1. In my opinion no sufficient ground exists for interfering in this case. The facts are these:
2. Upon an order in writing made by the Additional Medical Officer of Health, Agra, the applicant Girraj Kishore was prosecuted under S. 10, U. P. Prevention of Adulteration Act, 6 of 1912, for refusing to sell sample of ghee for analysis. When the matter finally came up before the Magistrate on 28-12-1951 the Magistrate upon an application of the Municipal Board of Agra made under S. 248,Criminal P. C. allowed the complaint to be with drawn because the complaint was not founded upon proper authority and the Magistrate acquitted the accused.
By a resolution dated 19-9-1950, the Municipal Board of Agra authorised the Medical Officer of Health under Section 12, U. P. Prevention of Adulteration Act as the person who can make the order for prosecution under the Act. By a subsequent resolution dated 30-8-1951 the Municipal Board of Agra in-eluded the Additional Medical Officer of Health within the term of Medical Officer of Health and authorised both these functionaries under Section 12, U. P. Prevention of Adulteration Act to launch pro- cutions.
Subsequently the Medical Officer of Health gave the necessary order under Section 12 of the Act upon which a subsequent complaint was filed on behalf of the Municipal Board of Agra and the applicant was convicted under Section 12 of the Act and sentenced to a fine of Rs. 30/-. He preferred a revision before the Sessions Judge on the ground that his conviction was bad in law and that upon the principle of autre fois acquit contained in Section 403, Criminal P. C., the conviction could not be maintained. The point is covered by authority.
Section 12, U. P. Prevention of Adulteration Act of 1912 lays down that no prosecution under this Act shall be instituted without the order or consent in writing of the local authority, or, in the case of a municipal board or a cantonment authority, of person or persons authorised in this behalf by the said municipal board or cantonment authority. If the first complaint was instituted upon an order or consent in writing of the Additional Medical Officer of Health on whom the powers under Section 12 of the Act had not been conferred by the Board the first complaint was a nullity and no prosecution could be founded upon it.
As has been held by the Calcutta High Court in Banerjee v. Bepin Behary Ghosh, AIR 1926 Cal 691 (A) a verdict of acquittal is immune from challenge, but it is only when an accused has been 'tried' and acquitted of an offence that the immunity arises. In this Calcutta decision, a decision of this Court, Emperor v. Umer Uddin, ILR 31 All 317 (B) was referred to.
A similar question came up for consideration before their Lordships of the Privy Council in Yusofalli Mulla v. The King and the argument which had been adopted by the counsel for the applicant in the present case was advanced there as- well, namely that since the Magistrate did not adjudicate specifically on the validity of the sanction, it cannot be said that the sanction was bad in law and the prosecution incompetent. This argument in my opinion is not well founded because the Magistrate's order clearly indicates that there was no valid sanction and it was on that ground that the withdrawal of the first complaint was allowed under the Act.
3. It has next been contended that failure to obtain a sanction at the most prevented the valid institution of a prosecution, but did not affect the competency of the court to hear and determine a prosecution which in fact was brought before it by an agent of the Municipal Board, namely, the Additional Medical Officer of Health. Under Section 12, U. P. Prevention of Adulteration Act of 1912 a Court cannot be competent to hear and determine a prosecution unless proper sanction is given.
The learned Magistrate was no doubt competent to decide whether he had jurisdiction to entertainthe prosecution and for that purpose to determine whether a valid sanction had been given. But as soon as he decided that no valid sanction had been given, the Court became incompetent to proceed with the matter. It was upon that view that the first complaint was allowed to be withdrawn and the accused acquitted under Section 248, Criminal P. C. That section provides that if a complainant, at any time before a final order is passed, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and thereupon acquit the accused.
Their Lordships of the Privy Council approved of the view expressed by the Federal Court in Basdeo Agrawalla v. Emperor , that a prosecution launched without a valid sanction is nullity. Consequently if the first prosecution was upon an invalid sanction the prosecution was a nullity and an order of acquittal passed under Section 248 of the Code when the complaint was allowed to be withdrawn could not be a bar to a subsequent complaint founded upon the same allegations and instituted upon proper sanction having been obtained under the provisions of law. In my opinion, therefore, Section 403 of the Act was no bar to the subsequent prosecution.
4. There is no force in this revision petition andit is accordingly dismissed.