V.D. Misra, J.
(1) Mr. S. S. Dhanoa, a Member of the Indian Administrative Service was appointed as General Manager of Cooperative Store Limited (Super Bazar). New Delhi (hereinafter referred to as 'Super Baar'). Notification No. 27-942/72-Estt-1, was issued by the Government of India. Ministry of Agriculture, on April 23, 1972 placing the services of Mr. Dhanoa at the disposal of Super Bazar with effect from the forenoon of April 7, 1972 when Mr. Dhanoa took over charge as its General Manager. The Managing Committee of the Super Bazar requested the Government of India to extend his term for a further period of one year with effect from April 7, 1973 which was duly extended.
(2) The Super Bazar is a Cooperative Society registered under the Bombay Cooperative Societies Act, 1954 as extended to Delhi. The Central Government holds more than 95 per cent shares of the total share holdings of the Stores. The Super Bazar has branches at various places in Delhi. It sells various articles, including honey, to the public.
(3) Food Inspector Madan Mohan Gupta took a sample of honey for analysis from the I.N.A. Colony Branch of the Super Bazar on October 4, 1973. The report of the Public Analyst shows that the honey was adulterated. On April 5, 1974 the Municipal Corporation of Delhi filed a complaint dated March 30, 1974 under the provisions of the Food Adulteration Act, 1954 against various persons including Mr. Dhanoa. It was alleged that Mr. Dhanoa 'is the General Manager of M/s. Super Bazar, Connaught Place, New Delhi, and actually participates in the working of the Super Bazar and as such is in charge of and responsible for, the conduct of the business of M/s. Super Bazar, at the time of commission of the offence.' Mr. Dhanoa was duly summoned as an accused. We moved an application under section 197 of the Code of Criminal Procedure alleging that he was acting in the discharge of his official duties as a public servant and the Court could not take cognizance of the alleged offence against him without the previous sanction. of the Central Government, since he was not removable from office except by the sanction or the order of the President of India. The trial Magistrate by his order dated October 9, 1974 dismissed the application. Mr, Dhanoa has filed the present petition challenging the magistrate's order.
(4) Mrs. Shyamla Pappu, learned counsel for the petitioner, submits that the petitioner is a public servant in terms of section 21 of the Indian Penal Code. As a government servant he had to proceed on deputation under the orders of the Government and he was, thereforee. acting in the discharge of his official duties when the offence is alleged to have been committed by him. The contention of Mr. Marwaha, learned counsel for the respondents, is that there is nothing on record to show that the petitioner was at the time of commission of the offence employed in connection with the affairs of the Union or of the State. He also contends that the act of selling adulterated article of Food cannot be said to have been performed in the discharge of his official duties.
(5) Section 21 of the Indian Penal Code defines the words 'public servant'. Clause twelfth of this section shows that Mr. Dhanoa is a public servant being in the service of the Government.
(6) Now the relevant provisions of section 197 of the Code may be noted which read thus :
'197.(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or. as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.'
The questions which fall for decision are (i) whether the petitioner was acting or purporting to act in the discharge of his official duty at the time when the offence is alleged to have been committed, and (ii) whether the petitioner was at the time of commission of the offence employed, in connection with the affairs of the Union..
(7) I will take up the second question first. It is true that the petitioner while working with the Super Bazar was on 'foreign service' as defined by fundamental rule 9(7) of the Fundamental Rules of the Government of India, but then can he be said to be employed in connection with the affairs of the Union. Mrs. Pappu refers to the 'explanation' to the definition of the word 'government' in rule 2 of the All-India Services (Conduct) Rules, 1968 and to rule 2 of the All-India Services (Discipline & Appeal) Rules- 1969. The Explanationn in the former rule is in the following terms :
'EXPLANATION.-Amember of the Service whose Services are placed at the disposal of a company, corporation or other organisation or a local authority by the Central Government or the Government of a State shall, for the purposes of these rules, be deemed to be a member of the Service serving in connection with the affairs of the Union or in connection with the affairs of that State, as the case may be, notwithstanding that his salary is drawn from the sources other than the Consolidated Fund of India or the Consolidated Fund of that State.'
The Explanationn to the latter rule reads thus :
'EXPLANATION.-Amember of the Service whose services are placed at the disposal of any company, corporation, organisation or any local authority by the Centra' Government or the Government of a State shall, for the purpose of this clause, be deemed to be a member of the Service serving in connection with the affairs of the Union or the affairs of that State, as the case may be, notwithstanding that his salary is drawn from sources other than the Consolidated Fund of the Union or of that State.'
It will be noticed that these Explanationns are 'for the purpose' of the rules only. This definition cannot, thereforee, be extended to any other rule or law. On the other hand, the deeming provisions contained in these Explanationns suggest that but for these previsions a member of the Service, whose services are placed at the disposal of a company etc., cannot be said to be serving in connection with the affairs of the Union or the State. Help is sought from an unreported judgment of this Court in Civil Revision No. 217 of 1974 (Delhi Development Authority v. Sh- Lal Chand God), decided on April 21, 1975(1) where the Delhi Development Authority was held to be a State within the meaning of section 123 of the Indian Evidence Act by applying the tests laid down by the Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors., : (1968)ILLJ257SC . I am afraid it has no relevance to the question under discussion.
(8) There is no material before me 'to show that running of the Super Bazar is one of affairs of the Union. It, thereforee, follows that the petitioner was not employed in connection with the affairs of the Union at the time he was working as General Manager of the Super Bazar and so no sanction, as envisaged under section 197, was necessary.'
(9) The next question which falls for consideration is whether the petitioner can be said to have committed the offence of selling adulterated honey while acting or purporting to act in the discharge of his official duty. The law relating to the circumstances under which a person can be said to be acting or purporting to act in the discharge of his official duty has by now been well-settled but the difficulty arises in applying the same to the particular facts of a case. I need not go through all the decision and I will only refer to four Supreme Court decisions. Venkatarama Ayyar, J., speaking for the Supreme Court in Amrik Singh v. The State of Pepsu, : 1955CriLJ865 , after referring to Hori Ram Singh v. Emperor, `(4), H.H.B. Gill v. The King, (1948) L.R. 75 IndAp 41, Albert West Meads v. The King, (1948) L.R. 75 IndAp 185, Phanindra Chandra v. The King, (1949) L.R. 76 IndAp 10. and R W. Malhams v. State of West Bengal, : 1SCR216 summarise the result thus :
'It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defense on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution-'
This question again came up for consideration before the Supreme Court in K. Satwant Singh v. The State of Punjab, : 2SCR89 . Whereas Amrik Singh's case(3) (supra) was decided by a Bench of three Judges, Satwant Singh's (9) case was decided by a Bench of five Judges. After reviewing the existing case law, it was observed thus :
'It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe. an offence punishable under section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences ............ ... ........................ The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
This matter again came up before the Supreme Court in Baijnath v. State of Madhya Pradesh, : 1966CriLJ179 . After once more reviewing the existing case law, it was observed thus :
'It is not every offence committed by a public servant that requires sanction for prosecution under S. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable ............................................. the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence.'
Once again in Pukhraj v. State of Rajasthan and Another, : 1973CriLJ1795 , the Supreme Court observed thus :
'. .the mere fact that the accused proposes to raise a defense of the Act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in Matajog Dobey v. H. C. Bhari (supra). In Bhagwan Prasad Srivastava v. N. P. Misra (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197, Criminal Procedure Code .'
(10) The question whether a public servant selling an adulterated article of food can claim to be doing so in the discharge of his official duty came up for decision before a Single Judge of the Andhra Pradesh High Court in M.C.S. Reddy v. The State (Food Inspector) Cuddapah Municipality, . It was held that the petitioner who was a public servant and was working as Manager Integrated Milk Project, Milk Cooling Centre, Mydukur, could be prosecuted without obtaining any sanction under section 197 of the Code of Criminal Procedure since he could not claim that he was entitled to sell adulterated milk in the performance of his duties as Manager of the Milk Project.
(11) I am in respectful agreement with the decision of Andhra Pradesh High Court. 'The Prevention of Food Adulteration Act prohibits the sale of adulterated article of Food and a public servant cannot reasonably claim to sell the same in the performance of his duty.'
(12) The petition, thereforee, fails and is dismissed.