iminal Appeal No 1 of 1955
Appeal from the judgment and order dated October 13 1954 of the former Judicial Commissioner s Court Ajmer in Criminal Reference No 31 of 1954
H J Umrigar and T M Sen for the appellant
The respondents did not appear
December 16
The Judgment of the Court was delivered by HIDAYATULLAH J
This appeal was preferred by the State of Ajmer but after reorganisation the b of States the State of Rajasthan stands substituted for the former State
It was filed against the decision of the Judicial Commissioner of Ajmer who certified the case as fit for appeal to this Court under article 132 of the Constitution
The Ajmer Legislative Assembly enacted the Ajmer Sound Amplifiers Control Act 1952 Ajmer 3 of 1953 hereinafter called the Act which received the assent of the President on March 9 1953
This Act was successfully impugned by the respondents before the learned Judicial Commissioner who held that it was in excess of the powers conferred on the State Legislature under section 21 of the 49 of 1951 and therefore ultra vires the State Legislature
The respondents who were absent at the hearing were prosecuted under section 3 of the Act for breach of the first two conditions of the permit granted to the first respondent to use sound amplifiers on May 15 and 16 1954
These amplifiers it was alleged against them were so tuned as to be audible beyond 30 yards condition No 1 and were placed at a height of more than 6 feet from the ground condition No 2
The second respondent was at the time of the breach operating the sound amplifiers for the Sammelan for which permission was obtained
On a reference under section 432 of the Code of Criminal Procedure the Judicial Commissioner of Ajmer held that the pith and substance of the Act fell within 114 906 Entry No 31 of the Union List and not within Entry No 6 of the State List as was claimed by the State
Under article 2464 of the Constitution Parliament had power to make laws for any Part of the territory of India not included in Part A or B of the First Schedule notwithstanding that such matter was a matter enumerated in the State List
Section 21 of the  enacted  1 Subject to the provisions of this Act the Legislative Assembly of a State may undertake laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List 2 Nothing in subsection  1 shall derogate from the power conferred on Parliament by the Constitution to make laws with respect to any matter for a State or any part thereof Under these provisions the legislative competence of the State Legislature was confined to the two Lists other than the Union List
If therefore the subjectmatter of the Act falls substantially within an Entry in the Union List the Act must be declared to be unconstitutional but it is otherwise if it falls substantially within the other two lists since prima facie there is no question of repugnancy to a central statute or of an  occupied field
The rival Entries considered by the Judicial Commissioner read as follows Entry No 31 of Post and Telegraphs Telephones wire the Union List
lessbroadcasting and other like forms of communication
Entry No 6 of Public health and sanitation hospita the State List
ls and dispensaries
The attention of the learned Judicial Commissioner was apparently not drawn to Entry No 1 of the State List which is to the following effect Entry No 1 of Public orderbut not including the use the State List
of navalmilitary or air forces of the Union in aid of civil power 907 Shri H J Umrigar relied upon the last Entry either alone or in combination with Entry No 6 of the State List and we are of opinion that he was entitled to do so
After the dictum of Lord Selborne in Queen vs Burah 1 oft quoted and applied it must be held as settled that the legislatures in our Country possess plenary powers of legislation
This is so even after the division of legislative powers subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the Lists conferring respectively powers on them
These Entries it has been ruled on many an occasion though meant to be mutually exclusive are sometimes not really so
They occasionally overlap and are to be regarded as enume ratio simplex of broad categories
Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists it is necessary to examine the impugned legislation in its pith and substance and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power is the legislation valid a slight transgression upon a rival List notwithstanding
This was laid down by Gwyer C J in Subramanyam Chettiar vs Muthuswamy Goundan 2 in the following words  It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list touches also on a subject in another list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its pith and substance  or its true nature and character  for the purpose of determining whether it is legislation with respect to matters in this list or in that
 This dictum was expressly approved and applied by the Judicial Committee in Prafulla Kumar Mukherjee 1 2  201
908 vs
Bank of Commerce Ltd Khulna 1 and the same view has been expressed by this Court on more than one occasion
It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given
It becomes therefore necessary to examine closely how the Act is constructed and what it provides
The Act in its preamble expresses the intent as the control of the use  of sound amplifiers
The first section deals with the title the extent the commencement and the interpretation of the Act
It does not unfold its pith and substance
The last two sections provide for penalty for unauthorised use of sound amplifiers and the power of police officers to arrest without arrant
They stand or fall with the constitutionality or otherwise of the second section which contains the essence of the legislation
That section prohibits the use in any place whether public or otherwise of any sound amplifier except at times and places and subject to such conditions as may be allowed by order in writing either generally or in any case or class of cases by a police officer not below the rank of an inspector but it excludes the use in a place other than a public place of a sound amplifier which is a component part of a wireless apparatus duly licensed under any law for the time being in force
In the explanation which is added public place  is defined as a place including a road street or way whether a thoroughfare or not or a landing place to which the public are granted access or have a right to resort or over which they have a right to pass
The gist of the prohibition is the use  of an external sound amplifier not a component part of a wireless apparatus whether in a public place or otherwise without the sanction in writing of the designated authority and in disregard of the conditions imposed on the use thereof
It does not prohibit the use in a place other than a public place of a sound amplifier which is a component part of a wireless apparatus
1 1947 LR 74 IA 23
909 There can be little doubt that the growing nuisance of blaring loud speakers powered by amplifiers of great output needed control and the short question is whether this salutary measure can be said to fall within one or more of the Entries in the State List
It must be admitted that amplifiers are instruments of broadcasting and even of communication and in that view of the matter they fall within Entry 31 of the Union List
The manufacture or the licensing of amplifiers or the control of their ownership or possession including the regulating of the trade in such apparatus is one matter but the control of the use  of such apparatus though legitimately owned and possessed to the detriment of tranquillity health and comfort of others is quite another
It cannot be said that public health does not demand control of the use of such apparatus by day or by night or in the vicinity of hospitals or schools or offices or habited localities
The power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of such user by the disregard of the comfort of and obligation to others emerges as a manifest nuisance to them
Nor is it any valid argument to say that the pith and substance of the Act falls within Entry 31 of the Union List because other loud noises the result of some other instruments etc are not equally controlled and prohibited
The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquillity and thus falls substantially if not wholly within the powers conferred to preserve regulate and promote them and does not so fall within the Entry in the Union List even though the amplifier the use of which is regulated and controlled is an apparatus for broadcasting or communication
As Latham C J pointed out in Bank of New South Wales vs The Commonwealth 1  A power to make laws with respect to  a subjectmatter is a power to make laws which in reality and substance are laws upon the subject matter
It is not 1   186
910 enough that a law should refer to the subject matter or apply to the subject matter for example incometax laws apply to clergymen and to hotel keepers as members of the public but no one would describe an income tax law as being for that reason a law with respect to clergymen or hotel keepers
Building regulations apply to buildings erected for or by banks but such regulations could not properly be described as laws with respect to banks or banking
 On a view of the Act as a whole we think that the substance of the legislation is within the powers conferred by Entry No 6 and conceivably Entry No 1 of the State List and it does not purport to encroach upon the field of Entry No 31 though it incidentally touches upon a matter provided there
The end and purpose of the legislation furnishes the key to connect it with the State List
Our attention was not drawn to any enactment under Entry No 31 of the Union List by which the ownership and possession of amplifiers was burdened with any such regulation or control and there being thus no question of repugnancy or of an occupied field we have no hesitation in holding that the Act is fully covered by the first cited Entry and conceivably the other in the State List
The Judicial Commissioner s order with respect cannot be upheld and it must be set aside
We allow the appeal and reverse the decision and we declare the Act in all its parts to be intra vires the State Legislature
As the matter is four years old we do not order a retrial and we record that the State does not as a result of the reversal of the decision under appeal propose to prosecute the respondents and that a statement to this effect was made before us at the hearing
Appeal allowed


Summary:
Appellant No 1 was found exhibiting and offering for sale tea dust
PW 1 the Food Inspector purchased tea dust in the requisite quantity for test
Appellant No 1 told PW 1 that the shop which was being run by him was a part nership concern of the three brothersappellant No 1 to 3
On receipt of Public Analyst s report prosecution was lanuched against the appellants under section 7 read with section 16 of the 
Before the trial Magistrate the facts regarding sale by appellant no1 of the food article and the same being adul terated as reported by the Public Analyst were not disputed
The appellants however argued that the Public Analyst did not send the report within the period prescribed under r 73 Prevention of Food Adulteration Rules 1955 and the Local Health Authority did not forward the copy of the result of the analysis to the appellants immediately  after institution of the prosecution as envisaged by r 9A
Since there was a delay of nearly a month on that count the trial Magistrate viewed this lapse as fatal to the prosecution
He also held that in the covering letter while sending the report it was not mentioned that the appellants had a right to have analysed the second sample by the Central Food Laboratory in terms of section 132 of the 96 97 Act
He therefore acquitted the appellants
On appeal by the State the High Court reversed the order of acquittal
It convicted the appellants and sen tenced each of them to six months  rigorous imprisonment and to pay a fine of Rs5000 each
Aggrieved the appellants preferred the appeal by special leave to this Court
On consideration of evidence regarding guilt of all the appellants and requirements of section 132 of the and rr
73 and 9A of the Prevention of Food Adulteration Rules 1955 Disposing of the appeal this Court HELD 1
In the instant case there was no basis to sustain the conviction of appellants No 2 and 3
There was no evidence worth the name to conclusively prove their complicity beyond reasonable doubt
The only case set up by the prosecution against these appeliants was that appellant No 1 was alleged to have told the Food Inspector that the shop was being run in partnership by him with his these two brothers
Appellant No 1 alone made the sale in question to the Food Inspector
Burden was on the prosecution to prove the existence of partnership
Even if the Food Inspector is believed that appellant No 1 told him that the shop was being run in partnership that per he was not enough to inculpate the remaining two appellants without further evidence
There is an area of doubt in this sphere and extending the same to appellants No 2 and 3 they are acquitted
100G H 101A B The case of first appellant stood singled out
His conviction was well deserved which should be maintained and the sentence confirmed
However fine was to be reduced to Rs1000
101C 2
The expression immediately  in r 9A of the Preven tion of Food Adulteration Rules 1955 is intended to convey a sense of continuity rather than urgency
What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under section 132 in good and sufficient time before the prosecution commences leading evidence
Non compliance with r 9 A is not fatal
It is a question of prejudice
The word immedi ately  was to be interpreted to convey reasonable despatch and promptitude  intending to convey a sense of continuity rather than urgency
The High Court was right in holding that failure to send instantly a copy of the analysis 98 report to the appellants was of no consequence
100A F Tulsiram vs State of Madhya Pradesh   relied on
On the question of compliance of r 73 in regard to the period of submission of the report by Public Analyst to the Local Health Authority the High Court s conclusion reached by it after recomputing the period that such duty was performed within the prescribed period was a finding of fact and nothing was addressed before this Court in that regard
99G H 100A