(1) Criminal Appeal No. 1159 of 1957 has been preferred by the State of Bombay against the order pased by the learned Sessions Judge of Baroda in Criminal Appeal No. 33 of 1957 on his file.
(2) The case of the prosecution was that the respondent, who was t he accused in the trial Court, owned a milk shop within the Municipal limits of the City of Baroda. The Food Inspector of the Baroda Municipality visited the milk shop of the accused on 9-7-1956 at about 8-30 a.m and purchased 1 1/2 lb. of milk for analysis, after giving him the necessary notice in that behalf, as required by the provisions of the Prevention of Food Adulteration Act 1954. The quantity of the milk purchased by the Inspector was filled in three bottles in equal parts, and the bottles were duly closed, saled and labelled in the presence of some panchas. One bottle was given into the possession of the accused and one was sent to the public analyst for analysis of its contents. On 30-7-1956 the public analyst sent a report that the milk was adulterated and it contained 2.7 per cent. fat and 4.1 S.N.F. The Food Inspector thereafter filed the complaint, out of which the present proceedings arise, against the accused, after taking the necessary consent in writing from the Chief Officer, who was empowered by the Municipality in that behalf. The Chief Officer accorded consent for instituting the prosecution. The complaint was that the accused had committed an offence under S. 16 read with S. 7 of the Preventin of Food Adulteration Act.
(3) The learned Special Magistrate, First Class was inclined to hold that the accused was guilty of the offence under S. 16(1)(a) read with S. 7 of the Prevention of Food Adulteration Act, 1954, and accordingly convicted and sentenced him to pay a fine of Rs. 300, in default, to three months' rigorous imprisonment under S. 245, Criminal Procedure Code.
(4) Thereafter the accused preferred Criminal Appeal No. 33 of 1957 in the Court of the Sessions Judge of Baroda. The learned Sessions Judge was of the view that the Food Inspector was not competent to institute the prosecution under S. 20 of the Act, and held that the prosecution instituted against the accused was without jurisdiction, and accordingly set aside the order of conviction and sentence, and ordered the accused tobe discharged. There was no order of acquittal passed by the learned Sessions Judge.
(5) Against the order of the learned Sessions Judge, the State preferred the present appeal No. 1159 of 1957. As there is no order of acqittal passed by the learned Sessions Judge, the appeal which has been preferred by the State would not be competent under S. 417 of the Criminal Procedure Code. We would, therefore, convert this appeal into a Criminal Revision Application, and consider the point has been raised in it on behalf of the State.
(6) The learned Sessions Judge stated that in view of the provisions of S. 20 of the Prevention of Food Adulteration Act, 1954, it ws not competent to the Food Inspector to institute the prosecution against the accused. He was of the view that the Food Inspector was not an authority, nor an officer mentioned in that section, competent by himself to institute the prosecution. Further, he held that the clause 'or with the written consent of' qualified only the words that immeditely followed, namely, 'the State Government', and therefore it was only with the written consent of the State Government that a prosecution could be instituted by any person under provisions of S. 20.
(7) In order to appreciate the contention raised on behalf of the State in this revisional Application, it would be necessary to set out the terms of S. 20 of the Act, Section 20(1) reads as follows:
'No prosecution for an offence under this Act shall be instituted except by, or with the wriiten consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or local authority.'
The construction whch has been put by the learned Sessions, Judge obviously ignores the two commas, which appear in the section before and after the clause 'or with the written consent of.' The plaint grammatical meaning of this section is that the written cosent ma be of the State Government, or a local authority, or a person authorised in that behalf by the State Government or local authority. In our view, under this section, the prosecution can be instituted (1) by the State Government, (2) by a local authority, (3) by a person authorised in that behalf by the State Government, or (4) by a person similarly authorised by a local authority. Further, a proecution can also be instituted with the consent of any of these four authorities.
(8) In the present case, the complainant, the Food Inspector relies upon the written consent of the Chief Officer. By a resolution No. 222 dated 7-5-1956, the Baroda Borough Municipality authorised the Chief Officer and the Health Officer, as per S. 20 of the Prevention of Food, Adulteration Act 1954, to allow them to give permission to file complaints for the commission of offences under the said Act. In view of this authority vested in the Chief Officer, the Chief Officer accorded sanction for prosecuting the present accused, by his letter dated 13-10-1956. In that letter, it was stated that, under authority vested in the Chief Officer of the Baroda Borough Municipality by Resolution No. 222 of 7-5-1956 of the Baroda Municipal Board, sanction was given for instituting prosecution against the accused for contravening the provisions of Government of India's Prevention of Food Adulteration Ac, 1954. The name of the accused, his address, and the date of the offence were mentioned. It was further stated in the letter that the sanction was accorded after going through the Milk Analysis Report and other pertinent documents and the nature of offence committed by the accused, as required by S. 20 of the Prevention of Food Adulteration Act, 1954. Therefore, if this sanction were a written consent, as required by S. 20, there would not be any difficulty in the way of the Food Inspector instituting the present prosecution against the accused. We have already held that the written consent may be given, not only by the State, but also by the local authority, or by a person duly authorised either by the State or by the local authority in that behalf. In this case, the Chief Officer was a person who had been duly authorised by his local authority to accord sanction,and in the exercise of this authority vested in him, he gave the sanction for the prosecution of the present accused.
(9) But a further question arises whether the written consent or the sanction as it is described by the Chief Officer is a proper written consent authorising the Food Inspector to institute the present prosecution. Reading the provisions of section 20, it seems to us tha the object of the legislature in enacting that section is that the prosecution in regard to the offencs contemplated by the Act has got to e insituted by the persons or authorities mentioned and referred to in that section. The prosecutor must either be one of the four autorities mentioned above, or must be any person who must have in his favour a sanction or written consent from any one of those four authorities. A written sanction of the nature which we have in the present cae, or a written consent, without mentioning the person to whom such consent or sanction is given, would, in our view, not be a sufficient compliance with the terms of the sanction. The learned Additional Assistant Government Pleader says that it is the normal rule that a Criminal Court can be in motion by any subject in the country. That may be true in regard to the offences, which are regarded as offences under the common law. But where, as here, certain special offences have been created in a special Act, and where that special Act itself makes a further provision as to who should be the prosecutors in regard to the offences specified in that Act, then, in our view, a prosecution which does not conform to the provisions of that Act would be obviously without jurisdiction, and it is not open to the complainant to say that the complaint had been filed in the exerecise o his right under the common law. It is not difficult to conceive of the complicantions that might arise, if the written consent were not to specify and name the person as the prosecutor duly authorised to institute the prosecution under S. 20. The clause 'or with the written consent of' necessarily indicates that, although the local authority, or the person duly authorised by the local authority in that behalf, can itself or himself institute the prosecution, still, it is within the power of local authority, or the person authorised in tha behalf by the local authority, to accord the requisite consent to any other name person to institute the prosecution. When a prosecution is instituted with the consent of the local authority, or with the consent of the person authorised by the local authority to give such consent, the local authority, or such person, still retains some control over the prosecution, which has been instituted at its or his instance. If the consent were not to name the person who is to be the prosecutor, and if the prosecution were undertaken, or instituted by any other person who is not named in that consent, then, it may well be that the local authority, or the person who has accorded such consent under the provision of Section 20, may not thereafter retain any control over such prosecution. We, therefore, think that a valid written consent under Section 20 would be a written consent which names a particular person as the person competent to institute the prosecution.
(10) The learned Additional Assistant Government Pleader says that this consent must have been obviously obtained by the Food Inspector upon making the necessary application to the Chief Officer. It may be that such an application might have been made by him, and the Chief Officer might have granted that application by issuing the written consent or the sanction which is now upon the record; but so far as the record of this case goes, thre is nothing to show that any such application was made. It was incumbent upon the prosecution to show that the institution was valid by producing the application and the order thereon, whic according to the learned Additional Assistant Government Pleader show that the written consent, which is now upon the record, was, in fact, given in favour of the person who has institution the prosecution. In the absence of any such evidence we must hold that the written consent was not proper.
(11)Then, the learned Additional Assistant Government Pleader drew our attention to what he calls the analogous provisions of Section 197 of the Criminal Procedure Code, and he relied upn a decision of our own Court, which is reported in Desaibhai Khushalbhai v. Emperor AIR 1938 Bom 50. He also relied upon another decision which is reported in Rudra Dat v. Emperor : AIR1933All543 . We do not think we can derive any assistance in construing the present section from the cases decided under Section 197, Criminal Procedure Code. In the case which is reported in AIR 1938 Bom 50, the argument tha was raised before this Court was that the sanction, which was relied upon in that case by the prosecution, had not been addressed to any Court or Officer, and the answer that was given by this Court to that argument was that there was nothing in the provisions of section 197 which necessitated the sanction being addressed either to the Court or to the officer. Reference was also made to sub-section (2) of Section 197, which stated that
'the Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.'
While construing this sub-section, their Lordships stated that it was not necessary that orders under the said sub-section should be passed in every case. Their Lordships in that case only considered whether it was necessary for the Government issuing the sanction to mention the Court to which the sanction was to be addressed, and obviously regard being had to the provisions of sub-section (1) of Section 197, there was nothng in those provisions which required the Government issuing the saction to address its sanction to any Court or officer in particular. Besides, sub-section (1) of Section 197 of Criminal Procedure Code speaks of any Court not taking cognizance of the offence mentioned therein except with the previous sanction of the Government concerned. While the provisions of Section 20 of the Prevention of Food Adulteration Act, the wording of which is different from that of section 197, Criminal Procedure Code, speaks of the institution of the prosecution except by, or with the consent, of the authorities or the person mentioned in that saction.
(12) Then, the case reported in : AIR1933All543 , was also a case which arose under Section 197 of the Criminal Procedure Code. Therefore, the sanction was conveyed in a letter addressed to the Deputy Commissioner of Almora, and the Deputy Commissioner apparently had an inquiry made by the Tahsildar, and the complaint was filed in the Court by the Assistant Inspector of Schools. Then, an argument was advanced in the Court tha the sanction was addressed to the Deputy Commissioner, and he should have filed a complaint. This argument was met by the Court, which observed that there was no provision in Section 197 of the Criminal Procedre Code for a sanction to be addressed to any particular officer. A sanction s an order directing the prosecution of a certain person, and in the ordinary way that order is conveyed to the authorities, who are responsible for initiating prosecutions in the locality in question. In the present case, however, the authorities responsible for initiating or instituting the prosecution are mentioned and referred to in Section 20 of the Act itself. It is only the particular authorities, or person mentioned in Section 20 of the Prevention of Food Adulteration Act, who can, either by themselves institute the prosecution, or who can see that such prosecutions are authorised by the several authorities mentioned in that section to institute prosecution, must have derived their authority in their favour in the form of a written consent from either the State Government, the local authority, or the person duly authorised in that behalf. As we have already stated, the present written consent does not mention the name of the Food Inspector as the person competent to institute the prosecution and therefore we must hold ta the institution of the prosecution was without jurisdiction and that the order of the learned Sessions Judge setting aside the order of conviction and sentence passed by the learned Magistrate is correct. Although, therefore, we do not agree with the view taken by the learned Sessions Judge on the construction of Section 20, we confirm the final order as passed by him..
(13) In view of our opinion expressed on the construction of section 20 of the Prevention of Food Adulteration act, the rules issued in Criminal Revision Applications Nos. 1291, 1292 and 1293 of 1957 are discharged.
(14) Stay is vacated.
(15) Rules discharged.