Madan Lal Briju Lal and Another vs Emperor

The facts out of which this application has arisen were as follows. The Chairman of the Buxar Municipality applied to the Sub-divisional Officer for the issue of a warrant of the seizure of fifty bags of flour alleged to be exposed for sale in the petitioners'' shop and to be in a state unfit for human consumption. The Sub-divisional Officer issued a warrant and the flour was seized. Later the Sub-divisional Magistrate ordered the flour to be destroyed and it was destroyed in his presence. Thereupon the petitioners instituted a suit for damages against the Sub-divisional Officer and other persons concerned in the seizura and destruction of the flour. The Chairman wrote a letter to the Sub-divisional Magistrate praying that the petitioners be prosecuted u/s 273, I.P.C., for exposing for sale food unfit for human consumption.

The letter was a complaint and on that letter the petitioners'' prosecution has been ordered. The petitioners applied to this Court in revision and asked that the proceedings be quashed or that they be stayed pending the disposal of the civil suit.

The substantial point that has been urged on their behalf by their counsel is that the present prosecution is in contravention of Section 30, Bihar and Orissa General Clauses Act (1 of 1917). That section is as follows:

Where an act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.

The contention is that the act of exposing for sale food unfit for human consumption constitutes an offence both under the Penal Code and under the Bihar and Orissa Municipal Act of 1922 and that the petitioners have in fact been punished under the latter act by the destruction of his fifty bags of flour. The first question is whether the exposure of food unfit for human consumption is an offence under the Municipal Act. u/s 4, Sub-section (38), "offence" means "any act or omission made punishable by any law for the time being in force."

u/s 288, Municipal Act, the penalty for being in possession of an article unfit for human consumption is that the article may be seized and destroyed and the person in possession of the article may be punished with a fine extending to Rs. 100. When food unfit for consumption is exposed for sale therefore the exposure constitutes an offence u/s 273, I.P.C., and the person in possession of such food is one who is punishable under the Municipal Act. This however does not dispose of the case.

In the present case although there was an inquiry as to the state of the flour that was seized, it does not appear that the Magistrate took legal evidence for the purpose of determining whether the flour was in the state alleged and whether it was in possession of the accused persons. Section 30, Bihar and Orissa General Clauses Act contemplates an act or omission for which the offender is prosecuted. Prosecution implies the trial of a person accused of an offence. In the present case the accused persons do not appear to have been put on their trial in that sense and there is no evidence that they were even before the Court and no evidence was adduced, as I have already remarked.

There was therefore no prosecution within the meaning of Section 30 of the Act.

The Magistrate purported to destroy the flour in the exercise of the power conferred upon him u/s 287, Municipal Act, which empowers him to issue a warrant for the seizure of food unfit for human consumption and to forfeit it if it is found in an unfit state and to dispose of it in any way as to him may seem proper. Section 287 does not appear to contemplate judicial proceedings, but merely executive action, and its object appears to be not the punishment of the person in possession of the noxious food but prevention of its sale to the public.

In my opinion therefore the act of being in possession of this food was not an offence in respect of which there has been a prosecution before the Sub-divisional Magistrate in the proceedings which resulted in the destruction of the food and therefore there is no bar to the present prosecution of the petitioners under the Penal Code.

The second point urged by Mr. Sinha on behalf of the petitioners is that these proceedings should be stayed pending the disposal of the civil action. The settled practice of this Court is not to stay criminal proceedings pending the disposal of civil suits unless there is some very good reason for doing so.

In the present case the civil suit may merely turn on points which have nothing to do with the criminal liability of the petitioners and therefore there is no reason why their prosecution should be stayed till the decision of the civil suit instituted against the Sub-divisional Magistrate. In the result the petition is rejected.