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State of Rajasthan Vs. Ram Dayal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1984CriLJ1224
AppellantState of Rajasthan
RespondentRam Dayal
Cases ReferredMahadeo v. State
Excerpt:
.....recital in the order is not correct and the sanctioning authority had actually not applied its mind to facts of the case and had not satisfied himself that prima facie case existed for the prosecution of the accused. if the accused fails to bring on record any circumstance, which may rebut the presumption arising from the recital and which may show that the recital in the order is not correct or throw doubt on the correctness of the recital, the court will act on the recital contained in the order and on the basis of the said recital, will assume that the sanctioning authority had applied his mind to the facts of the case and had satisfied himself that a prime facie case existed for the alleged offender being put up before the court. in cases where the accused is able to bring on..........recital in the order is not correct and the sanctioning authority had actually not applied its mind to facts of the case and had not satisfied himself that prima facie case existed for the prosecution of the accused. if the accused fails to bring on record any circumstance, which may rebut the presumption arising from the recital and which may show that the recital in the order is not correct or throw doubt on the correctness of the recital, the court will act on the recital contained in the order and on the basis of the said recital, will assume that the sanctioning authority had applied his mind to the facts of the case and had satisfied himself that a prime facie case existed for the alleged offender being put up before the court. in cases where the accused is able to bring on.....
Judgment:

B.C. Agrawal, J.

1. This appeal has been filed by the State against the judgment dated 25th April, 1973 passed by the Sessions Judge, Jodhpur in Criminal Appeal No. 110/72. By his judgment aforesaid, the Sessions Judge allowed the appeal filed by Ramdayal respondent against the judgment dated 10th November, 1972 passed by the Municipal Magistrate 1st Class, Jodhpur convicting the said respondent of the offence under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') and sentencing him to simple imprisonment for a period of nine months and to pay a fine of Rs. 1200/- and in the event of non-payment of fine to undergo rigorous imprisonment for a period of three months. The Sessions Judge, while setting aside the conviction and sentence imposed on the respondent, quashed the proceedings and discharged the respondent.

2. The facts, briefly stated, are that the respondent was a vendor of 'Kulfi' (milk ice cream) in a hand, cart. The licence for sale of 'Kulfi' was issued in the name of his brother Mohanlal. On 6th April, 1969, the respondent was selling kulfi near Stadium Cinema, Jodhpur, and Shri Chhattar Singh (P.W. 1), the Food Inspector purchased 600 gms. of milk ice cream from the respondent for a sum of Rs. 3/- after informing the respondent that he was purchasing it for the purpose of having it tested. This sample of milk ice cream was divided into three equal parts and after adding necessary preservatives, the three parts were duly sealed in three separate bottles. One sealed bottle was handed over to the respondent and the other bottle containing the sample of milk ice cream was sent to the Public Analyst, Jodhpur vide Memo Ex. P-3. From the report (Ex. P-4) received from the Public Analyst, it appeared that the sample of milk ice cream was adulterated as it did not conform to the prescribed standard of purity and that the fat contents and1 the total solids were less than the prescribed quantity. After receiving the report of the Public Analyst, the Food Inspector Shri Chhattar Singh obtained the sanction of the Commissioner, Municipal Council, Jodhpur, for filing the complaint and thereafter he filed a complaint against the respondent and the Mohanlal in the Court of Magistrate, 1st Class, Jodhpur and both the accused persons were tried for the offence under Section 7/16 of the Act before the Municipal Magistrate, Jodhpur. Both the accused persons pleaded not guilty and claimed to be tried.

3. The prosecution in support of its case, examined the Food Inspector, Shri Chhattar Singh (P.W. 1) and Majid Khan (P.W. 2), the attesting witness to the memo (Ex. P-1) prepared by the Food Inspector after purchasing the sample of the milk ice cream from the respondent, as well as the inventory, form (Ex. P-2) prepared by him at the spot. The prosecution has also produced the memo (Ex. P-3) prepared by the Food Inspector, which was sent to the Public Analyst along with the sealed bottle containing the sample, the report (Ex. P-4) of the Public Analyst, the memo (Ex. P-5) prepared by the Food Inspector after obtaining the report of the Public Analyst and the order (Ex. P-6) passed by the Commissioner Municipal Council, Jodhpur granting sanction for filing of complaint against the respondent. The respondent in his statement recorded under Section 342 Cr.P.C. denied that he was selling milk ice cream and he denied that the sample of milk ice cream was taken in his presence and has stated that the memos were not prepared at the spot but were prepared separately.

4. The Municipal Magistrate by his judgment dated 10th November, 1972 held that from the evidence adduced by the prosecution, it was established that the Food Inspector Shri Chhattar Singh had purchased sample of milk ice cream from the respondent and that the said sample was divided into three parts and was put in three bottles which were duly sealed and that one of the sealed bottles was sent to the Public Analyst, Jodhpur for analysis and from the report (Ex. P-4) received from the Public Analyst, it was established that the sample of the milk ice cream contained in the bottle was adulterated. The Municipal Magistrate held that the respondent was selling milk ice cream and, therefore, he was guilty of the offence under Section 7, of the Act and he sentenced him to simple imprisonment for a period of nine months and to pay a fine of Rs. 1200/- and in the event of nonpayment of fine to undergo rigorous imprisonment for a period of three months. As regards accused Mohanlal, the Municipal Magistrate held that his presence at the spot and his selling the ice cream was not established and it was also not established that the respondent was selling milk ice cream on his behalf and, therefore, accused Mohanlal was acquitted of the offence under Section 7/16 of the Act.

5. The respondent filed an appeal against his conviction and sentence aforesaid. The said appeal was disposed of by the Sessions Judge, Jodhpur, by his judgment dated 25th April, 1973. The Sessions Judge held that the prosecution has failed to establish that a valid and proper sanction had been accorded by the sanctioning authority for the prosecution of the accused persons. In this regard, the Sessions Judge held that from the order (Ex. P-6) passed by the sanctioning authority, it was not possible to infer that the sanctioning authority had applied its mind to the facts of the case and that from the evidence of the Food Inspector, Shri Chhattar Singh (P.W. 1), it does not appear as to what were the papers, which were put up before the sanctioning authority. In view of the aforesaid finding, the Sessions Judge set aside the conviction and sentence of the respondent and quashed the proceedings against him and directed that the respondent shall stand discharged. Hence this appeal.

6. At the outset, it may be observed that the judgment that has been passed by the Sessions Judge, Jodhpur is an order of discharge. The said order cannot be treated to be an order of acquittal because the Sessions Judge has discharged the respondent on the techanical ground that there was no valid sanction for filing of the complaint under Section 20 of the Act and the Sessions Judge has not dealt with the merits of the case. Since the order passed by the Sessions Judge is an order of discharge and it cannot be treated as an order of acquittal, no appeal lay against the said order of discharge passed by the Sessions Judge and the legality of the said order could only be questioned by filing a revision petition. Faced with the difficulty the learned* Public Prosecutor submitted that this appeal may be treated as a revision against the order of the Sessions Judge. Taking into consideration the circumstances of the case, we are treating this appeal as a revision against the order of discharge passed by the Sessions Judge and it is being disposed of as a revision.

7. The only question, which arises for consideration in this case is whether the Sessions Judge was right in holding that there was want of valid sanction for the prosecution of the respondent and that while passing the order (Ex. P-6) granting the sanction, the sanctioning authority did' not apply his mind to the facts of the case. The order (Ex. P-6) whereby sanction for prosecution was accorded by the Commissioner, Municipal Council, Jodhpur, reads as under:

Vide the powers invested in me as Commissioner, Municipal Council, Jodhpur vide No. 3584 dated 12.3.69 by the Administrator Municipal Council Jodhpur the then Local Authority to grant sanction for the prosecution of offenders Under Section 20 P.F.A., Act, 1954. I Ramchandra after applying my mind to the facts of this case and being convinced that a prima facie case is made out against (i) Shri Mohanlal s/o Gordhanlal Shir Ramdayal s/o Gordhanlal Mali (Deora) - I hereby sanction the launching of prosecution against Shri Ram Dayal s/o Gordhan Lal Mali near Raj Mahal School, under Section 7/16 of the P.F.A. Act & Rules made there under in Courts of Law in the interest of justice & fair-play. Sanction granted in respect of C. No. CS/69/24 of ice cream.

A perusal of the order would show that in the said order the sanctioning authority has specifically stated that sanction was being granted 'after applying my mind to the facts of this case and being convinced that a prima facie case is made out against (i) Shri Mohanlal s/o Gordhanlal Shri Ramdayal s/o Gordhanlal Mali (Deora)'. The said order (Ex. P-6) has been proved by the Food Inspector, Shri Chhattar Singh (P.W. 1), who has stated that after receiving the report of the Public Analyst, he prepared the necessary papers and submitted the same befnre the local authority, Shri Ralchandra, and after perusing the said papers, he accorded sanction for filing the challan againsu aid papers, he accorded sanction for filing tie challan against Ramdayal and Mohanlal under Section 7/16 of the Act. He has proved the signatures of Shri Ramchandra, the local authority, on the document (Ex. P-6) and has stated that the said signatures were affixed in his presence. During the course of cross-examination, no question was asked on this part of the testimony of Shri Chhattar Singh (P.W. 1) and the said evidence remained unchallenged.

8. For the purpose of holding that the order (Ex. P-6) is not a valid sanction, the learned Sessions Judge has placef reliance on a judgment of a learned single Judge of this Court in Mahadeo v. State 1971 Raj LW 135 : 1971 Cri LJ 1768. In Mahadeo v. State (supra), the learned single Judge of this Court held that the sanction order was passed by the Chairman of the Municipal Council in that case could not be regarded as a valid order of sanction for the reason to at the said order was in a printed form which had been filed by the Food Inspector Shri Lachman Singh and in the body of the sanction no reference had been made to the case in hand. The learned single Judge was of the view that the act of giving written cgnsent le Judge was of the view that the act of giving written performed by the Chairman in that case was nothing but the mechanical act of rubber stamping as it were and that it could not be treated as a valid written consent for the launching of a complaint within the meaning of Section 20 of the Act. In that case, there was evidence of the Food Inspector to the effect that he had prepared the papers and submitted them to the Chairman but the learned single Judge held that the said evidence could not assist the prosecution because there was nothing to show that the Chairman had considered the papers in his presence and it was also not clear as to what papers were submitted by him and whether they included the report of the Public Analyst or not. The learned Sessions Judge after relying upon the judgment in Mahadeo v. State 1971 Cri LJ 1768 (Raj) (supra), has held that in the present case also the sanction (Ex. P-6) is printed and it does not appear to have been filled in the hand of the sanctioning authority and the sanction nowhere makes any reference to the facts of the case and the statement of the Food Inspector Shri Chhattar Singh (P.W. 1) does not show what were the papers, which were put up before the sanctioning authority.

9. We have given our careful consideration to the judgment in Mahadeo v. State (supra). We are unable to agree with the aforesaid decision in so far as it holds that there was no valid sanction under Section 20 of the Act in that case.

10. It cannot be disputed that while exercising its power under Section 20 of the Act to accord sanction for filing of a complaint, the sanctioning authority must apply his mind to the facts of the case and must satisfy himself that a prima facie case exists for the alleged offender being put up before the Court and in order to show that there was a valid sanction under Section 20 of the Act, the prosecution will have to establish that the sanctioning authority had applied his mind to the facts of the case and satisfied himself that a prima facie case existed for the alleged offender being put up before the Court. The prosecution can do so by adducing the necessary evidence to show that the sanctioning authority had so applied his mind and had so satisfied himself. The nature of the evidence that may be required to be adduced by the prosecution for the purpose of establishing that the sanctioning authority had applied his mind to the facts of the case and had satisfied himself that a prima facie case existed for the alleged offender being put up before the Court, would depend on the contents of the order passed by the sanctioning authority. If the order of sanction is silent with regard to application of mind by the sanctioning authority and about his satisfaction about or existence of a prima facie case, the prosecution will have to adduce evidence to show that the sanctioning authority had so applied his mind and had so satisfied himself. But if the order of sanction expressly states that the sanctioning authority had applied its mind to the facts of the case and had satisfied himself that a prima facie case existed for launching the prosecution against the alleged offender the said order, if duly proved, would provide the evidence to show that the sanctioning authority had so applied his mind and had so satisfied himself and it will not be necessary for the prosecution to produce other evidence to establish this fact. The reason being that an order granting sanction under Section 20 of the Act is an administrative order and with regard to such official acts a presumption can be raised under section 114 of the Evidence Act that the said act was regularly performed. As pointed out by one of us (M.C. Jain J.) in Dhaliya v. State of Rajasthan (Criminal Revn. Petn. No. 159/78, decided on November 29, 1982) this presumption under Section 114 is a rule of evidence and it furnishes prima facie evidence of the matter to which it relates and relieves the party of the duty of producing the evidence. In that case, the question was whether there was compliance of the provisions of Rule 17 of the Prevention of Food Adulteration Rules which required that the container of sample for analysis shall be sent to the Public Analyst by registered post or railway parcel or air freight, or by hand in a sealed packed enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst. There was evidence to show that one of the sealed bottles of the sample was sent to the Public Analyst through the memorandum in Form VII but there was no evidence to show that the sample bottle was sent in a sealed packet in an outer cover to the Public Analyst. This Court held that the sealed container of the sample had been sent through memorandum it can safely be presumed that it must have been sent in a sealed packet and that sealed packet must have been addressed to the Public Analyst.

11. In cases where it is necessary to fulfil a condition precedent before passing an administrative order a question often arises as to whether and to what extent the presumption under Section 114(e) of the Evidence Act may be drawn for the purpose of holding that the condition precedent had been fulfilled before the passing of the order. Such a question came up for consideration before the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P. : (1961)IILLJ419SC . In that case the validity of an order issued in exercise of the power conferred by Section 3 of the U.P. Industrial Disputes Act, 1947, was under challange and section 3 empowered the State Government to make certain provisions, by general or special order, if, in its opinion, it was necessary or expedient so to do for securing public safety or convenience, or to maintenance of public order or supplies and services essential to the life of the community or for maintaining employment and it was held that the forming of the opinion referred to above was a condition precedent to the making of the order. In that case the Supreme Court rejected the contention urged on behalf of the State that the mere fact that the order had been passed was sufficient to raise the presumption that conditions precedent have been satisfied even though there is no recital in the order to that effect, on the view that such a presumption can only be raised when there is a recital in the order to that effect and that in the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the Court by other means that the conditions precedent were satisfied before the order was passed. The Supreme Court also rejected the contention urged on behalf of the appellant that there must be a recital on the face of the order before it could be held to be legal on the view that the presumption as to regularity of public acts would apply in such a case but as soon as the order was challenged and it was said that it was passed without the condition precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with. In that case the Supreme Court explained the difference between an order which contains a recital on the face of it and one where it does not contain such a recital in the following words (Para 11):

The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled, but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was no correct and that the conditions precedent were not in fact complied with by the authority : See the observations of Spens C.J. in Emperor v. Sibnath Banerjee 1944 FCR 1 at p. 42 : AIR 1943 FC 75 at p. 92 which were approved by the Privy Council in Emperor v. Sibnath Banerjee 1945 FCR 195 at Pp. 216-17 : AIR 1945 PC 156 at P. 161.

12. The aforesaid principles would be applicable to orders of sanction passed in exercise of the powers conferred by Section 20 of the Act. Although Section 20 of the Act does not in express terms lay down that the sanctioning authority before granting sanction must apply its mind to the facts of the case and must satisfy himself that a prima facie case exists for the alleged offender being put up before the Court, but, such a requirement can be read into it by implication See : State of Bombay v. Purshottam Kanhaiyalal : [1961]1SCR458 . It can, therefore, be said that application of mind to the facts of the case by the sanctioning authority and the satisfaction of the sanctioning authority that a prima facie case exists for the alleged offender being put up before the Court is a condition precedent to the grant of sanction under Section 20 of the Act. If the order of sanction contains an express recital to the effect that the sanctioning authority had applied his mind to the facts of the case and had satisfied himself that a prima facie case existed for the alleged offender being put up before the Court, the Court will presume that the conditions requisite for passing of an order granting sanction viz., application of mind to the facts of the case and satisfaction about the existence of a prima facie case, are fulfilled and then it will be for the accused to rebut the aforesaid presumption by bringing on record the circumstances to show that the said recital in the order is not correct and the sanctioning authority had actually not applied its mind to facts of the case and had not satisfied himself that prima facie case existed for the prosecution of the accused. If the accused fails to bring on record any circumstance, which may rebut the presumption arising from the recital and which may show that the recital in the order is not correct or throw doubt on the correctness of the recital, the court will act on the recital contained in the order and on the basis of the said recital, will assume that the sanctioning authority had applied his mind to the facts of the case and had satisfied himself that a prime facie case existed for the alleged offender being put up before the Court. In cases where the accused is able to bring on record circumstances which indicate that the recital contained in the order of sanction regarding application of mind to the facts of the case and the satisfaction about the existence of the prima facie case is not correct or which creates reasonable doubt about the correctness of the said recital, the Court may not act upon the said recital till the prosecution adduces other evidence to dispel the doubt about the correctness of the recital and to satisfy the Court that the Sanctioning Authority had actually applied his mind to the facts of the case and had satisfied himself about the existence of a prima facie case against the accused.

13. In Mahadeo v. State 1971 Cri LJ 1768 (Raj) (supra) the learned single Judge failed to take note' of the presumption of regularity of official acts arising from the recital contained in the order of sanction because in that case the order of sanction contained a recital to the effect that the sanctioning authority after applying his mind to the facts and documents of the case and being convinced that a case was made out against the accused, had senctioned the launching of prosecution of the accused. In view of the aforesaid recital in the order of sanction, the Court should have presumed that sanctioning authority had applied its mind to the facts of the case and had satisfied himself about the existence of a prima facie case against the accused and it was not necessary for the prosecution to adduce any further evidence to establish that the sanctioning authority had applied its mind to the facts of the case and had satisfied himself about the existence of a prima facie case against the accused. In the circumstances, the fact that the Food Inspector, in his statement, did not say that the sanctioning authority had considered the paper in his presence and had not disclosed the papers that were submitted by him before the sanctioning authority was of no consequence. The need for further evidence to support the recital contained in order of sanction would have arisen only if the accused had been able to bring on record circumstances to establish that' the aforesaid recital contained in the order of sanction was not correct or create a reasonable doubt about the correctness of the said recital. In Mahadeo's case (supra) all that was brought on the record was that the order of sanction was in a printed form and it had not been filed by sanctioning authority but by the Food Inspector. In our opinion, the aforesaid circumstances, namely, the order of sanction being in a printed form and the same having not been filed by the sanctioning authority but by the Food Inspector, without anything more, were not sufficient to rebut the presumption arising from the recital contained in the order of sanction and merely on the basis of the aforesaid circumstances it could not be held that the recital in the order was not correct. We, are, therefore, of the opinion that the decision in Mahadeo v. State (supra) in so far as it holds that there was no valid sanction in that case does not lay down good law.

14. In the present case, the learned Sessions Judge has based himself completely on the judgment in Mahadeo v. State 1971 Cri LJ 1968 (Raj) (supra) and has observed that in the present case also, the order of sanction (Ex. P-8) is in a printed form and does not appear to be filled in the hand of the sanctioning authority and that the order does not make any reference to the facts of the case. The learned Sessions Judge observed that it was for the prosecution to lead other evidence that the sanctioning authority applied its mind to the facts of the case before giving sanction and that it was not possible to infer from the order (Ex. P.6) that the sanctioning authority had applied his mind to the facts of the case and that the statement of Chhatar Singh (P.W. 1) also does not show what were the papers, which were put up before the sanctioning authority. As pointed out earlier, the mere fact that the order of sanction is in a printed form and does not appear to be filled in in the hand of the sanctioning authority by themselves, are not sufficient to rebut the presumption, which arise from the recital contained in the said order that the sanctioning authority had sanctioned the launching of the prosecution of the respondent after applying his mind to the facts of the case and after being convinced that a prima facie case was made out against him. In view of the aforesaid presumption, it was not necessary for the prosecution to adduce evidence to show that while granting sanction the sanctioning authority had applied his mind to the facts of the case and has satisfied himself about the existence of a prima facie case for launcing the prosecution against the respondent. In the present case, however, there is the evidence of Chatar Singh (P.W. 1) to the effect that after receiving the report of the Public Analyst, he had prepared the necessary papers and had submitted the same before the local authority, Shri Ramchandra, and that after perusing the same, the local authority had given the sanction for filing the challan against the accused under Section 7/16 of the Act and that the local authority had affixed his signatures on the said order in his presence. In our opinion, the aforesaid evidence of Chhatar Singh, which has not been challenged in cross-examination, further fortified the presumption which arises from the recital contained in the sanction order (Ex. P-6) and in the circumstances, the learned Sessions Judge was not justified in holding that there was want of a valid sanction for the prosecution of the respondent and it vitiated the entire trial.

15. Although we have found that the order passed by the learned Sessions Judge discharging the respondent, cannot be sustained but we cannot lose sight of the fact that the respondent is only a small vendor of 'Kulfi' in a hand cart and the incident giving rise to the prosecution of the respondent had taken place on 6th April, 1969 and more than 13 years have elapsed. He has undergone the harassment of a trial before the Municipal Magistrate, an appeal before the Sessions Judge and the proceeding before this Court. Moreover in passing the order of discharge the Sessions Judge had relied upon the decision of this Court. Taking into consideration the facts and circumstances of the case, we are of the opinion that it would not be in the interest of justice to set aside the order of discharge passed by the Sessions Judge.

16. For the reasons aforesaid this appeal, which has been treated as a revision petition is dismissed.


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