is for the guilty person's contumacy and that before any person is fined, he must be afforded the chance of exercising the option given by the legislature.
Final Decision: The revision was allowed to the extent that the order regarding the imposition of the fine was set aside and the fine, if paid, would be refunded.
Bose—This revision must be allowed. The prosecution is under section 215 of the Central Provinces Municipalities Act read with section 159 (3). The accused stored certain tins of ghee which are proved to have been unfit for human consumption. He was prosecuted and fined. The order purports to be under section 215. But the condition precedent to an exercise of authority under section 215 is that the article should be brought before the Magistrate under section 159 (3).
2. Section 159 (3) cannot come into play until the person in possession has been asked whether he will consent to the destruction of the unfit article. It is only if he refuses that the matter can go before a Magistrate, and the power to fine is as much for the guilty person's contumacy as for anything else. Here the accused was not asked.
3. The scheme of section 159 is first of all to empower an inspection to be made for the purposes of discovering articles of food, etc, which are unfit for human consumption. If such are found they can be seized. The owner or possessor has next to be asked whether he will consent to their destruction. If he agrees the article is destroyed and the matter ends there so far as the Municipalities Act is concerned. It is only if he does not consent, after having been asked, that the matter can be placed before the Magistrate under section 215. It is clear then that the legislature gives such persons the option of consenting to the destruction of offending articles or of fighting the case before a Magistrate. Only in the latter event can a fine be imposed. Therefore, before any person is fined he must be afforded the chance of exercising the option which the legislature has given him. An omission to do so is not a curable irregularity.
4. There is no evidence here to show that either accused was asked, nor does the challan assert that. What the accused was asked to do was to sign a seizure memo affecting the sample taken. Not a word was said about destroying the offending article. That being the case the Magistrate had no power to impose a fine.
5. The accused on being asked by me consents to the destruction of the ghee which was seized. If that has not been done, it will be done now. The rest of the order regarding the imposition of the fine is set aside. The fine if paid will be refunded. The revision is allowed to that extent.
Final Result : Allowed
