ORDER

K.K. Lahoti, J.

1. The learned Single Judge has referred for opinion, on the following question :--

"Whether the complainant namely, Hardayal Dubey, could act as Food Inspector in the local area where the accused was transacting business in the absence of specific notification assigning the local area by the State Government ?"

2. The aforesaid question has been referred to us when before the learned Single Judge it was contended that the Food Inspector could not have set the criminal law in motion as he was not so authorised by the State Government. The Food Inspector was exercising the power purported to be one under Section 9(1) of the Food Adulteration Act, 1954 (in short 'the Act'). It is urged that the said person was not assigned any specific local area by the State Government and, therefore, he had no authority to act as Food Inspector in that area. On raising the aforesaid contention, the learned Single Judge has referred the question as stated hereinabove.

3. To understand the controversy involved in the case, it is necessary to state broad facts of the case. The Food Inspector, Hardayal Dubey (P.W. 1) was working on 16-4-98 as Food Inspector for Jabalpur District. On that day, petitioner, Shri Prasad, was selling milk near bus-stand, Jabalpur. On being questioned, accused disclosed that he was not having the licence to sell the milk, but he was possessing the mixed milk of cow and she buffalo. The Food Inspector after introducing himself to the accused, issued form No. 5 to him for taking food sample. He purchased 750 ML of milk kept for sale, for Rs. 4.00. The Food Inspector divided sample in three equal parts and filled them up in dried bottles. Preservative formalin was mixed in the milk. All the three bottles were closed and sealed with wax. The panchnama (Annexure P-7) was prepared on the spot. The receipt of Rs. 4 was issued as Annexure P-6. Food Inspector sent one bottle of the sample to the public analyst by Annexure P-8 to State Laboratory, Bhopal. The Public Analyst examined the sample on 14-10-88 and found that the sample was adulterated. One copy of the report of public analyst was sent to the accused vide letter (Annexure P-12). The Deputy Director, Food and Civil Supplies accorded permission vide Annexure P-14 to prosecute the accused. The Food Inspector filed challan on 31-12-88 in the Court of Judicial Magistrate First Class, Jabalpur. Accused also sent another sample of the milk to Central Laboratory, Gajiabad for examination, who also examined and sent his report in which he had also found that the sample did not conform to the prescribed standard. The Trial Court framed charges and after recording the evidence found the accused guilty. The accused was convicted under Section 7(1) read with Section 16(1)(a) of the Act and was sentenced to six months' R.I. with fine of Rs. 1,000/-.

4. The appeal preferred by the accused was also dismissed by Sixth Additional Sessions Judge, Jabalpur. During the course of arguments before the Revisional Court, the aforesaid question was raised resulting in this reference.

5. The learned Counsel appearing for the accused/applicant argued that under Section 9 of the Act, the 'local area' has to be assigned to the Food Inspector and in the absence of assigning such local area to the Food Inspector, he was having no authority to collect the sample from the accused. In the absence of specific notification assigning the local area by the State Government under Section 9 of the Act, the Food Inspector could not take the sample from the accused. Consequently, the prosecution of the accused is without any authority. Contending aforesaid, the learned Counsel for applicant submits that the specific notification assigning the local area is mandatory in view of Section 9 of the Act and this reference deserves to be answered in favour of the accused.

6. The learned Counsel appearing for State contended that in the present case, the Food Inspector was duly notified for the Jabalpur District by the Deputy Director of Food and Drugs Administration, who is the local authority within the meaning of Section 9 of the Act and in this regard, specific order was issued as contained in Annexure P-3 empowering Food Inspector, Hardayal Dubey, for the entire area of District Jabalpur including all the areas of Municipal Corporation, Cantonment Board and notified areas of District Jabalpur. In the circumstances, the notification which was issued under Section 24 of the Act empowers the Food Inspectors to take the sample. In these circumstances, it is not necessary that the State Govt. should itself issue notification and the notification issued by the Deputy Director of Food and Drugs Administration is the sufficient compliance of the Act. She has placed reliance on a Single Bench judgment of this Court in Mohan Singh v. State of Madhya Pradesh, 1995 MPLJ 62, and contended that the aforesaid reference deserves to be answered in favour of the State.

7. To appreciate the rival contentions, it will be proper to see various provisions of the Act, as well as the Rules thereunder. Section 9(1) of the Act provides as under :--

"9. Food Inspectors.-- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local area as may be assigned to them by the Central Government or the State Government, as the case may be :

Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section.

(2) .......... ................... ..................."

8. The term 'local area' is defined by Section 2(vii) of the Act which reads as under :--

"2. (vii) 'local area" means any area, whether urban or rural, declared by (the Central Government or the State Government) by notification in the Official Gazette, to be a local area for the purposes of this Act;"

9. Section 24 of the Act provides power to the State Government to make Rules. The relevant part of Section 24 reads as under :--

"24. Power of the State Government to make rules.-- (1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of Section 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may--

(a) define the powers and duties of the Food (Health) Authority, Local authority and Local (Health) Authority under this Act. *** *** *** *** ***"

10. The language of Section 9 of the Act, therefore, very clearly provides that a Food Inspector, who has the prescribed qualifications, may be appointed for such local area as may be assigned to him by the Government and that such appointment has to be made by a notification in the Official Gazette. Thus, the Food Inspector must necessarily have jurisdiction only for such area as is assigned to him by a notification. It will be seen from the definition of the term "local area'" has to be defined by a Notification in the Official Gazette to be a local area.

11. A further guidance to the definition and interpretation of the term "local area" can be had from the definition of the term : "local authority". The definition runs as under :--

"(viii) "local authority" means in the case of--

(1) a local area which is--

(a) a municipality, the Municipality Board or Municipal Corporation;

(b) a cantonment, the cantonment authority;

(c) a notified area, the notified area committee;

(2) any other local area, such authority as may be prescribed by the Central Government or the State Government under this Act."

12. This definition gives a further clue that a municipality itself can be declared as a local area and if it is so declared, then the Municipal Board or the Municipal Corporation would be a local authority. The definition of the term "Local Health Authority" runs as under:--

"(viii-a) "Local Health Authority", in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be inchargc of Health Administration in such area with such designation as may be specified therein."

13. On this backdrop, it will be interesting to sec the power of the Food Inspector as we are dealing in this case principally with the powers of the Food Inspector. Relevant part of Section 10 of the Act runs as under :--

"10. Power of Food Inspectors.-- (1) A food inspector shall have power--

(a)to take samples of any articles of food from-

(i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him; and

(b) to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken;

(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. (Explanation is not necessary for our purpose).

(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and lake samples of such article of food or adulterant for analysis (proviso is not relevant for our purpose)."

14. The specific language of Section 9(1) suggests that the creation of a post of a Food Inspector has to be with reference to a local area and thus, the term "Food Inspector" would itself mean a Food Inspector appointed for a particular local area. A conjoint reading of Section 9(1), Section 10(1) and Sub-section (2) which have been quoted above would certainly bring out a position that a Food Inspector can operate for the purposes of taking samples of the food articles in the local area for which he is appointed. Section 10(1)(b) makes a specific reference as to the power of the Food Inspector to send a sample for analysis to the Public Analyst, who is a Public Analyst for the local area within which such sample has been taken. Sections 9 and 10 of the Act can not be read in isolation and it will have to be deducted wherever there is a reference to the term "Food Inspector" it has only to be meant as a Food Inspector appointed for a particular local area. Sub-sections (1) and (2) of Section 10 of the Act specifically refer to the power of the Food Inspector to obtain the samples of the food articles from the persons selling such articles or the persons who are dealing with such articles or a consignee. Sub-section (2) of Section 10 of the Act specifically empowers the Food Inspector to enter and inspect any place where any article of food is manufactured or stored for sale, or stored for the manufacture of any other article of food for sale or any such place which a Food Inspector suspects to be storing any adulterant. A clear-cut reference to the term "Food Inspector" and "Local area" in these provisions would clearly bring out a position that the Food Inspector may do all these duties only in respect of the "local area" for which he is appointed. Even in Form No. VI, which is required to be passed to the seller of food article under Rule 12 as also Form No. VII, which is a Memorandum to the Public Analyst, the Food Inspector is expected to mention his area. This would sufficiently show that the Food Inspector is integrally connected with the local area and the concept of a Food Inspector can not be accepted without there being a corresponding local area in his case.

15. The "local authority" and "local health authority" have been defined in Section 2(viii) and 2(viii)(a) read as under :--

"2. (viii) "local authority" means in the case of--

(1) a local area which is--

(a) a municipality, the municipal board or municipal corporation;"

The aforesaid provision provides that the local authority in case of a local area which is a municipality, is the Municipal Board or Corporation. The "Local Health Authority" in relation to the local area means the officer appointed by the Govt. by notification in the official gazette and the Government of M.P. vide Notification No. 2/1/2655/7/H, dated 19th August, 1958, and vide Notification No. 240-8789-X-VII-Med/IV, dated 13th July, 1996 in conformity with Section 2(8) of Act have declared the local area and the local authority for notified local area and accordingly declared as under :--

(1) Municipal Board of Municipal Corporation in local area for Municipality,

(2) Cantonment authority is local authority in cantonment;

(3) Notified area committee is local authority for any notified area;

(4) Civil Surgeon of the district is local authority within the jurisdiction of the Panchayal or Janpad Panchayat within the district.

16. The Single Bench of this Court in Mohan Singh (supra), considering this question held :--

"3. Section 9 of the Act stated inter alia, that the Central Government or the State Government, may by notification in the official gazette appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be. There has been no contention that P.W. 3 does not have the qualification prescribed for the office of Food Inspector. Section 23 confers power on Central Government to make rules. Section 24 confers powers on the State Government to make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of Section 23. The State Government has framed rules in 1962. Rule 4 deals with the powers and duties of Local Authority. Local Authority shall be responsible for the proper day to day administration and enforcement of the Act within its jurisdiction. The Local Authority shall appoint a Health Officer or officers for the purpose of the Act having jurisdiction over the whole or part of its area as it may specify. Sub-rule (3) of Rule 4 states that the Local Authority may appoint persons in such numbers as it may think fit, having qualifications prescribed under the Rules to be Food Inspectors for the purpose of the Act and they shall exercise powers within such local area as it may assign to them with the approval of the Authority. It is pointed out that the expression 'Local Authority' has not been defined in the Act. "Local Authority" has been defined in Section 2(viii) of the Act. Section 2(viii)(2) states that 'Local Authority" means in the case of a local area other than a municipality, or a cantonment, or a notified area, such authority as may be prescribed by the Central Government or the State Government under the Act. The expression 'Prescribed' has been defined in Section 2(xi) of the Act as meaning 'prescribed by rules made under this Act'. It is, therefore, contended that the prescription by the State Government of 'Local Authority' can only be by rules and not by executive orders.

11. Normally whenever, a word is defined in a statute and that word occurs in the succeeding sections, the meaning given in the definition clause must be applied in construing the sections concerned. However, if in the subject or context of a particular section, it appears that there is something different or repugnant so that the definition can not be fitted in, the Court is at liberty to construe the word occurring in the section in a manner in which it has not been defined and to give it the ordinary meaning or some other meaning opposite to the context or the subject. The ordinary meaning of the word 'prescribe' is 'lay down or impose authoritatively' (see : The Concise Oxford Dictionary -Fifth Edition). Section 2(viii) which deals with the definition of 'Local Authority' is in two parts. In the first part, the statute itself locates the Local Authority in relation to Municipality, Cantonment or Notified Area. In the second part, it is stated that Local Authority in any other local area is such authority as may be prescribed by the Government under the Act. If rules are required to prescribe Local Authority in such cases also the exercise will become too rigid since rules are required to be laid before the State Legislature. Such a rigid meaning for the word 'prescribe' is not indicated by the context of the definition of 'Local Authority'. Therefore, the Government notification prescribing District Family Planning and Health Officer or Civil Surgeon (redesignated as Chief Medical Officer) as Local Authority has to be regarded as a valid prescription though it is not made by way of rules. That being so, Ex. P-4 notification issued by the District Family Planning and Health Officer and Ex. P-5 notification issued by Chief Medical Officer constitute valid appointment empowering P.W. 3 to act as Food Inspector."

17. In the present case, the Deputy Director, Food and Drugs Administration, namely, Chief Medical Officer, who is local health authority, has issued an order on 1-9-1983 which reads as under :--

"OFFICE OF THE DY. DIRECTOR FOOD & DRUGS ADMINISTRATION LOCAL HEALTH AUTHORITY AND CHIEF MEDICAL OFFICER (CIVIL SURGEON), JABALPUR (M.P.)

Jabalpur, dated 1-9-1983

ORDER

In exercise of the powers conferred by Section 24 of the Prevention of Food Adulteration Act and the rules made thereunder Sub-section (2) of Clause (viii) of Section 2 of the Act, and vide Government of M.P. Notification No. 307-3091/XVII/Mcd. 4, dated 14-2-83 and with the approval of State Government of M.P., Bhopal according to Controller, Food & Drugs Administration, Bhopal letter No. 17/FAS/Distt./I/83/23796-840, Bhopal, dated 6-7-83, I Dr. V.K. Gupta, Chief Medical Officer (Civil Surgeon), Dy. Director, Food and Drugs Administration and Local Health Authority, District Jabalpur, hereby assign the areas to the following Sanitary-cum-Food Inspectors for the whole District Jabalpur, including all the Municipalities, Corporation, Cantonment Board and notified areas District Jabalpur, in which they shall exercise these powers under P.F.A. Act and Rules within the above such jurisdiction District Jabalpur.

__________________________________________________________________

Sr. No. Name of Food Inspectors Head Quarters Area assigned __________________________________________________________________

1. Shri V.B. Trivedi Jabalpur District Jabalpur

2. Shri H.D. Dubey -- do-- -- do--

3. Shri M.A. Ansari --do-- -- do--

4. Shri B.K. Verma -- do-- -- do--

5. Shri R.S. Yadav --do-- -- do--

6. Shri K.P. Shrivastava -- do-- -- do--

7. Shri B.L. Burman --do- --do--

__________________________________________________________________

Sd/-

Chief Medical Officer,

Dy. Director, Food and Drugs Adm.,

Local Health Authority, Distt. Jabalpur.

18. The aforesaid order specifically confers power on Food Inspector, Hardayal Dubcy has assigned the area of entire Jabalpur to exercise the powers under P.F.A. Act and Rules. This is the sufficient compliance of the Act.

19. As the State Government has empowered the local authority under Section 2(viii-a) of the Act, to appoint Food Inspector for local area. In the circumstances, the notification (Annexurc A-3) empowers Food Inspector, Hardayal Dubey to act as Food Inspector in the local area of Jabalpur. The notification assigning the local area to Food Inspector was valid. If the local authority has empowered the Food Inspector to act with the local area, then it is not necessary for the State Govt. to issue another notification and the notification issued by the local authority is valid and in accordance with law. But in the absence of any notification assigning local area to the Food Inspector either by the State Govt. or by local authority, the Food Inspector can not transit his business under the provisions of Prevention of Food Adulteration Act, 1954 of the area. In view of aforesaid discussion, our answer to the referred question is that :--

"The complainant, namely, Hardayal Dubcy could act as Food Inspector in the local area where the accused was transacting business because he was duly authorised by the local authority for the local area, Jabalpur, empowering him to act as Food Inspector as such an assigning by the, local authority is permissible in law."

Accordingly, the referred question is answered.