C. V. RANE, J. ( 1 ) THIS judgment will govern the disposal of criminal revision applications Nos. 42 to 46 of 1976 as they involve a common question of law. ( 2 ) THE petitioner in each of these cases was at the relevant point of time the Manager Rajkot District Gopalak Co-operative Milk Producers Union Rajkot. The food inspector of Rajkot Municipality (now replaced by the Municipal Corporation) Rajkot has filed five complaints against the petitioner and the other persons in the court of the Judicial Magistrate First class at Rajkot alleging that they had committed offences punishable under sec. 16 read with sec. 7 of the Prevention of Food Adulteration Act 1954 hereinafter referred to as the Act by selling adulterated milk. The petitioner raised a preliminary objection in each of the aforesaid cases that as he was a public servant the criminal Court could not take cogni- zance of the alleged offence in the absence of sanction of the State Government as contemplated by sec. 197 of the Criminal Procedure Code. 1898 It was his case that he was a State Government servant and his services were loaned to the Milk Producers Union and that the alleged act was done by him while acting or purporting to act in the discharge of his official duty. The learned Judicial Magistrate First class Rajkot rejected the above contention of the accused by his order dated 3rd January 1976. Being aggrieved by the above order the accused in the above criminal cases has come in revision to this Court. ( 3 ) IT is submitted by Mr. D. D. Vyas learned Advocate for the petiti- oner that the petitioner was merely the Manager of the Milk Producers Union and that whatever act is alleged to have been done by him was done while acting or purporting to act in the discharge of his official duty and hence in the absence of any sanction under sec. 197 of the Code the Court cannot take any cognizance of the offence alleged to have been committed by the petitioner. Sec. 197 (1) of the Criminal Procedure Code which is relevant for our purpose reads as under :97 any person who is a judge within the meaning of sec. 197 of the Code the Court cannot take any cognizance of the offence alleged to have been committed by the petitioner. Sec. 197 (1) of the Criminal Procedure Code which is relevant for our purpose reads as under :97 any person who is a judge within the meaning of sec. 19 of the Indian Penal Code or when any Magistrate or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 employed in connection with the affairs of the Union of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State of the State Government. IT is submitted by the learned Public Prosecutor and Mr. P. M. Thakkar learned Advocate for respondent No 1 that the act of selling adulterated milk can never be said to be an act done in the discharge of official du- ty. At this stage it would be convenient to refer to the allegation made against the petitioner in each of the aforesaid five criminal cases. Accor- ding to the complainant in the above cases he had purchased certain quantity of milk at the milk centres run by the Milk Producers Union of which the petitioner was the Manager. The above milk was found to be adulterated. Now to sell adulterated milk is an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Act. In order to appreciate the point raised by the petitioner in each of the aforesaid five cases it is necessary to refer to sec. 17 of the Act and it reads as under :17 Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of and was person. 17 of the Act and it reads as under :17 Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of and was person. sible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: provided that nothing contained in this sub-section shall render any such person liable to any punishment provide it in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent he commission of such offence. (2) Notwithstanding anything contained in sub-sec. (1) where an offence under this Act has been committed by a company and it is provided that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation-For the purposes of this section- (a) company means any body corporate and includes a firm or other associ- ation of individuals; and (b) director in relation to a firm means a partner in the firm. The explanation to sec. 17 shows that a company means any body corporate and includes a firm or other association of individuals. The Milk Producers Union in question can be said to be a company within the mean- ing of the above explanation to sec. 17 of the Act. While providing in sub- sec. (1) of sec. 17 of the Act that every person who at the time the offence was committed was in charge of or responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence under the Act committed by the company it has been speci- fically provided in the proviso to sub-sec (1) of sec. 17 that nothing contain- ed in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. It is easy to understand the reasons for providing the above safeguard to a person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company so far as the offence commi- tted by the company was concerned. While deciding the question whether the act in question was committed by the petitioner while acting or pur- porting to act in the discharge of his official duty it is necessary to bear in mind the provisions of sec. 17 of the Act which relate to the offences committed by a company and also to the safeguard that is provided to the person who at the relevant point of time was in charge of and was responsible to the company for the conduct of the business of the company. ( 4 ) IT is submitted by Mr. Vyas that as a Manager of the Milk Pro- ducers Union the petitioner was expected to keep only general supervision in exercise of his official duty and that even if it is assumed that the milk in question was adulterated the alleged offence should be held to have been committed by the petitioner in the discharge of his official duty and in that case sanction under sec. 197 of the Code will be necessary. In support of his above submission he has relied on the decision of the Supreme Court in the case of Pukhraj v. State of Rajasthan and another A. I. R. 1973 S. C. 2591. In the above case the appellant had filed a compl- aint against the second respondent before the Additional Munsiff Magistrate of Jodhpur city under secs. 323 and 504 of the Indian Penal Code. The second respondent was the Post Master General Rajasthan and the appellant a clerk in the Head Post office at Jodhpur. The relevant part of the complaint as it appears from the report was as followsthat the accused came on tour to Jodhpur on 25. 10. 1971. He arrived at the Head Post office Jodhpur in connection with the inspection at 5. The relevant part of the complaint as it appears from the report was as followsthat the accused came on tour to Jodhpur on 25. 10. 1971. He arrived at the Head Post office Jodhpur in connection with the inspection at 5. 45 p. m. The com- plainant reached to submit his representation to the accused for cancelling his transfer when the accused just sat in his jeep and the complainant started narrating his story. That the accused being enraged by this complaint kicked him in his abdomen and abused him by saying Gale Goonda Badmash on one hand you are complain- ing and on the other hand you are requesting for the cancellation of transfer. That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance. That after kicking and abusing the complainant the accused ran away in his jeep. THE second respondent filed an application under sec. 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged if at all done by the accused were done while discharging his duties as a public servant. The Munsiff Magistrate dismissed the application but a single Judge of the Rajasthan High Court allowed the revision petition filed by the second respondent and set aside the order of the lower Court holding that the second respondent could not be prosecuted unless prior sanction of the Central Government had been obtained. The complainant appealed to the Supreme Court. Amongst other things it is observed in the above case - While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. Mr. Vyas relies on the following observations of their Lordships in the above casethe section is not restricted only to cases of anything purported to be done in good faith for a person who ostensibly acts in execution of his duty still purports so to act although he may have a dishonest intention. Nor is it confined to cases where the act which constitutes the offence is the official duty of the official con- cerned. Such an interpretation would involve a contradiction in terms because an offence can never be an official duty. Nor is it confined to cases where the act which constitutes the offence is the official duty of the official con- cerned. Such an interpretation would involve a contradiction in terms because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable or being committed only by a public servant and not by anyone else but that it is committed by a public servant in an act done or purporting to be done in the exe- cution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a pub- lic servant. Expressions such as the capacity in which the act is performed cloak of office and professed exercise of office may not always be appropri- ate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be done or purporting to be done in execution of a duty. SO far as the facts of the above case were concerned the Supreme Court held that applying this test it is difficult to say that the acts complained of i. e. of kicking the complainant and of abusing him could be said to have been done in the course of performance of the 2nd respondents duty. At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said to be in pur- ported exercise of his duty. Very clearly it is not. At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said to be in pur- ported exercise of his duty. Very clearly it is not. In the present cases according to the prosecution the milk that was distributed or supplied by the Milk Producers Union to the distributing centres and sold at those centres was found to have been adulterated. It is not the case of the prosecution that the milk which was found to have been adulterated was personally supplied or sold by the petitioner. On the basis of the above facts it is argued by the learned Advocate for the petitioners that the act of supplying milk to the milk centres can be said to have been done by the petitioner in the discharge of his official duty as the Manager of the dairy in question. It is submitted by Mr. P. M Thakkar that only the act of distri- buting supplying or selling milk of prescribed standard can be said to have been done in the discharge of official duty and that the act of su- pplying distributing or selling adulterated milk can never be said to have been done in the discharge of officeal duty. I have already pointed out that according to sec. 16 (1) (a) read with sec. 7 (1) of the Act to sell or distribute adulterated milk is an offence under the Act. As pointed out by their Lordships of the Supreme Court in the case of Pukhraj (supra)- while the law is well settled the difficulty really arises in applying law to the facts of any particular case and these cases before me provide an instance when such a difficulty is felt In the present cases it cannot be disputed that the act of supplying or distributing milk to the milk centres or that of selling milk at those centres is an act done in the discharge of official duty. It should however be remembered that the petitioner was expected to distribute supply or sell milk according to the prescribed standard and not adulterated milk. It should however be remembered that the petitioner was expected to distribute supply or sell milk according to the prescribed standard and not adulterated milk. This would mean that though the act of distributing or supplying or selling milk according to the presc- ribed standard is an act done in the discharge of official duty the act of selling supplying or distributing adulterated milk cannot be treated as the act done in the discharge of official duty. Though the line which distinguishes his act done in the discharge of official duty from the one which cannot be said to have been done in the discharge of his official duty is thin it is real and substantial in view of the peculiar provisions of the Act. In this connection it may be pointed out that in order to constitute an offence under sec. 16 (1) (a) read with sec 7 of the Act it is no the necessary ingredient of the offence that the accused should have knowledge that a particular article of food that was manufactured for sale or stored sold or distributed as the case may be was adulterated. The offence does not involve any question of intention or mens rea or knowledge and it is the very act of manufacturing for sale or of selling etc. an adulterated article of food that is made penal under the Act. The above observations apply even to the offences by companies as specified in sec. 17 of the Act It appears that it is because of the above peculiar nature or ingredients of the offence that a specific provision has been made in the proviso to sec. 17 of the Act which relates to offence by companies as to the defence which can be taken by a person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of its business. It would therefore be open to the accused to prove his inno- cence by showing that his case is covered by the proviso to sec. 17 (1) of the Act. In view of the provisions of sec. It would therefore be open to the accused to prove his inno- cence by showing that his case is covered by the proviso to sec. 17 (1) of the Act. In view of the provisions of sec. 17 (1) of the Act and the pec- uliar nature of the offence as stated above the circumstance that the accused at the relevant point of time was acting only as the Manager of the dairy and that he had nothing to do with the actual distribution or sale of adulterated milk need not be taken into consideration for the purpose of deciding the question whether any sanction under sec. 197 of the Code is necessary in these cases. ( 5 ) ACCORDING to sec. 7 of the Act no person shall himself or by any person on his behalf manufacture for sale or store sell or distribute (1) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the licence; (iv) ny article of food the sale of which is for the time being prohibited by the Food (Health) authority in the interest of public health; or (v) any article of food in contravention of any other provisions of this Act or of any rule made thereunder. While deciding the question of sanction it would be necessary to take into consideration else above provisions of sec. 7 of the Act and it would also be relevant to consider as to in what way the case of a person not being a public servant is different from that of a public servant each of whom at the lime the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company. It is needless to aid that sec. 197 of the Criminal Procedure Code has been enacted with a view to protecting public servants from frivolous complaints made while they are doing their duty as public servants. It is needless to aid that sec. 197 of the Criminal Procedure Code has been enacted with a view to protecting public servants from frivolous complaints made while they are doing their duty as public servants. Look- ing to the provisions of sec 17 of the Act it is quite conceivable that a person who at the time the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company irrespective of the fact whether he was a public servant or not is harassed by some one or the other by starting a prosecution on the basis of frivolous or false allegations as to an offence under the Act. Under these circumstances a question arises as to in what way the case of a person who is a public servant can be distinguished from that of a person who is not a public servant while deciding the question of afford- ing protection against frivolous prosecutions for the alleged offences by the companies referred to in sec. 17 of the Act. Looking to the peculiar nature and ingredients of the offences punishable under sec. 86 read with sec. 7 and 17 of the Act as stated above it is to be considered as to on what basis it would be justifiable to say that a public servant needs a greater protection than a person who is not a public servant so far as the prosecution for the aforesaid offences under the Act is concerned. While deciding the question of sanction under sec. 197 of the Criminal Procedure Code it is necessary to take into consideration the above aspects and ingredients of the offences under the Act. ( 6 ) AS observed above sec. 17 (1) of the Act clearly indicates the defences available to a person who at the time the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company. Now according to sec. 197 of the Code the question or obtaining sanction would arise only in case a Judge or Magistrate or a public servant of the category as stated in the section 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. Now according to sec. 197 of the Code the question or obtaining sanction would arise only in case a Judge or Magistrate or a public servant of the category as stated in the section 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. I have already pointed out that for the purpose of proving the aforesaid offences under the Act it is not necessary to prove means rea and as soon as it is found that any person has manufactured for sale or sold or distributed any adulterated food he will be charged with the offences under the Act. In view of the above peculiar characteristics of the offences under the Act it is difficult to hold that while performing the above acts which per se consti- tute offences under the Act he was acting or purporting to act in the discharge of his official duty. If the above position is borne in mind there is no scope for saying that the act of distributing or supplying adulterated milk to the centres or that of selling such milk at the milk centres was committed by the petitioner while acting or purporting to act in the dis- charge of his official duty. ( 7 ) THE learned Advocate for the petitioner however relying on the decision in the case of Baijnath v. State of Madhya Pradesh A. I. R 1966 S. C. 220 argues that it is the part of the petitioners official duty to sell milk at the milk centres and consequently the above act of selling adulterated milk by some one or the other at the milk centres should be construed to have been done in the discharge of his official duty. In the above case one or the questions to be decided was whether the convict- ion of the appellant under sec. 477-A of the I. P. Code was illegal on the ground that no sanction was given by the State Government under sec. 197 of the Code of Criminal Procedure for his prosecution for the offence. The Supreme Court relying on the decision of the Federal Court in the case of Dr. Hori Ram Singh v. Emperor A. I. R. 1939 Federal Court 43 took the view that for the purpose of prosecution for the offence under sec. 197 of the Code of Criminal Procedure for his prosecution for the offence. The Supreme Court relying on the decision of the Federal Court in the case of Dr. Hori Ram Singh v. Emperor A. I. R. 1939 Federal Court 43 took the view that for the purpose of prosecution for the offence under sec. 477-A read with sec. 109 of the I. P. Code sanction of the State Government was necessary. As regards the offence under sec. 409 of the I. P. Code it has been held that no such sanction was necessary. The relevant observations of the point are: with regard to the other charge under sec. 477-A/109 of the Indian Penal Code the legal position is different and in our opinion the sanction of the State Govt. is necessary for the prosecution of the appellant on this charge because it was com- mitted within the scope of official duties though in dereliction of them. In the case of Dr. Hori Ram singh (supra ). a similar view has been taken. The reasoning of Sulaiman J. on the point is:but an offence under sec. 477-A I. P. C. is committed if an officer or servant or anyone employed or acting in such capacity wilfully and with intent to defraud falsifies any book or account. Thus where it is his duty to maintain a record or a register and in maintaining that register he makes some entries which are false to his knowledge he is certainly purporting to act though not actually acting in the execution of his duty because he is making certain entries in the register knowing them to be false. He is ostensibly professing to be discharging his official duty in maintaining the register which he is bound to Maintain correctly. In making the entries he pretends or purports to act in the execution of his duty but in point of fact he is acting in direct dereliction of it. It has been argued by the Advocate General of the Punjab that sec 270 (1) refers only to the Commission of an act and not to omission. This may not be accurate but even quite apart from this the falsification of accounts is by no means a mere omission. It is true that some entries are alleged to have been omitted in order to conceal the criminal breach of trust. This may not be accurate but even quite apart from this the falsification of accounts is by no means a mere omission. It is true that some entries are alleged to have been omitted in order to conceal the criminal breach of trust. If an omission were due merely to an honest mistake it would certainly remain a mere omission but where the omission of certain items is intentional so that a false balance may be shown and the real surplus may not be disclosed it is a positive act of falsifying accounts. There is a falsification of the total just as much as that of particular entries that have been omitted. In my opinion the con sent of the Governor was necessary for the charge under sec. 477-A though not for that under sec. 409 I. P. C. The reasoning of Varadachariar J. on the point is:the learned Judges have dealt with both the charges i. e. the one under sec. 409 and the other under sec. 477-A as on the same footing it however seems to me necessary to draw a distinction for the present purpose between the charge under sec. 409 and the charge under sec. 477-A. Though a reference to the capacity of the accused as a public servant is involved both in the charge under sec. 409 and in the charge under sec. 477-A. there is an important difference between the two cases when one comes to deal with the act complained of. In the first the official capacity is material only in connection with the entrustment and does not nece- ssarily enter into the later act of misappropriation or conversion which is the act complained of. In the charge under sec 477-A the official capacity is involved in the very act complained of as amounting to a crime because the gravamen of the charge is that the accused acted fraudulently in the discharge of his official duty. The consent of the Governor would thus be prima facie necessary for the institu- tion of proceedings against the appellant under sec. The consent of the Governor would thus be prima facie necessary for the institu- tion of proceedings against the appellant under sec. 477-A. The learned advocate General of the Punjab sought to found an argument on the fact that the appellant is in the present case charged not with an act in the sense of making a fraudulent entry in the course of his official duty but with an omission to make all entry which it was his duty to make. I do not think that anything can be made to turn on this distinction. Apart from the principle that for the purposes of the criminal law acts and illegal omissions stand very much on the same footing the conduct of the appellant in maintaining the accounts which it was his duty to keep has to be dealt with as a whole and the particular omission cannot of itself be treated as an offence except as a step in the appellants conduct in relation to the maintenance of the register which it was his duty correctly to maintain. IT is submitted by Mr. Vyas that if the sanction was necessary for pro- secution for the offence under sec. 477-A of the Code there is no reason why it should be held that no such sanction was necessary for prosecution for offence under the Act. Mr. P. M. Thakkar for respondent No. 1 for the offence under sec. 477-A of the I. P. Code was thought necessary was that that offence involved the element of intention as stated in the section; whereas for the offence under the Act the question of intention was wholly irrelevant and hence it was not necessary to obtain any sanction under sec. 197 of the Criminal Procedure Code for prosecu- tion for an offence under the Act. I find considerable force in the above submission of Mr. Thakkar. In this connection I may refer to the following observation in the case of Hori Ram Singh (supra):but an offence under sec. 477-A I. P. C. is committed if an officer or servant or anyone employed or acting in such capacity wilfully and with intent to defraud falsifies any book or account. Thakkar. In this connection I may refer to the following observation in the case of Hori Ram Singh (supra):but an offence under sec. 477-A I. P. C. is committed if an officer or servant or anyone employed or acting in such capacity wilfully and with intent to defraud falsifies any book or account. Thus where it is his duty to maintain a record or a register and in maintaining that register he makes same entries which are false to his knowledge he is certainly purporting to act though not actually acting in the execution of his duty because he is making certain entries in the register kno- wing them to be false. THE above observations clearly show that in view of the peculiar ingre- dients of the offence under sec. 477-A of the I. P. Code it would be open to the culprit to say that he was maintaining the accounts or the register which are alleged to have been falsified in the discharge of his official duty. No such plea can be advanced by a person who is charged with the aforesaid offences under the Act. In view of the fact that as soon as an adulterated food is manufactured sold or distributed the relevant offence under the Act is complete irrespective of the fact whether he had done so intentionally or otherwise or whether the food was adulterated to the knowledge of the person concerned. This shows that it is possible to draw a line between the act of manufacturing selling or distributing food which is not adulterated and the act of manufacturing selling or distributing food which is adulterated. In view of the ingre- dients of the offence under sec. 477-A of the I. P. Code it is not possible to draw any such line. Considering all these Circumstances I feel that it would be rather difficult to apply the ratio in the case of Hori Ram Singh (supra) to these cases before me Thus according to me no sanction is necessary for prosecuting the petitioner for the offence in question under the Act. A similar view has been taken by the Andhra Pradesh and Delhi High Courts in the cases of M. C. S. Reddy v. the State 1975 Criminal Law Journal 1015 and Shri S. S. Dhanba v. the Municipal Corporation of Delhi and others 1975 Prevention of Food Adulteration Cases 308 respectively. A similar view has been taken by the Andhra Pradesh and Delhi High Courts in the cases of M. C. S. Reddy v. the State 1975 Criminal Law Journal 1015 and Shri S. S. Dhanba v. the Municipal Corporation of Delhi and others 1975 Prevention of Food Adulteration Cases 308 respectively. I am therefore of the view that the learned Magistrate was quite justified in rejecting the contention raised by the petitioner. ( 8 ) THE result the applications are dismissed. Applications dismissed. .