Skip to content


The State of Maharashtra Vs. NizamuddIn Hazi Mohamedkasam - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 470 of 1977
Judge
Reported in(1978)80BOMLR407; 1978MhLJ775
AppellantThe State of Maharashtra
RespondentNizamuddIn Hazi Mohamedkasam
Excerpt:
.....of drink on the basis of report of public analyst that it contained prohibited colour--report of central food laboratory, calcutta showed another type of adulteration namely, saccharin beyond the prescribed limit--whether sanction of prosecution on basis of report of public analyst could be utilised for prosecution on basis of report of central food laboratory--duty of magistrate to return complaint to the complainant and not to discharge the accused.;section 20 of the prevention of food adulteration act, 1954, inter alia provides that no prosecution in respect of an offence shall be instituted except with the written consent of the requisite authority.;when the report of director of central food laboratory, calcutta, is different from the report of public analyst and a different..........framed the accused tendered the sample which was with him and asked for the same being sent to the central food laboratory at calcutta which was accordingly done. the report of the director of that laboratory shows that the sample which that laboratory analysed contained saccharin beyond the prescribed limit. the two reports viz. the report of the public analyst and the report of the director of central food laboratory at calcutta are mutually exclusive and have no common results of analysis at all. the public analyst's report does not disclose any presence of saccharin in the drinks; the report of the central food laboratory does not disclose the presence of prohibited colour. considering the inconsistency between the two reports, the learned magistrate felt obliged to discharge accused.....
Judgment:

Jahagirdar, J.

1. By this petition the State seeks to challenge the order of discharge passed by the learned Metropolitan Magistrate of 28th Court, Bombay, in Case No. 5/S of 1976. In this case the opponent, who will hereinafter be referred to as the accused, was sought to be prosecuted for an offence punishable under Section 16 of the Prevention of Food Adulteration Act, read with Section 7(1) of the said Act and Rule 23 of the Rules framed thereunder. According to the averments in the complaint filed before the Magistrate, on October 7, 1974 samples were taken of several bottled drinks which were being sold by the accused who was the proprietor of a soda factory. One of the drinks was named 'Real Falsa'. A sample of this drink was sent to the public analyst who reported that the sample contained certain amount of prohibited colour. Before the charge was framed the accused tendered the sample which was with him and asked for the same being sent to the Central Food Laboratory at Calcutta which was accordingly done. The report of the Director of that Laboratory shows that the sample which that Laboratory analysed contained saccharin beyond the prescribed limit. The two reports viz. the report of the public analyst and the report of the Director of Central Food Laboratory at Calcutta are mutually exclusive and have no common results of analysis at all. The public analyst's report does not disclose any presence of saccharin in the drinks; the report of the Central Food Laboratory does not disclose the presence of prohibited colour. Considering the inconsistency between the two reports, the learned Magistrate felt obliged to discharge accused No. 1 which he did by his judgment and order dated April 6, 1977.

2. The State has sought to challenge this order of discharge. Mr. Patil, the learned public prosecutor appearing in support of the petition, has criticised the approach of the learned Magistrate and has contended that it was not open to the Magistrate to discharge the accused in the instant case when both the reports showed that the sample seized from him was adulterated in one or another manner. Neither of the report says that the sample is not adulterated. Under Section 13 of the Act the report of the Central Food Laboratory supersedes the report given by the public analyst, and if this is so, says Mr. Patil, the learned Magistrate ought to have framed a charge in the light of the report submitted by the Central Food Laboratory. The learned trial Magistrate, it is complained, had practically tried the case even without framing the charge and the order of discharge which has been passed is almost in the nature of an order of acquittal.

3. Though there is considerable justification in the complaint of Mr. Patil that it was not open to the learned Magistrate to order the discharge of the accused because of the inconsistency between the two reports, the order of discharge is sustainable, as has been pointed out by Mr. Baadkar appearing on behalf of the accused, on other grounds. Mr. Baadkar points out that Section 20 of the Act which is mandatory prohibits the institution of any prosecution in respect of an offence without the consent of the authority mentioned in that section. According to Mr. Baadkar the sanction that was accorded in the instant case was for the prosecution of the accused in respect of an offence which showed that the sample sold by him contained prohibited colour. This sanction could not be automatically extended to the prosecution for an offence which consists of the addition of saccharin beyond the prohibited limit. For reasons which I now proceed to give, I have to accept the contentions of Mr. Baadkar and uphold that the prosecution could not have been proceeded with in the absence of a fresh sanction in the light of the findings of the Central Food Laboratory.

4. Section 20 of the Prevention of Food Adulteration Act as it stood at the time of the institution of this prosecution is as follows:

20. (1) No prosecution for an offence under this Act shall be instituted except by, or with, the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority

Rest of the section need not be taken note of for the purpose of disposal of this petition. Sub-section (1) as reproduced above, consists of two parts. The first part speaks of a written consent without which no prosecution for an offence under that Act shall be instituted. The second part of the sub section mentions the authorities who can give such written consent. These authorities are the Central Government or the State Government or a local authority. A person authorised by any one of the aforesaid three authorities can also give consent. The authorisation of a person for giving consent which is to be made by one or the other three authorities mentioned therein need not be of a specific person. That authorisation may be by a general order by describing the class of persons who can give consent. While so authorising a person for the purpose of giving consent under Sub-section (1) of Section 20 there is no obligation cast on the authority to apply its mind to the facts of the case.

5. In Dhian Singh v. Saharanpur Municipality : 1970CriLJ492 , the complaint had been filed by the food inspector of the Municipal Board, Saharanpur. The accused was convicted in the trial Court and this conviction was upheld by the appellate Court. Thereafter a review was sought to be obtained of the order of conviction by contending that the food inspector was not properly authorised by the Municipal Board. Though the Supreme Court did not countenance the raising of such a point for the first time, it proceeded to discuss the relevant question in para. 5 of the judgment. The Supreme Court pointed out that the question of applying one's mind to the facts of the case did not arise as the authority to be conferred under Section 20(1) can be conferred long before a particular offence has taken place. It is now also well settled that the person who is authorised by one or the other of the three authorities mentioned -in Sub-section (1) of Section 20 can himself give consent and the complaint may be filed by any person with the consent of the person so authorised. This point is no longer in dispute and it is not necessary to discuss any authorities in that regard. The case of Corporation of Calcutta v. Md. Omer Ali : AIR1977SC912 , is the latest authority on this question.

6. The question which Mr. Baadkar has raised is regarding the application of the mind of the consenting authority to the facts of the case before a prosecution is instituted. The consent envisaged under Section 20 is almost in the nature of a sanction and obviously, says Mr. Baadkar, a sanction cannot be accorded unless the facts of the case are disclosed to the sanctioning authority. In the instant case the facts as disclosed to the sanctioning authority and on the basis of which the sanction was given were the adulteration of the sample seized as shown by the report of the public analyst. The adulteration which is thus shown will be an adulteration of a particular type mentioned in one of the clauses in Section 2 of the Act. After the report of the Director of the Central Food Laboratory was received, another type of the adulteration was disclosed. Therefore, the offence with which the accused would be charged on the basis of the report of the Central Food Laboratory will be different from the offence with which he would have been charged on the basis of the report of the public analyst. When Section 20 says that no prosecution in respect of an offence shall be instituted without the consent in writing of the requisite authority, in the instant case a prosecution for the different offence which now emerges from the report of the Director of the Central Food Laboratory could not be launched; it will naturally be incompetent in the absence of fresh consent given under Section 20(1) of the Act. The nature of adulteration is an important question which must go into the formation of the mind of the consenting authority. What was before the consenting authority in the instant case was the report of the public analyst and the contents of that report along with the facts placed went into the formation of the opinion which opinion may not be the same if the report of the Central Food Laboratory discloses a different kind of offence, though under the same Act. In my opinion, where different ingredients of the offence are disclosed by the report of the Central Food Laboratory, fresh application of mind to the new facts will be necessary before a consent could be given.

7. In any case if, as is conceded, the report of the Central Food Laboratory supersedes the report of the public analyst, a charge in terms of that report will have to be framed by the learned Magistrate. He cannot do so unless a sanction for the offence with which now the accused would be charged is given by the consenting authority. Since such a sanction has not been given for the institution of a prosecution for the offence now disclosed by the report of the Central Food Laboratory, the Magistrate could not legally proceed with this case.

8. In State of Bombay v. Parshottam Kanaiyalal : [1961]1SCR458 , the question that fell for determination by the Supreme Court was whether the consent could be given by an authorised person. I have already mentioned above that this is in law so and has been held to be so by the latest judgment of the Supreme Court referred to above. In para. 13 of the said judgment, however, there are certain observations which lend support to the view I have taken. Pointing out that Section 20(1) of the Act did not prescribe that the complainant shall be named in the written consent either explicitly or by necessary implication, the Supreme Court proceeded to observe as follows (p. 3):

.To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable, but the further implication that the complainant must be named in the written consent does not, in our opinion, follow.

(Italics supplied).

In the same paragraph the Supreme Court proceeded to point out that the subsection itself contains an indication that the written consent is for the launching of a specified prosecution and it is further mentioned that the authority has to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous. In my opinion, these words are a sufficient authority to hold that a sanction must be given for the prosecution in respect of a particular offence committed by a particular person and if the sanction is given for the prosecution in respect of one offence, prosecution in respect of another offence cannot be instituted. The same is the view taken by a single Judge of the Rajasthan High Court in the case of Mahadeo v. State of Rajasthan , and with great respect I agree with the said view.

9. In an unreported judgment of Mr. Justice S.K. Desai, K.B. Mohamad v. G.D. Deo (1973) Criminal Revision Application No. 507 of 1972 , Mr. Justice S.K. Desai was dealing with the question whether the sanction given for the prosecution of an offence in respect of 'baby chocolates' could be valid if the prosecution was for an offence in respect of 'baby food'. The answer given by him was in the negative and also that sanction in respect of one offence cannot be utilised for prosecution in respect of another offence.

10. If the Magistrate finds that there is no sanction for prosecution of the particular offence before him, the course open to him is not to pass an order of discharge but to return the complaint to the complainant. In Nagraj v. State of Mysore : 1964CriLJ161 , it has been held that if the Court at any stage of the proceedings comes to the conclusion that the prosecution could not have been instituted without the sanction of a particular authority and that sanction is not shown to have been given, then the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint be rejected.

11. In the result, I partly allow this application and set aside the order of discharge passed by the learned Magistrate in Case No. 5/S of 1976. I direct that the proceedings in the above-mentioned case be dropped and the complaint be returned to the complainant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //