minal Appeal No 119 of 57
Appeal by special leave from the judgment and order dated the 24th August 1955 of the Calcutta High Court in Criminal Revision No 596 of 1955
C B Agarwala and Sukumar Ghose for the appellant
B Sen and SN Mukherjee for the respondents
March 23
The Judgment of the Court WAS delivered by SHAH J
Ms
Lalji Raja  Sons who will hereinafter be referred to as the respondents are the owners of an oil seed pressing factory known as the Gouranga Oil Mill situated within the limits of the Bankura Municipality in the State of West Bengal
For extracting oil the respondents import mustard seed from different areas
The respondents also hold a license for the ale of mustard Seed
On the application of the Sanitary Inspector of the Bankura Municipality the Sub Divisional Officer Bankura issued a search warrant directing seizure of 900 bags of rotten and decomposed mustard seed 600 bags stored in the mill godown and 300 bags stored 360 in the court yard of the rice mill at Hanseswar Maji
Pursuant to the search a large quantity of mustard seed spread out for drying in the Gouranga Oil Mill was seized and certain bags lying in the rice mill were also seized
On the report made by the Sanitary Inspector the Chairman of the Municipality applied to the District Magistrate of Bankura on March 10 1950 for action under sections 431 and 432 of the Bengal Municipal Act No XV of 1932 alleging that the mustard seed seized was  in a highly decomposed state and gave out an offensive stench and that the same was unwholesome and unfit for human consumption
The proceedings started on the petition of the Chairman of the Municipality had a chequered career
it is unnecessary to sit out for the purposes of this appeal the diverse orders which were made from time to time by the District Magistrate and which were set aside by the High Court of Judicature at Calcutta
It may be sufficient to state that on May 26 1950 the District Magistrate ordered restoration of the mustard seed bags to the respondents and that order was set aside bags Division Bench of the Calcutta High Court in revision
Another order passed by the District Magi strate in April 1951 directing that the contents of the bags be disposed of as  manure or fodder  was set aside by the Calcutta High Court and the proceedings were directed to be retried
The District Magistrate again held an enquiry and by his order dated November 10 1954 held that the mustard seed was lawfully seized in accordance with the provisions of the Bengal Municipal Act 1932 that it was unwholesome and unfit for human consumption on the date of seizure and directed in exercise of the powers under section 4312 of the Act that the same be made over to the Commissioners of the Bankura Municipality for disposal either as manure
or as cattle feed
The High Court at Calcutta by order dated August 24 1955 in exercise of its revisional jurisdiction set aside the order of the District Magistrate holding that section 431 of the Bengal Municipal Act under which the order was made had no application to a case of seizure of unwholesome food seized under a warrant issued under section 430 361 Against the order of the High Court this appeal is filed with special leave
The only question which falls to be determined in this appeal is whether articles of food seized under a warrant issued by a Magistrate in exercise of the powers under section 430 of the Bengal Municipal Act may be ordered to be destroyed under section 4312 of the Act
In order to determine this question it is necessary to refer to certain provisions of the Bengal Municipal Act 1932
Section 421 prohibits amongst other acts selling or storing for sale of unwholesome articles to be used for human consumption
Section 427 in so far as it is material authorizes the Commissioners and certain other officers of a Municipality to enter upon and inspect any place in which any article of food is deposited for the purpose of sale or preparation for sale or to which any article of food intended for human consumption is brought for such purpose and also to inspect the articles of food which may be found in the place inspected
Clause 1 of section 428 confers upon the Commissioners and the officers designated in section 427 power to seize articles of food intended for human consumption if in the course of inspection it appears that the same are unwholesome or unfit for human consumption
Section 429 provides that the articles of food referred to in section 428 which have been seized under that section may with the written consent of the owner or the person in whose possession they are found be ordered to be destroyed
If the consent of the owner or the person in possession is not obtained and the articles are of a perishable nature the officer seizing the same may take them before a Magistrate who may if it appears to him that the articles are unsound or unwholesome or unfit as human food condemn the same or order them to be destroyed
Section 430 in so far as it is material provides that if any Magistrate is satisfied on the application of the Commissioners Health Officer Sanitary Inspector or any other officer authorized by the Commissioner in this behalf that there is just cause to believe that any food which is unsound unwholesome or unfit for human food is in the possession of any person for the 362 purpose of being sold or offered or exposed for sale within the limits of the Municipality for such consumption he may grant a warrant authorizing entry upon the premises of such person and search for and seizure of such articles of food
Section 431 by the 1st subsection in so far as it is material provides that where any article of food seized under section 428 is not destroyed by consent under sub section 1 of section 429 or when an article of food so seized which is perishable is not dealt with under sub section 2 of that section it shall be taken before a Magistrate as soon as may be after such seizure
Sub section 2 provides that if it appears to the Magistrate that any such food is unsound unwholesome or unfit for human food he shall cause the same to be destroyed or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food
It is evident from this resume of the relevant legislative provisions that the municipal authorities are entitled to enter upon and inspect places where articles of food are stored or prepared for sale
If the municipal authorities find that any article of food stored or prepared for sale is unwholesome or unfit for human food they may seize them and destroy the same with the written consent of the owner or person in possession and if such consent is not forthcoming and the articles are perishable destroy them under the orders of a Magistrate
But section 428 is not the only procedure under the Act authorizing seizure of articles
of food which are unwholesome or unfit for human food
The municipal authorities may move a Magistrate for the issue of a warrant for seizure of articles of food which are unsound unwholesome or unfit for human food and under the authority of the warrant such articles may be seized
Articles of food seized under section 4281 which are not disposed of under section 429 are required to be taken before a Magistrate as soon as may be after seizure and under sub section
2 of section 431 the Magistrate is authorized if it appears to him that the articles of food are unsound or unwholesome or unfit for human food to order destruction or disposal thereof Evidently the expression such used in sub s2 of section 431 refers
to the articles of food described in subs 1 of 363 that section and section 4311 only deals with articles seized under section 428
There is no express provision made by the legislature either in section 431 or elsewhere in the Act authorizing destruction  or disposal of articles of food which are seized under a warrant issued under section 430
Counsel for the Municipality contends that the legislature intended that all articles seized whether on inspection under section 428 or under a warrant issued under section 430 must be dealt with under section 431 and the High Court was in error in holding that the authority of the Magistrate to order destruction or disposal of articles of food could be exercised only in respect of articles seized under section 428
But the words used in section 4312 clearly authorize the Magistrate to order destruction or disposal of articles seized under section 428 and not dealt with under section 429 and it is difficult to uphold the plea that the legislature intended even though it did not so expressly provide that the articles seized under a warrant issued under section 430 may also be dealt with under sub section 2 of section 431
Counsel for the Municipality submits that it could not even have been the intention of the legislature that the Magistrate can order seizure of unwholesome food but cannot order its destruction though he may order destruction of unwholesome articles of food seized by the officers of the Municipality
It appears however that a person storing unwholesome articles of food may be prosecuted for infraction of the provisions of section 421 and in the course of or on the conclusion of those proceedings it would certainly be open to the Magistrate having seizin of the complaint to pass an appropriate order under the Code of Criminal Procedure for destruction of the articles seized
In view of this we are not prepared to say that the absence of an express provision relating to the disposal of articles seized under section 430 is not deliberate but even if we are constrained to hold that there is a lacuna in section 431 we do not think that we would be justified contrary to the plain words used by the legislature in attempting to remedy the same by holding that a Magistrate exercising power under sub section
2 of section 431 has authority to 364 order destruction of articles seized in pursuance of a warrant issued under section 430
The argument advanced by counsel for the Municipality that the seizure was in exercise of the powers under section 428 and not under section 430 has in our judgment no force
The report of the Chairman of the Municipality dated March 10 1950 makes it abundantly clear that the search warrant was issued by the Sub Divisional Officer in exercise of his authority under section 430 of the Bengal Municipal Act Any admission by the respondents that the seizure was under section 428 of the Act in proceedings for resisting the order which the Municipality claimed to obtain against them can have no value
Section 428 does not contemplate a seizure of articles of food which are unwholesome under the authority of a Magistrate and section 430 is expressly the provision which authorises a Magistrate to issue a warrant for such seizure
The powers under section 4312 are expressly directed to be exercised by the Magistrate in respect of articles seized under section 428 and there is nothing in the former provision which may justify the view that those powers can also be exercised in respect of articles seized under a warrant issued under section 430
In our opinion the High Court was right in its conclusion
The appeal therefore fails and is dismissed
Appeal dismissed


Summary:
Since 1942 the respondents had been making ex gratia pay ments to their employees appellants in addition to wages and salaries but these were not regular and in 956 no ex gratia payments were made at all
The appellants claimed that their right to be paid bonus had become an implied term of agreement or a condition of service and at any rate it should be paid as customary bonus and relied on the case of The Graham Trading Co India Ltd vs Its Workmen  The evidence showed that though the payments were made from 1942 to 1952 it was made clear every time that the payments were made as ex gratia Held 1 Where payments are made to workers ex gratia and are accepted as such it is not possible to imply a term of service on the basis of an implied agreement to pay bonus
2 that there cannot be a customary payment of bonus between employer and employee where terms of service are governed by contract express or implied except where the bonus may be connected with a festival whether Puja in Bengal or some other equally important festival in any other part of the country
The Graham Trading Co India Ltd vs Its Workmen   explained
3 that for the year 1956 one month s basic wage should be paid as Puja bonus to the subordinate staff as it has become customary and traditional in the respondents  concerns 383