R.B. Lal, J.
1. This appeal is directed against the order and judgment of acquittal dated 14-11-1977 passed by Sri K. P. Mathur, Special Judicial Magistrate, Allahabad.
2. Food Inspectors Sukh Mangal Prasad found Ram Kailash, respondent No, 1, selling buffalo milk near Jamuna Bridge, Allahabad on 27-11-1973 at about 11-30 A. M. and took a sample of that milk on payment of price after complying with all the rules. A sample phial of the milk was sent to the Public Analyst for analysis and report He reported that the milk was adulterated being deficient in non-fatty solids content by about 23 per cent. Respon- dent No. T was prosecuted for an ollence, Under Section 7 read with Section 16 of the Prevention of Food: ' Adulteration Act i' (briefly the Act).1 He denied the prosecution allegations and contended that he had: not received a copy of the report of the Public Analyst. He did not produce any defence.
3. The learned' Magistrate came to ' the conclusion that there was no compliance with' the mandatory provisions of Section 20' of the Act and Rule 9(j) of the rules framed under the, Act,. He held ' that the accused could not be convicted on account of the non-observance 'Of the .. aforesaid mandatory provisions and he acquitied the accused.
4. I have heard learned Counsel for the parties and have perused the relevant portions of the record.
5. In criminal revision No. 1050 of 1977, Sumer Chand, v. State,' decided on' 24-1-1980 by Hon'ble Bakshi J., the question whether the provisions of Rule 9(i) are directory or mandatory, was referred to a Division Bench for decision. The Division Bench answered the reference on 4-1-1980 and held that the provisions of Rule 9(1) were only directory. However, in every case it had to be determined if there had been any prejudice to the accused on account of the non-observance of the provisions of this rule. The question of prejudice would be a question of fact in each case to be decided on its peculiar facts and circumstances. On receipt of this opinion of the Division Bench, Hon'ble Bakshi J. decided the revision. The judgment of the revision is reported as (1980) 1 FAC 258. It does not appear that the opinion of the Division Bench was also reported in that journal. Thus, now it stands well settled, so far as this Court is concerned, that the provisions of Rule 9(j) are only directory.
6. In the instant case, the prosecution had examined S. C. Srivastava, Food Clerk (P.W. 2) to prove that copy of the report of the Public Analyst was sent to the accused through post. The only short-coming was that this witness had not brought the relevant papers showing that a copy of the report of the public analyst was sent to the accused. It is really strange that the witness came to depose on that point and did not bring the relevant papers. However, from the failure of the witness to bring the papers it cannot be inferred that the copy of the report was not sent to the accused. If the Magistrate entertained any doubt on this PQint. he should have directed the witness to bring the papers. Without taking this step, the learned Magistrate was not justified in taking the view that there was no compliance with the provisions of Rule 9(j).
7. 'Even though R- 3(i) has been held to be directory, it is open to the accused to show that non-compliance with this rule has caused prejudice to him. In the instara1 case, the accused seems to have concentrated on the point that there was no compliance with, the provisions of. R.,,9(j) and he did not pay any attention to the question of prejudice. The accused should get an opportunity to place material on this aspect of the matter as well.
8. The view of the Magistrate regarding the invalidity of the complaint launched by the Nagar Swasthya. Adhi-kari is also not well founded. He does not seem to have carefully perused the provisions of Section 20 of the Act. Under, this section a prosecution can inter. alia be instituted by a person authprised in this behalf by general or special order, by the Central Government or, the . State Government. Nagar Swasthya Adhi-karis of. the Nagar Mahapalikas have been authorised by the Government of Uttar Pradesh to institute or to give written consent for instituting prosecutions under the Act relating to the Municipal areas within their jurisdiction. Thus, the Nagar Swasthya Adhi-kari can either himself institute prosecution under the Act or give written consent to some other person to institute such prosecution. If the Nagar Swasthya Adhikari himself institutes prosecution and signs the complaint there is no question of giving written consent. It will be ridiculous to say that even in such a case a separate written consent or sanction is required. The Nagar Swasthya Adhikari being the sanctioning authority need not give permission separately to himself; when he himself becomes the complainant by signing the complaint. The question of giving written consent arises only when some other person institutes . prosecution,, The question of application of mind can arise only in connection with the giving of written consent, if the Nagar Swasthya Adhikari himself institutes the prosecution, the question of application of mind in giving written consent would not arise.
9. Before proceeding1 to consider the question.of application bf mind in1 grant- ' ing written consent, the 'Magistrate ' should have determined if a ' person' authorised by the Nagar Swasthya Adhikari himself had launched the prosecution or the ' Nagar Swasthya Adhikari himself had launched, it. He did not Consider this f aspect He observed that' it was not known as to who had signed at the thn6 when the complaint' was instituted. If it was so no occasion > for considering the question of. applica- lion of mind could arise.
10. At the foot of the report of the Public Analyst Dr. Narendra Nath Nagar Swasthaya Adhikari passed the order for prosecution. This was marked Ex. Ka. 4 Food Clerk (P.W.' 2) proved the signa-tute. Under these ' signatures the date 12-2-1974 appears. There is an- ' other signature dated 3rd May, on the left hand side of the signatures of Dr. Narendra Nath, but that was -not proved by the prosecution. The complaint is Ex. Ka. 5 and bears two signatures which are similar to those men-,, tioned above. Under these two signa--tures the same dates as mentioned above, appear, P.W. 2 stated that Dr. Narendra, Nath was transferred in April and thereafter he did not continue as Nagar Swasthaya Adhikari. The endorsement on the back of the complaint shows that it was actually filed in court on 21-5-1974. It appears that Dr. Narendra Nath, who was the Nagar Swasthaya Adhikari, had affixed his signatures on the complaint on 12-2-1974. but the complaint was not actually filed in Court soon thereafter. After the transfer of Dr. Narendra Nath, some one else affixed his signature on the complaint on 3rd May and thereafter it was filed in court on 21-5-1974. The signature bearing the date 3rd May, should have been proved by the prosecution but, strangely enough, this was not done. It can be said that in this respect the' counsel for the complainant failed in his duty. There were two signatures on the complaint and it should have been shown how those two signatures came to be made and who was the other person who had affixed his signature. If the prosecution had failed in this respect, the Magistrate should have made this enquiry, as it was necessary to bring all the relevant facts on the record. The Magistrate is expected to follow the evidence adduced before him intelligibly and to seek clarifications wherever they appear necessary, without caving as to Vvhich party would benefit by the clarification, The purpose of seeking clarification is only to bring relevant material on the record so that nothing may remain obscure or vague and there maybe a proper adjudication on questions of fact and law.
11. In view of what has been said above, the finding of the Magistrate that there was no application of mind and no compliance with the provisions of Section 26 of the Act, cannot be sustained.
12. The grounds relied upon by the Learned Magistrate are not sustainable and, therefore, the orcter of acquittal cannot be upheld and deserves to be set aside. Thin can should go back for a fresh trial i the light of the observations made in the body of this judgment.
13. In the result, the appeal is allowed the Judgment and order of acquittal dated 14-11-1977 are set aside. The case is sent back to the learned Chief Judicial Magistrate, Allahabad tor trial afresh according to law. He may try the case himself or make it over to some Magistrate other than Sri K. P. Mattult, competent to try the case. The record of this case shall be gent back to the lower court at the earliest