1. This appeal arises out of a prosecution instituted under the provisions of the Prevention of Food Adulteration Act (Act 37 of 1954). The Food Inspector of the Trivandrum Corporation started the prosecution by filing a complaint against the two accused who are the respondents in this appeal. The prosecution case is that the shop, bearing TC No. 698 at Karamana within the Corporation limits, belongs to the first accused and the main business carried on in that shop is the sale of oils and other food stuffs. The second accused is said to be an employee under the first accused, and it was thesecond accused who was in charge of the sales conducted in the shop. The allegation against the accused is that they used to sell adulterated oil in the shop.
The second accused is stated to have been selling adulterated oil for and on behalf of the first accused. On 30-7-1957 P. W. 1, the Food Inspector of the Corporation, went to this shop and purchased 12 ozs. of gingilly oil from the accused and after issuing the necessary notice to the accused, sent a portion of it to the Public Analyst. As a result of the analysis, it was found that the oil which was sold as gingilly oil contained a high percentage of groundnut oil and other fatty acids far above the sanctioned limit. The accused were accordingly prosecuted for the offence punishable under Section 16 of the Prevention of Food Adulteration Act, read with Section 7 of the same Act. It was also alleged that for a similar offence, these accused had been convicted and sentenced on a prior occasion.
The learned First Class Magistrate who tried the case, found that all the allegations against them have been made out and accordingly convicted them under Clause (1) (g) (ii) of Section 16 and sentenced each of the accused to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2000/-. In default of payment of fine, each accused was to undergo simple imprisonment for a further period of 6 months. On appeal by the accused, the learned Sessions Judge found that the prosecution was vitiated by certain serious illegalities and accordingly allowed the appeal. The conviction and sentence were set aside and the accused were acquitted. It is against that order of acquittal that the present appeal has been filed by the complainant P. W. 1 after obtaining special leave under Section 417 of the Code of Criminal Procedure.
2. To sustain a prosecution initiated by a public authority for an offence punishable under the Prevention of Food Adulteration Act, it is essential that the condition laid down by Section 20 of the Act) must be satisfied. Section 20 states that 'No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority'. Ext. P4 is the sanction produced by P. W. 1 to satisfy the requirements of Section 20. Ext. P4 is a general authority conferred by the Commissioner of the Corporation on P. W. 1, the Food Inspector, to prosecute all persons who may be found to have been committing offences under the Prevention of Food Adulteration Act before the Corporation First Class Magistrate of Trivandrum. Under Section 20, the sanction required is the sanction of the State Government or the local authority or from a person authorised in this behalf by the State Government or a local authority.
In the present case it has not been satisfactorily proved that the Commissioner of the Corporation had been authorised by the State Government or the local authority to issue the necessary sanction for prosecuting offenders under the Prevention of Food Adulteration Act. In the absence of such proof, Ext. P4 cannot be accepted as a proper and valid sanction or authority as required by Section 20 of the Act. Even apart from this defect about the sanctionevidenced by Ext. P4, there is yet another serious defect about Ext. P. 4. The authority purported to be conferred by Ext. P4 is couched in vague and general terms. Under Ext. P4 the Commissioner has merely stated that the Food Inspector P. W. 1 is authorised to prosecute all offenders under the Prevention of Food Adulteration Act before the Corporation First Class Magistrate. The sanction required by Section 20 is not an empty formality. The sanction must show that the authority giving the sanction had applied his mind to the alleged commission of an offence by the accused person and was satisfied that the accused has to be prosecuted for the said offence.
Necessarily it follows that the sanction must be for the prosecution of specified individuals and for specific offences. These conditions are not satisfied by Ext. P4 which makes no reference to any specified individuals to be prosecuted or to any specific offence for which the prosecution has to be launched. The conferring of an authority or the giving of sanction in such vague and general terms is not what is required under Section 20, A similar question arose for consideration in Jiwan Das v. Rabin Sen, AIR 1956 Cal 64. There it was the question of a sanction under Section 34 of the Industrial Disputes Act. In that case the following observations were made about the test to be satisfied before the sanction could be accepted as a proper and valid one :
'The authority that may be given under Section 34 must refer to the particular offence. To speak of an authority given in general terms without any reference to any particular offence is to ignore the whole intention of the legislature in this matter. Where there is no indication in the authority whether one or more offences have been committed, where the offence was committed or when the offence is said to have been committed, the authority cannot be said to be an authority to make the complaint'.
In Madan Mohan v. State of Uttar Pradesh, 1954 Cri. LJ 1656 : (AIR 1954 SC 637), the Supreme Court had occasion to consider the validity of a sanction for prosecution under the Prevention of Corruption Act and therein it was ruled as follows :
'The burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where the facts constituting the offence do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Where this is not done, the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the Court to try the case.'
Applying these tests to the facts of the present case, it is clear that Ext. P-4 relied on by P. W. 1 cannot be accepted as a proper and valid sanction under Section 20 of the Food Adulteration Act. In the absence of a valid sanction, the prosecution launched by P. W. 1 could not be sustained and Ext. P-4 could not confer jurisdiction on the Magistrate to try the case against the accused. This defect in the prosecutionis by itself sufficient to sustain the order of acquittal passed by the learned Sessions Judge.
3. There have been other vital defects also in the trial of this case. Sub-section (7) of Section 10 stated that 'where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) of Sub-section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures'. This direction was not complied with by P. W. 1 when he went to the shop in question and purchased gingilly oil as per the bill Ext. P5. The mahazar prepared by him at the time has been marked as Ext. P-1. It is seen that besides the complainant and his peon, P. W. 2, the only other witness who has figured as an attestor to the mahazar is P. W. 3.
This witness has betrayed the prosecution and has stated that he signed the mabazar without knowing its contents. Even if his presence at the shop is taken to be true, the prosecution has not offered any satisfactory explanation as to why the presence of one more independent witness could not be secured as required by Sub-section (7) of Section 10. It has come out from the evidence of P. W. 1 himself that the shop in question is situated in a very busy place and that it was easy to get two independent witnesses to witness the purchase of oil by P. W. 1 and also to attest the mahazar, Ext. P-1. The non-compliance with the requirements of Sub-section (7) of Section 10 is a serious irregularity which has caused material prejudice to the accused.
4. It is clear that the purchase of gingilly oil made by P. W. 1 in this case was for the purpose of analysing the oil to find out if it was adulterated or not. Section 11 of the Act states that when a Food Inspector takes sample of food for analysis, he shall give notice in writing then and there of his intention to have it so analysed, to the person from whom he has taken the sample. Admittedly the sample was supplied by the second accused. All the same, it is the case of the prosecution that the sample must be deemed to have been taken from first accused who is alleged to be the owner of the shop.
In such circumstances the notice required by Section 11 should have been given to both the accused. The only notice produced in this case is Ext. P2 and it is addressed to the first accused. But it was not served on him. This notice is seen to have been served on the second accused. Such service cannot be accepted as service of notice on the first accused. The acceptance by the second accused of a notice addressed to the first accused, cannot also be said to be service of the required notice on the second accused. The failure to issue notice as required by Section 11 is also a vital defect which has vitiated the prosecution in this case.
5. Lastly, there is the defect in the charge framed against the accused in so far as it has clubbed together the charge for the actual commission of the offence of selling adulterated gingilly oil on 30-7-1957 and also the charge that the accused are liable for the enhanced punishment under Section 16(1)(g)(ii) o the Act since they have already been convicted for a similar offence on a prior occasion. The proper procedure would have been to frame the charge against the accused for the main offence in the first instance and then to charge them as old offendersafter they have been found guilty of the commissionof the main offence charged against them. We are in agreement with the view taken by the learned Sessions Judge that the defect in the charge as framed against the accused has caused prejudice to them in the trial of the case. Thus in any view of the, case, the order acquitting the accused, calls for no interference in this appeal.
6. In the result this appeal fails and it is accordingly dismissed.