STATE OF GUJARAT v. AMBALAL MAGANLAL — 1978 DIGILAW 19 (GUJ)

D. P. DESAI, M. K. SHAH, J. ( 1 ) THIS matter has been referred to the Division Bench by Ahmadi J. and it involves a question about the effect of a certificate of the Director of the Central Food Laboratory under sec. 13 (2) of the Prevention of Food Adulteration Act 1954 hereinafter referred to as the Act on the prosecution of a person for the offence of adulteration of cows milk where the said certificate while holding that the milk was adulterated differs from report of the public analyst as regards the particular prescribed standard which is contravened. ( 2 ) THE following facts will illustrate this question. Samples of cows milk sold by the respondent to the Food Inspector of the Ahmedabad Municipal Corporation were taken on April 24 1975 One of these samples was sent to the Public Analyst and the report of the Public Analyst disclosed total solid non fat content 8. 5% and fat content 3. 2%. It further disclosed that fat dificiency was 8% confirmed by ether extraction. Under Item A. 11. 01. 11 of Appendix B to the Prevention of Food Adulteration Rules 1955 two standards are prescribed inter alia in the State of Gujarat both of which must be satisfied in respect of cows milk. According to these two standards the fat content of cows milk should not be below 3. 5% and the milk solid not fat must not be below 8. 5%. Thus in the present case as per the Public Analysts report there was deficiency in the prescribed standard in the fat content only and that is how the article of food fell below the prescribed standard as contemplated by clause (b) of sec. 2 of the Act as it was then in force prior to its amendment by Act 34 of 1976 The written consent of the Health Officer to institute prosecution on the basis of this report of the Public Analyst was obtained by the Food Inspector under sec. 20 of the Act and that is how the prosecution was instituted. In view of this written consent the Court took cognizance of the offence which in this case was punishable under sec. 7 (i) read with sec. 16 (1) (a) (i ). 20 of the Act and that is how the prosecution was instituted. In view of this written consent the Court took cognizance of the offence which in this case was punishable under sec. 7 (i) read with sec. 16 (1) (a) (i ). During the trial the respondent exercised his right to get one of the samples of milk produced in the Court examined by the Director of the Central Food Laboratory under sec. 13 of the Act. The Director of the Central Food Laboratory gave a certificate under sec. 13 (2) of the Act showing the following result:milk fat 4. 5% milk solid not fat 6. 2% according to this certificate the sample did not fall below the prescribed standard of milk fat but it fell below the prescribed standard of milk solid not fat. The Director also therefore opined that the sample was adulterated. Thus there was antithesis as regards the result of the analysis between the Public Analyst and the Director in respect of the prescribed standard which was controverted. It is obvious that the certificate of the Director supersedes that of the Public Analyst and is made at the same time final and conclusive of the fact stated therein. A contention in this peculiar situation was advanced by the accused respondent before the trial Court and it was this; that the accused cannot be convicted on the ground of fat deficiency which obviously is the case here; but that he also cannot be convicted on the ground of milk solid non-fat deficiency because the Medical Officer of Health had not sanctioned prosecution of the accused on the ground of milk solid non-fat deficiency. Thus the contention was that this prosecution in respect of deficiency of milk solid non-fat is without proper sanction. The learned Magistrate accepted this contention and acquitted the accused. Hence this appeal. ( 3 ) AHMADI J. while hearing this appeal found that in a case of this type a view was taken by Thakkar J. in Criminal Appeal No. 324 of 1976 decided on February 17 1977 that the accused cannot be convicted because he was not prosecuted on the allegation that there was deficiency in milk solid non-fat and also because sanction was granted in the con- text of this accusation. Thakkar J. observed:-THE report of the Central Food Laboratory was however to the effect that the percentage of the milk solid non-fat was 8% and not 8. 5% But then respondent No. 1 was prosecuted on the allegation that there was deficiency in the milk fat only. He was not prosecuted on the allegation that there was deficiency in the milk solid non-fat. So also the sanction was granted in the context of this accusation. In the absence of sanction in this behalf and the complaint in this behalf respondent No. 1 could not have been convicted for an offence in this behalf. The learned Magistrate was therefore perfectly justified in acquitting respondent No. 1. It was submitted before Ahmadi J. on behalf of the State that this view of Thakkar J. requires reconsideration and the matter should be referred to a larger Bench. Ahmadi J. agreeing with this submission has referred the matter to the Devision Bench. ( 4 ) TO employ the phraseology of sec. 20 (1) of the Act what is required is not the sanction to prosecute but the written consent for the purpose of instituting prosecution under the Act. Sec. 20 as it stood on the relevant date reads as under :20 No prosecution for an offence under this Act shall be instituted except by or with the written consent of. the Central Government or the State Government or a local authority or a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority;. . . . . . . . . . . . . . . . The Supreme Court has clarified the scope of this section and has pointed out four different authorities who can themselves institute the prosecution in which case no question of written consent arises. It is further pointed out that the prosecution can also be instituted with the written consent of any of these four authorities. State of Bombay v. Purshottam Kanaiyalal A. I. R. 1961 S. C. 1 ). It is further pointed out that the prosecution can also be instituted with the written consent of any of these four authorities. State of Bombay v. Purshottam Kanaiyalal A. I. R. 1961 S. C. 1 ). The following observations of the Court in para 9 at page 3 made this clear: in out view under this section the Prosecution can be instituted (1) by the state Government; (2) by a local authority (3) by a person authorised in this behalf by the State Government or (4) by a person similarly authorised by a local authority. Further a prosecution can also be instituted with the consent of any of these four authorities. Of course these were the observations quoted by the Supreme Court from the judgment of the High Court with approval. It is obvious therefore that if in the present case the prosecution was instituted by any of these four authorities and not by a person who had obtained written consent from any of them the question of want of written consent as has been raised in the present case would not have arisen. The Court if it had already framed charge on the basis of deficiency in fat content would have on receipt of the certificate from the Director of the Central Food Laboratory under sec. 13 (1) of the Act amended the charge showing the deficiency in milk solid non fat. If no charge was framed in such a prosecution instead of framing a charge on the basis of allegation in the complaint as regards deficiency in fat as found from the report of the Public Analyst the court would have framed the charge in the new situation on the allegation that the article of food viz. cows milk was all the same adulterated because of the deficiency in milk solid non fat. No question of acquittal of the accused on this ground of want of written consent would have arisen in such a case. Can it then arise in the present case where cognizance is taken by the Court validly on a valid written consent based on public analysts report at the time of taking of cognizance merely because the subsequent analysis disclosed that the sample was adulterated all the same but on account of deficiency not in fat content but milk solid non-fat contents. In our opinion once the written consent to prosecution is given by any of the four competent authorities mentioned earlier the institution of prosecution should be regarded as if it is by that authority. No further question as regards the validity of written consent as a result of subsequent event would arise in such a case where cognizance of offence is taken by the Court. ( 5 ) APPROACHING this question from another angle we find that the offence in the present case is a single offence of the sale of adulterated article of food adulterated because it did not conform to the prescribed standards. Two standards in respect of cows milk prescribed under the rules as stated earlier must be cumulatively satisfied. Therefore if a given sample falls below any of these two standards the article of food in adulterated and the offence takes place. The two standards therefore are integral part of one and the same offence. If in such a case cognizance is taken upon a valid written consent which consent of course is given on the basis that one of the two parts prescribed as standards is not complied with and it is found subsequent to the institution of the prosecution as a result of the certificate of the Director under see. 13 (2) that that part is complied with but the sample does not comply with the other part which is as integral as the former the offence remains one and the same. The character of the offence does not change. It is only the evidence by which the offence is sought to be proved which is changed. The certificate of the Director is only evidence of the offence in the case though conclusive in nature. The consent once effectively given cannot become invalid or the cognizance of offence taken upon a valid consent cannot be vitiated merely because the evidence by which the offence is sought to be proved changes as a result of a subsequent event. The legislative intendment of the provisions of sec. 20 in so far as it insists on written consent in ease of institution of prose-cution by a person other than the four categories of authorities is quite clear. The legislative intendment of the provisions of sec. 20 in so far as it insists on written consent in ease of institution of prose-cution by a person other than the four categories of authorities is quite clear. In Parshottam Kanaiyalals case (A. I. R. 1961 S. C. 1) (supra) the Supreme Court said in para 13 that the provision as to sanction his undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. This provision should not be so construed as to defeat a validly instituted prosecution. When a Court sends a sample to the Director for analysis under sec. 13 it is only giving effect to the statutory right of the accused before the Court. If in such a case the certificate of the Director shows that all the same the milk sample is adulterated no question of harassment to a trader can arise by the Court proceeding with the trial on the basis of the certificate of the Director. To defeat the prosecution in such a case on the basis that no written consent to prosecution on the basis of Directors certificate is obtained is to defeat the very object of the Act. It is significant to find that sec. 13 in itself provides for the certificate becoming conclusive evidence of the facts stated therein. The legislature having superseded the evidence furnished by the Public Analysts report proceeded to say that the certificate of the Director shall be conclusive evidence of the facts stated therein. This also indicates that the trial has to proceed. In fact if the Directors certificate was fully in favour of the respondent in this case? he would have earned an acquittal on the same even though the written consent was not given on the said certificate. This could not have happened in a case where the Court would refuse to take cognizance for want of written consent to institute prosecution on the basis of Directors certificate. This acquittal the accused could have earned only if the Court proceeded with the case after receipt of the Directors certificate. There fore the offence being one and the same another written consent because of difference of opinion between the public analyst and the Director cannot be insisted upon before proceeding with the trial of such a case. This acquittal the accused could have earned only if the Court proceeded with the case after receipt of the Directors certificate. There fore the offence being one and the same another written consent because of difference of opinion between the public analyst and the Director cannot be insisted upon before proceeding with the trial of such a case. Thus from this angle also the trial started on valid institution of prosecution and taking of cognizance can proceed without the written consent of the Director. If this is not so possibly a strange result may follow. If the Directors report is accepted in part only with regard to the fat content alone it is clear that accused has got to be acquitted in view of the final and conclusive nature of this certificate. In law this acquittal is the acquittal of the offence of selling adulterated article of food under sec. 7 read with sec. 16 of the Act. Another prosecution therefore for the same offence based on the certificate of the Director showing deficiency in respect of the milk solid non fat content would be barred even if the same is instituted with the written consent of the competent authority. The result would be that the person who as per the final and conclusive evidence on record has committed the offence would go scot free merely because the Director differs from the public analyst in the result of the analysis. The provision that the Directors certificate supersedes the report of the public analyst in itself shows that it is the Directors certificate which is to hold the field. The Court in a case of this type has to proceed further on the basis of the certificate of the Director. There is no question of prejudice to the defence because if the charge is not framed the same can be framed on the basis of the certificate of the Director and if the charge in already framed before the receipt of the certificate the same can be altered or amended. ( 6 ) THUS we find the conclusion inescapable that it is not necessary to obtain the written consent for institution of this prosecution on the basis of the certificate of the Director because the prosecution was validly instituted upon the written consent given on the basis of the report of the Public Analyst. ( 6 ) THUS we find the conclusion inescapable that it is not necessary to obtain the written consent for institution of this prosecution on the basis of the certificate of the Director because the prosecution was validly instituted upon the written consent given on the basis of the report of the Public Analyst. With great respect we are unable to persuade our selves to adopt the reason given by Thakkar J. in the paragraph reproduced in the earlier part of this judgment in Criminal Appeal No. 324 of 1976 decided on February 17 1977 That decision in our opinion does not decide the question correctly. ( 7 ) ON behalf of the respondent-accused it was urged that giving of written consent is not an empty formality and it requires application of mind. With this we no doubt agree but that does not lead us to the correct solution of the problem in this case. We find that a learned Single Judge of the Delhi High Court in Surinder Kumar v. The State 1975 All India Prevention of Food Adulteration Cases 363 has reached the same conclusion on this question. The acquittal in the present case is based on the question of written consent only. Therefore the same will have to be set aside and the matter will have to be sent back to the trial Court for disposal on merits in accordance with law. ( 8 ) IN the result the appeal is allowed. The order of acquittal passed by the learned trial Magistrate is set aside and the matter is sent back to the trial Court for disposal on merits in accordance with law. .