Municipal Council, Sri Ganganagar v. Naresh Kumar — 1978 DIGILAW 376 (RAJ)

M.C. JAIN, J.—This is an appeal by the Municipal Council, Sri Ganganagar, against the judgment dated 8 81973 passed by the Magistrate, First Glass, Sri Ganganagar, whereby the accused respondent was convicted of the offence under sec. 7/16 of the Prevention of Food Adulteration Act, 1954. 2. The prosecution case in brief is that the Food Inspector Veer Singh checked the accused-respondent Naresh Kumar on 18-11-1970 at about 8 30, a.m., when he was proceeding on a cycle carrying cow milk. He purchased 660 ml. milk for 0.85 p. for analysis vide receipt Ex. P/1. The sample was put into three bottles in equal quantity and 18 drops of formalin were put in each bottle and thereafter the bottles were packed and sealed. It was all done in the presence of motbirs Om Prakash and Ram Chandra. Memo Ex P/2 was prepared on which signatures of the accused respondent and the motbirs were obtained. Form VI was prepared in duplicate. A copy thereof was given to the accused and the other copy is Ex. P/3. The Food Inspector delivered one of the sealed sample bottles to the accused and one was sent to the Public Analyst, Bikaner, for analysis. The specimen impression of the seal along with the memo was sent to the Public Analyst through registered letter. The third copy of Form VI is Ex. P/4. One of its copy was sent along with the sample. On receipt of the report of the Public Analyst Ex P/5, it was found that the milk was adulterated by reason of its containing about 16% of added water. The fat contents were 5.0% and the solid non-fat contents were 7.1% The Food Inspector submitted all the papers to the Chairman, Municipal Council, Sri Ganganagar, for consent and obtained his consent Ex. P/6. Thereafter a complaint was presented by him in the Court of the Magistrate, First Class, Sri Ganganagar. The learned Magistrate tried the accused. The prosecution examined two witnesses Veer Singh and Ramchandra. The accused denied the prosecution case and in his statement under sec. 342, Cr.P.C., he stated that analysis was not done properly and the sample was tempered. P/6. Thereafter a complaint was presented by him in the Court of the Magistrate, First Class, Sri Ganganagar. The learned Magistrate tried the accused. The prosecution examined two witnesses Veer Singh and Ramchandra. The accused denied the prosecution case and in his statement under sec. 342, Cr.P.C., he stated that analysis was not done properly and the sample was tempered. He moved an application on 24 2 1973 for sending the sample to the Director, Central Food Laboratory, Calcutta, but the same was rejected on the same day on the ground that the accused appeared on 31.3.1972 and the sample was taken on 18.11.1970. The sample of milk does r?ot remain fit for analysis and two years are over since the sample was taken, so the application was rejected on the ground that there is no sense in sending the sample to the Director for analysis. The learned Magistrate after trial and hearing, acquitted the accused on the ground that compliance of section 10 (7) of the Prevention of Food Adulteration Act, 1954, has not been made. The witness Ramchandra has not supported the statement of the Food Inspector and the other independent witness Shri Om Prakash has not been examined. The acquittal was also recorded on the ground that the consent Ex.P/6 is not valid, the reason being that the offences under which the prosecution was sanctioned were not the offences under the Prevention of Food Adulteration Act. In the written consent the offences stated were under section 16 (1) (a) (g) (i) 16 (1) (a) (g) (ii). Dis-satisfied with the judgment of acquittal the Municipal Council has preferred this appeal after the grant of leave to appeal. 3. I have heard Shri B.R. Arora, learned counsel for the appellant, and Shri M.L. Garg, learned counsel for the accused-respondent, and perused the record of the case. 4. The learned counsel for the appellant first contended that in view of the statement of the Food Inspector it stands proved that the compliance of section 10 (7) of the Prevention of Food Adulteration Act was made. According to the Food Inspector the sample was purchased in the presence of Om Prakash and Ram Chandra and all formalities were completed in their presence. Thus, they were associated in the proceedings right from the very beginning. According to the Food Inspector the sample was purchased in the presence of Om Prakash and Ram Chandra and all formalities were completed in their presence. Thus, they were associated in the proceedings right from the very beginning. He urged that even Ramchandra, who has not supported the prosecution, has admitted his signatures on Ex P/2. 2 form VI and Memo Ex.P/3 Ramchandra, no doubt, has stated that when he reached near the Food Inspector, milk was already there in the bottles and he does not know from whom the milk was taken, but he admitted that at that place the Food Inspector and Naresh Kumar were there along with one more person, whose name he does not know. According to him his signatures were obtained to verify that the bottles were sealed in his presence. The learned counsel submitted that, it appears, no permission to cross-examine this witness was sought, but that will be of no consequence and the statement of Ramchandra does not bind the Municipal Council. There can be no valid reason to discard the testimony of the Food Inspector. The evidence of Ramchandra ought to have been appreciated on the basis of Ex.P/2 and Ex.P/3 along with the statement of the Food Inspector. He also urged that the steps for the production of Om Prakash were continuously taken by the complainant. Despite service of summons he did not appear. Thereafter warrant was issued, but the warrant returned unserved, so his evidence was closed. Under these circumstances it cannot be said that the other witness was with held by the complainant He referred to some case law pointing out that if compliance of section 10 (7) is proved by the statement of the Food Inspector, non-production of any motbir does not vitiate the trial. 5. The learned counsel for the accused-respondent on the other hand submitted that Ram Chandra has not been declared hostile and as such his statement should be taken to be true and according to his statement, he was not associated from the stage of purchase of sample and putting the sample in clean dry bottles in equal quantity and then putting 18 drops of formalin in each bottle. When he has not been so associated, compliance of sec. 10(7) was not made and on this ground the learned Magistrate was justified in not acting upon the sole testimony of the Food Inspector. When he has not been so associated, compliance of sec. 10(7) was not made and on this ground the learned Magistrate was justified in not acting upon the sole testimony of the Food Inspector. He very much emphasised that the statement of Ramchandra cannot be considered to be hostile to the complainant when no permission has been sought to cross-examine him. 6. The first question that emerges for consideration is as to whether the statement of Ramchandra binds the complainant when he has not been declared hostile or when no permission was sought to cross-examine him. In this connection it may be stated that the evidence of this witness has to be appreciated in the light of the other material on the record. If the evidence is found worthy of credence that alone it can be acted upon. Simply because permission to cross-examine was not sought it cannot be said that the prosecution is bound by whatever the witness has stated. Under section 154 of the Evidence Act, it is open to the party to put any question in the nature of cross examination after seeking necessary permission from the court and the court may allow in its discretion, such question which may be put in cross examination by the adverse party to a witness by that party who has called him. When no permission is sought and no cross-examination is directed, there is no such rule that whatever the witness has stated binds the party who has called. Reference in this connection may be made to a decision of Mysore High Court State of Mysore vs. Raju Shetty(l). In this connection it was observed as under:- "Ordinarily when a party puts a witness in box, he can be taken to represent to the Court that the said witness is expected to state the truth. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to crossexamine him Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, is not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not change if the evidence given by such a witness is adverse to the case of the party calling him. Even in such a case, the Court has the power and duty of deciding whether or not to believe him. It is, therefore, not right to proceed on the basis that whatever is stated by a witness which is not in favour of the case of the party calling him should necessarily be believed as if it were an admission made and finding upon the party calling him." 7. In the light of the principle enunciated above the statement of Ram-Chandra can be judged and if it is found unworthy of credence having regard to the testimony of the Food Inspector and the other material on record, such a statement would not in any way bind the complainant. It may be stated that Ramchandra has admitted his signatures on Form VI, Ex P/2 and Memo Ex. P/3. In view of these signatures on these documents, it cannot be said that he is a truthful witness and his statement does not inspire confidence. Whatever he has stated, on that basis it cannot be found that the sample was taken in his presence. P/3. In view of these signatures on these documents, it cannot be said that he is a truthful witness and his statement does not inspire confidence. Whatever he has stated, on that basis it cannot be found that the sample was taken in his presence. As regards the compliance of section 10(7) I find the statement of Veer Singh truthful and credible and nothing has come out in his cross examination so as to detract from the truthful character of his statement. According to him Om Prakash and Ramchandra both were called and in their presence the sample was taken and other formalities were completed. The sample was purchased and was put into the three bottles in equal quantity and three bottles were packed and sealed. In Babulal Hargovindas vs. State of Gujarat (2) their Lordships of the Supreme Court observed that the provisions of Section 10(7) being salutary should be complied with by the Food Inspector, This however does not mean that the evidence of the Food Inspector who is not an accomplice, that he had complied with the requirements of law by calling a panch witness and taking his signature cannot be accepted without corroboration especially when the panch has admitted his signature. 8. In Shri Ram Labhaya vs. Municipal Corporation of Delhi (3) observations made in the case of Babu Lal Hargovindas vs. State of Gujarat ( supra) received the approval of the court and the Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against the possible allegations of excesses or unfair practices by the Food Inspector, and further it was held as under:- "While taking action under any of the provision mentioned in sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, 1954, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. However, regard ess of all circumstances, the non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to call" one or more persons to be present when he takes action. However, regard ess of all circumstances, the non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to call" one or more persons to be present when he takes action. Where the Food Inspector did call the neighbour shopkeepers to witness the taking of the sample but none was willing to co-operate, he could not certainly compel their presence. In such circumstance*, the prosecution was received of its obligation to cite independent witnesses It is easy enough to understand that shop-keepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws." 9. Reference may also be made to a decision of the Supreme Court Prem Ballab vs. The State (Delhi Admn.)(4). In this case his Lordship Bhagwati, J. observed as under: "It is unfortunately not an infrequent occurrence to find that panch witnesses turn hostile and go back upon what is stated in the panchnama in utter disregard of truth. This betrays lack of character and absence of civ c sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity, This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administration of justice." ................................................................. "There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of cauion that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law If it were otherwise, it would be possible for any guilty person to escape punishment by restoring to the device of bribing panch witnesses. The conviction of the appellant cannot, therefore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar." 10. In Shrikishan vs. State (5) it was observed that the correct way of looking at the matter is whether non-compliance of the provisions of sec. The conviction of the appellant cannot, therefore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar." 10. In Shrikishan vs. State (5) it was observed that the correct way of looking at the matter is whether non-compliance of the provisions of sec. 10(7) of the Prevention of Food Adulteration Act by the Food Inspector has caused any prejudice to the accused in the trial or not The mere fact that he has failed to call two witnesses at the time of his inspection would not vitiate the trial. Though it is not so in the present case. 11. In Khaju vs. The State (6) it was observed that failure to call motbirs in evidence does not vitiate the trial. In this case motbirs were not examined and the testimony of the Food Inspector alone was believed. According to the Food Inspector two motbirs were associated with the proceedings and their signatures were obtained. In this connection it was observed that the trial court was not wrong in relying upon the sole testimony of the Food Inspector and it passes beyond comprehension that the trial court would be inclined to distrust the evidence of the Food Inspector for no valid reason and that there is nothing inherently improbable in the Food Inspectors statement which would persuade the Court to reject his testimony. It was further observed that it is not the law that a fact cannot be proved by the evidence of a single witness. If there is nothing intrinsically unbelievable in the evidence of a particular witness, the court can base its conclusion upon his statement and find the facts deposed by him as proved. 12. Reference may also be made to Municipal Council Alwar vs. Bhulu-Ram (7) wherein relying on the case of Babulal Hargovindas vs. State of Gujarat (supra) it was observed that the evidence of the Food Inspector alone if believed, can be relied upon for proving that the sample was taken as required by law. In that case it was observed that the learned Magistrate was clearly in the wrong when he said that the evidence of the Food Inspector cannot be believed because he was not of sterling worth. 13. In that case it was observed that the learned Magistrate was clearly in the wrong when he said that the evidence of the Food Inspector cannot be believed because he was not of sterling worth. 13. In view of the position of law, as discussed above, in my opinion, in the circumstances of this case it cannot be said that compliance of section 10(7) was not made. As discussed above, no reliance can be placed on the testimony of Ramchandra. On the contrary implicit reliance can be placed on the testimony of the Food Inspector, as there is nothing intrinsically unbelievable in his statement. Thus, I hold that the compliance of the provision contained in section 10(7) was made and it is proved beyond all manner of doubt that the sample was purchased by the Food Inspector in the presence of the motbirs and requisite formalities were completed in their presence. 14. It is next contended by Shri B.R. Arora, learned counsel for the appellant, that the learned Magistrate was wrong in holding that the consent Ex p/6 is not valid. The learned counsel urged that the consent was issued by Shri Madan Lal Kanda, Chairman, Municipal Council, Sri Ganganagar whereby he authorised Shri Veer Singh Chaudhary, Food Inspector under section 20(1) of the Prevention of the Food Adulteration Act to prosecute the accused for having contravened section 16(1) (a) (g) (i)/16(l )(a) (g) (ii) as per the report of the Public Analyst. He submitted that simply because reference of wrong provision was made in the written consent Ex. P/6, it cannot be held to be invalid. Section 20(1) does not require mention of specific provision, which prescribes the offence. The written consent required to be given is only in respect of the prosecution. From Ex P/6 it is clear that the Chairman authorised Shri Veer Singh Chaudhary, Food Inspector, to prosecute the accused Naresh Kumar, as his sample was found to be adulterated. He submitted that it is a printed form. The name of the offences was not struck out and for the first offence, that is, 16(l) (a) (g) (i), it cannot be said that it was wholly incorrect. Clause (g) may be treated as superfluous. If for the offence the consent is partially correct, the whole consent cannot be treated to be invalid. The name of the offences was not struck out and for the first offence, that is, 16(l) (a) (g) (i), it cannot be said that it was wholly incorrect. Clause (g) may be treated as superfluous. If for the offence the consent is partially correct, the whole consent cannot be treated to be invalid. He also contended that the learned Magistrate should have drawn presumption regarding the regularity of Ex.P/6 under section 114 of the Evidence Act and on the basis of the Presumption the consent ought to have been held to be valid, as the presumption has not been rebutted. The learned counsel referred to some case law in support of his contention. 15. The learned counsel for the accused-respondent on the other hand submitted that from the statement of the Food Inspector it is not proved that the Chairman had looked into the record before him before issuing the written consent and further as per the statement of the Food Inspector Madanlal Kanda did not sign in his presence. Thus, the written consent is not proved. He also urged that the written consent should be for specified prosecution. A perusal of the consent would clearly show that the Chairman did not apply his mind, as there was no specific offence mentioned in the consent for which the Food Inspector was authorised to prosecute the accused. He also supported his contention by reference to some case law. 16. For appreciating the respective contentions of the parties it would be proper to reproduce the relevant portion of section 20 of the Prevention of Food Adulteration Act, 1954. The relevant portion of section 20 is as follows: "S.20. Cognizance and trial of offences: (1) 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 : Provided that a prosecution for an offence under this Act may be instituted, by a purchaser referred to in section 12, if he produces in court a copy of the public analyst along with the complaint." 17. The aforesaid provision has come to be interpreted in number of decisions of this Court and of the Supreme Court. The aforesaid provision has come to be interpreted in number of decisions of this Court and of the Supreme Court. This provision has been analysed in those decisions Under this provision it has been examined in the decisions as to who is empowered to prosecute and in case the authority specified in this provision do not prosecute themselves then how the prosecution can be launched by those authorities with their written consent. 18. In State of Bombay (Now Gujarat) vs. Parshottam Kanaiyalal (8), the Food Inspector applied to the Chief Officer, Borough Municipality, Biroda for the latters consent. Thereupon, he gave consent in writing to the initiation of the prosecution of the respondent Parshottam Kanaiya Lal. In pursuance of this consent complaint was presented. It had come in evidence that the Municipality had authorised the Chief Officer to grant sanction to institute proceedings under the Act by its resolution No. 222 dated 7th May, 1956. The copy of the resolution and the consent of the Chief Officer were produced in the case The Magistrate overruled the objection regarding the invalidity of the consent and convicted the accused. Thereupon an appeal was taken to the Court of the Sessions Judge, Baroda, who set aside the conviction. The matter was brought up before the High Court of Bombay by the State in Criminal Revision Petition. The learned Judges of the High Court affirmed the order passed by the learned Sessions Judge. They, however, disagreed with the Sessions Judge in his interpretation of sec 20(1) that a prosecution could not be instituted with "the written consent" of any authority other than the State Government, but they held that "the written consent" should name the person who could institute the complaint and that as "the consent" in that case had not named the Food Inspector as the person authorised to file the complaint, the prosecution was not legally initiated. The State of Bombay took up the matter to the Supreme Court after obtaining special leave. Their Lordships of the Supreme Court first held that on the terms of sec. 20(1) a prosecution could be instituted with the written consent not merely of the State Government but "of a local authority" or "a person authorised in this behalf by the State Government or a local authority". Their Lordships of the Supreme Court first held that on the terms of sec. 20(1) a prosecution could be instituted with the written consent not merely of the State Government but "of a local authority" or "a person authorised in this behalf by the State Government or a local authority". Their Lordships further held that where prosecutions are filed on the basis of written consents granted by the competent person or authority, the specification of the name of the complainant is not a statutory requirement the consent being to a specified prosecution. It was observed as under:— "To start with, the Statute does not in terms prescribe that the complainant shall be named in the "written consent". The only question, therefore, is whether such a limitation or condition could be gathered as a necessary intendment of the provision. In the first place, the reason of the rule could not suggest or imply such a condition. The rule has un doubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It therefore provides that the complaint should be filed, either by a named or specified authority or with the written conSent of such authority. To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable, but the further implication that the complainant must be named in the written consent does not, in our opinion, follow In the present case, the Analysts Report was before the Chief Officer of the Municipality and it was after considering that report and the connected documents that the written consent or sanction was given In the second place, the sub-section itself contains an indication that the written consent is for the launching of a specified prosecution, and not one "in favour of a complainant authorising him to file the complaint Omitting for the moment the State Government and "the local authority" which are specified in the provision as competent by themselves to initiate prosecution, persons "authorised by" these two authorities are further included. The expression "person authorised in this behalf" obviously refers to a named person who is so authorised. The expression "person authorised in this behalf" obviously refers to a named person who is so authorised. In the case of these four categories, the authority or person filing the complaint has itself or himself to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous & is called for. Turning next to the other class, the relevant words are "no prosecution...... shall be instituted except......with the written consent of.........". Here the emphasis is on the consent to the filing of the prosecution, not to the person filing it. The preliminary examination of the facts to ascertain the desirability and propriety of the prosecution is in this last case, the responsibility of the person or authority giving the written consent------ not of the person who figures as the complainant. The two classes are distinct and employment of different phraseology to designate the two types of devolution of authority, constitutes an indication that in the second class of cases-----where prosecution are filed on the basis of written consents granted by the competent person or authority, the specification of the name of the complainant is not a statutory requirement------the consent being to a specified prosecution. We, therefore, consider that the prosecution in the present case was instituted on the complaint which fulfilled the requirements of S.20(l) of the Act." 19. In Dhian Singh vs. Municipal Board, Saharanpur (9), the material facts were that the accused, the proprietor of Khalsa Tea Stall, was selling coloured sweets. The Food Inspector, Municipal Board, Saharanpur, purchased some sweets for analysis and on analysis it was found to be adulterated. On the basis of the report of the Public Analyst a complaint was presented, which was in the name of Municipal Board, Saharanpur, but it was signed by its Food Inspector. There was no dispute that the Municipal Board is a local authority. Hence it was competent to file a complaint, and it was also competent for the Board to authorise someone else to file complaints under the Prevention of Food Adulteration Act on its behalf. The Board could have authorised its Food Inspector to file the complaint on its behalf. There was no dispute that the Municipal Board is a local authority. Hence it was competent to file a complaint, and it was also competent for the Board to authorise someone else to file complaints under the Prevention of Food Adulteration Act on its behalf. The Board could have authorised its Food Inspector to file the complaint on its behalf. A contention was advanced on behalf of the accused that a permission under Sec. 20 of the Prevention of Food Adulteration Act to file a complaint is a condition precedent for validly instituting a complaint under the provisions of the Act and the fulfilment of that condition must be satisfactorily proved by the complainant. Without such a proof, the court would have no jurisdiction to try the case. The contention of the learned counsel for the accused was repelled and it was observed that under Sec. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying ones mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be Conferred long before a particular offence had taken place. It is a conferment of an autho-rity to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question. On the facts of the case their Lordships held that the complaint with which they are concerned in the case had been filed by the Food Inspector on authority of local board, the complaint must be held to have been instituted by the local board itself. The question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact. Official acts must be deemed to have been done according to law. If the accused had challenged the authority of the Food Inspector to file the complaint, the trial court would have gone into that question. The question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact. Official acts must be deemed to have been done according to law. If the accused had challenged the authority of the Food Inspector to file the complaint, the trial court would have gone into that question. The accused cannot be permitted to take up that contention for the first time after the disposal of the appeal It would appear that in this case it was taken that the complaint was instituted by the local board itself and a presumption was raised with regard to the authority of the Food Inspector and further such an objection was not allowed to be taken as it was not raised at the trial. With regard to the authorisation of any person to institute any prosecution it was observed that such an authority can be conferred long before a particular offence has taken place. It would appear from what has been observed in this case that it does not deal with the case where the person on whom power of institution is conferred gives its consent to some one else for prosecution. 20. In Chittaranjan Das vs. The State of Orissa(lO) the question that arose for consideration was whether it was permissible for the State Government or local authority under sec. 20, as it stood before the amendment, to give a general authority to a person to give consent to the institution of prosecutions for offences under the. Act without mentioning a specified individual offence. The question was answered in the affirmative and it was observed that the Legislature by amendment further clarified the position, though prior to amendment as well the words "in this behalf" in section 20 indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecution for offences under the Act, and it was observed that it is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offences under the Act but must relate to some specified individual offence. In this case contention was advanced that there was no valid consent to the prosecution of the accused-appellant in accordance with sub-section (1) of section 20 of the Act. A notification was issued by the Orissa Government authorising, the Superintendent of police Cuttack Vigilance Division to give written consent for instituting prosecutions for offences under the Act. In pursuance of this authority the Superintendent of Police gave written consent of the prosecution of the accused. As stated above, it was held that the State Government could confer general authority on any person to give written consent for prosecution under the Act and it was not essential that the order authorising the person should have mentioned the specified individual offences, There was no question with regard to the application of mind by the authority giving the consent for prosecution of the accused, but the question was as to whether the Government could confer any general authority on any person to give consent. 21. In Corporation of Calcutta vs. Mohd. Omer Ali (11) the Food Inspector filed a complaint against the respondents after obtaining the written consent of the Health Officer which was endorsed at the food of the complaint, and the complaint was made in the name of the Corporation of Calcutta through Food Inspector. A preliminary objection was raised on behalf of the respondents at the trial that the complaint was not filed by the proper authority as required by sec.20(l) of the Act and was hence not maintainable. The ground on, which the preliminary objection was based, was that under sec. 20(1) complaint would be filed only by the Central Government or the State Government or a local authority or a person authorised in that behalf by general or special order by the Central Government or the State Government or the local authority, while in the present case, the complaint was filed by the Food Inspector who was not a person authorised by the Central Government or the State Government or the Corporation of Calcutta and there was accordingly non-compliance with the mandatory requirement of sec. 20(1). 20(1). In this case the prosecution relied on a resolution passed by the Corporation of Calcutta wherein it was provided that "no-prosecution for an offence under the Prevention of Food Adulteration Act, 1954 and the rules framed thereunder shall be instituted except with the written consent of the Health Officer who is authorised in this behalf by the Corporation, a local authority, under sec. 20(1) of the said Act". On behalf of the prosecution, it was contended that since the complaint was filed by the Food Inspector with the written consent of the Health Officer, who was authorised in that behalf by the Corporation of Calcutta under section 20(1), the complaint was in conformity with the requirement of section 20(1). The learned Magistrate discharged the respondents. Thereupon the Corporation preferred a criminal revision to the High Court and the learned single Judge, who heard the revision agreed with the view taken by the Magistrate. The Magistrate held that since the present complaint was filed by the Food Inspector and he was not a person authorised in that behalf by the Central Government or the State Government or the Corporation of Calcutta, the complaint could not be said to be properly filed. The matter was taken up before the Supreme Court, by a certificate. Their Lordships of the Supreme Court observed as under:— "It is clear on a plain reading of the language of sec 20(1) that it inhibits institution of prosecution for an offence under the Act except on fulfilment of one or the other of two conditions. Either the prosecution must be instituted by the Central Govt. or the State Govt. or a local authority or a person authorised in this behalf by the Central Government or the State Government or a local authority or the prosecution should be instituted with the written consent of any one of these four specified categories of authority or individuals. If either of these two conditions is satisfied, it would be sufficient authority for the institution of a prosecution Now in the present case, the complaint was filed by the Food Inspector and there can be no doubt that so far the first condition is concerned it was not fulfilled since the Food Inspector was admittedly not a person authorised to institute a prosecution by the Corporation of Calcutta. But that would not be sufficient to invalidate the complaint, because the complaint would be valid even if the second condition is satisfied. Here the complaint was filed by the Food Inspector with the written consent of the Health Officer & the Health Officer was admittedly a person authorised to give written consent by the Corporation of Calcutta. The complaint was, therefore, filed with the written consent of "a person authorised in this behalf by a local authority" and the requirement of the second condition was clearly satisfied. There was, in the circumstances, no breach of the requirement of Sec 20 (1) in the filing of the complaint by the Food Inspector with the written consent of the Health Officer and the prosecution was properly instituted." Their Lordships placed reliance on the earlier decision of the Supreme Court in the State of Bombay vs. Parshottam Kanaiyalal (supra) and after considering the facts of that case, it was observed that the authority on whom power had been conferred for giving written consent has to give his written consent to a specified prosecution and it is not necessary that the name of the complainant should be mentioned in the written consent. In fact, any person can file a complaint for an offence under the Act on the basis of written consent given by the competent authority or person, because, while giving the written consent, the competent authority or person has to apply his mind not to the question as to who should be authorised to file the complaint, but to the desirability and propriety of filing a particular prosecution and once that is done and the written consent is given, the requirement of section 20(1) is satisfied and thereafter any person can file such prosecution. In that case it was observed that this decision clearly shows that it is not necessary that even after written consent is given by the competent authority or person, prosecution must still be launched by any one of the four categories of authorities or persons specified in section 20 (1). The two conditions specified in section 20 (1) are in the alternative and if either of them is satisfied, it is sufficient compliance with the requirement of the section. The two conditions specified in section 20 (1) are in the alternative and if either of them is satisfied, it is sufficient compliance with the requirement of the section. On the facts of the case it was hold that the Health Officer was authorised by the Corporation to give written consent and the Food Inspector filed the complaint after obtaining the written consent of the Health Officer, so the prosecution was in conformity with the mandatory requirement of section 20(1) and as such the orders of the learned Magistrate and the High Court were set aside and the case was sent back to the Magistrate to proceed with the complaint. 22. From the above case law it would appear that the prosecution could be launched either by the Central Government or the State Government or the local authority or a person authorised by these authorities by general or special order or the prosecution can be launched with the written consent of the three authorities or with the written consent of the persons authorised by these three authorities by general or special order. It is not necessary to specify the person who will institute the complaint or initiate the prosecution. In cases where the specified authorities or persons authorised by them, themselves do not initiate prosecution, in that situation, further requirement is that there should be application of mind by the specified authorities or the persons to specify prosecution while giving the written consent. Where the three specified authorities confer any authority by general or special order on any person to give consent there cannot be conferment of any authority for any specified prosecution, as such a conferment can take place much before the commission of the offence. It may be stated that the question of application of mind to the facts of each individual case before launching prosecution does not arise when the three specified authorities or persons authorised by them institute the proceedings, but it does arise when these authorities or persons themselves do not institute the proceedings and give written consent for initiation of proceedings under the Act. 23. So far as this court is concerned, some cases of this Court have been referred before me. The Division Bench of this Court in The State v. Mohammad Bux (12) examined the question of written consent under section 20 of the Act. 23. So far as this court is concerned, some cases of this Court have been referred before me. The Division Bench of this Court in The State v. Mohammad Bux (12) examined the question of written consent under section 20 of the Act. It was observed that the plain meaning of section 20 of the Act, as it then stood, is that as a condition precedent to the prosecution of an offender under the Act, the prosecution must have been instituted with the "written consent" of,— (1) the State Government, or (2) a local authority, or (3) a person authorised by the State Government in this behalf or, (4) a person authorised by a local authority in this behalf. It will be noticed that the various clauses set out above are disjunctive. Placing reliance on Parshottam Kanaiyalals case (supra) it was observed that before granting a written consent the authority competent to do so should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a court. In that case the prosecution was sanctioned by the Commissioner, Municipal Council, Udaipur, but the resolution authorising him was not produced before the trial court, but the authenticated copy of the resolution was brought on the record in High Court so it was held that the Municipal Commissioner, was duly authorised to give consent and on facts it was found that the sanctioning authority has applied its mind. 24. In Municipal Council, Ajmer vs. Sadulla (13) the complaint was filed by the Law Superintendent and Municipal Prosecuting Inspector. The Municipal Council by its resolution had authorised the Law Superintendent and the Municipal Prosecuting Inspector to institute prosecution under the Act. The accused was convicted by the Magistrate, but the learned Sessions Judge set aside the conviction on the ground that the complaint was filed without obtaining proper sanction from the competent authority and the learned Sessions Judge proceeded on the basis that the resolution was not sufficient to comply with the requirement of sec. 20 as, according to him the resolution was earlier in date and the prosecution was launched after about two months after the passing of the said resolution. The Division Bench of this Court analysed the provision of sec. 20 as, according to him the resolution was earlier in date and the prosecution was launched after about two months after the passing of the said resolution. The Division Bench of this Court analysed the provision of sec. 20 and observed that the plain grammatical meaning of the section is that the prosecution can be instituted,— (i) by the Central Government; (ii) by the State Government; (iii) by a local authority; (iv) by a person authorised in that behalf by any of the above referred authorities either by general or special order. On the facts of the case their Lordships observed that by a general resolution the Municipal Council, Ajmer, had delegated to the Law Superintendent or the Municipal Prosecuting Inspector of the Council power, to institute the prosecution under the provisions of the Act. This kind of general delegation is permissible under sec. 20. 25. In The State vs. Sanwala (14) Division Bench of this Court was required to examine the question of written consent under sec. 20. In that case a complaint was lodged by the Food Inspector, Municipal Board, Sirohi. One Kripa Sharker Kashiva, Licensing Authority, Municipal Board, Sirohi, purporting to exercise his powers under sec. 20 of the Act authorised the prosecution of Sanwala. A document to that effect was placed on record, but was not marked as an exhibit. A presumption was raised under sec. 114 of the Indian Evidence Act that the authority which exercised its powers under sec. 20 of the Act on behalf of the Municipal Board, Sirohi, acted in accordance with law. Other contention which was raised before the Division Bench was that the Licensing Authority did not apply its mind in sanctioning the prosecution of Sanwala and reliance was placed on the decision of this Court in The State vs. Mohammed Bux (supra). With regard to the observations made in Mohammed Buxs case (supra) it was stated that the observations no doubt lend a limited support to the contention raised by the learned counsel for the accused and those observations regarding application of mind owe their authority to the observations made in Parshottam Kanaiyalals case (supra). With regard to the observations made in Mohammed Buxs case (supra) it was stated that the observations no doubt lend a limited support to the contention raised by the learned counsel for the accused and those observations regarding application of mind owe their authority to the observations made in Parshottam Kanaiyalals case (supra). After referring to the observations of their Lordships of the Supreme Court in Parshottam Kanaiyalals case (supra) the Division Bench stated the language employed by the statute is * written consent" as distinguished from a sanction and after quoting the passage of his Lordship Hegde, J., in Dhian Singhs case (supra) observed that the requirement of sanction including the application of ones mind has been held to be not necessary under sec. 20 of the Act for a prosecution. It was also observed that the decision in Parshottams case (supra) was not brought to the notice of the learned Judges who decided Dhian Singhs case (supra). The Division Bench of this Court in Sanwalas case overruled the objection regarding the application of mind stating that such a grievance does not survive in view of the observations in Dhian Singhs case (supra). 26. It may be humbly submitted that in Dhian Singhs case (supra) complaint was filed by the Municipal Board through the Food Inspector and the authority of the Food Inspector was not challenged and a presumption was raised regarding performance of official acts according to law. While dealing with the other contention that permission is necessary, his Lordships Hegde, J., observed that authority can be conferred long before the commission of a particular offence and this observation, in my humble opinion, refer to the conferment of power on any person by the three specified authorities by general or special order and the observations do not relate to the provision of written consent to be given by the three authorities or by the person so authorised by them. 27. Both the decisions of the Supreme Court, that is, Parshottam Kanaiyalals case and Dhian Singhs case cited supra came to be noticed by Honble Kansingh, J., in Mahadeo vs. State (15). In that case the Chairman, Municipal Council, Jodhpur, gave the written consent for prosecution of Mahadeo. 27. Both the decisions of the Supreme Court, that is, Parshottam Kanaiyalals case and Dhian Singhs case cited supra came to be noticed by Honble Kansingh, J., in Mahadeo vs. State (15). In that case the Chairman, Municipal Council, Jodhpur, gave the written consent for prosecution of Mahadeo. It was contended that the consent was not given after application of mind to the facts of the case and reliance in support of this contention was placed on the observation in Parshottam Kanaiyalals case (supra). On behalf of the State reliance was placed on the observations in Dhian Singhs case (supra). His Lordship Kan Singh, J., after noticing the observations in Dhian Singhs case as extracted in Sanwalas case, stated that the observations, no doubt, create an impression that under section 20 no question of applying ones mind to the facts of the case before institution of the complaint arises but it was further observed that the pointed question before their Lordships was whether the Municipal Board could be regarded as the complainant for the purposes of section 417 (3) Criminal procedure Code, and Parshottam Kanaiyalals case (supra) does not appear to have been cited before their Lordships. Therefore, it cannot be held that their Lordships had departed from what was said in the earlier case. His Lordship Kansingh, J., further observed as under:— "The generality of the observations in a case have to be taken to be circumscribed by the particular facts and circumstances of that and I am unable to come to the conclusion that their Lordships had done away with the requirement of the application of mind by the competent authority where it itself does not launch the prosecution, but has given a written consent to someone also to launch the prosecution. In my humble view, both the cases can be reconciled. In my humble view, both the cases can be reconciled. Where the competent authority itself launches the prosecution there could hardly be any question of applying its mind separately, because in the act of launching the complaint itself it will undoubtedly be applying its mind to the facts and circumstances of the case case when it is taking upon itself the task of bringing home the guilt to the accused in a court of law, but where the authority itself does not launch the complaint but gives its written consent of initiating the prosecution in favour of another, then before placing the responsibilities for the prosecution on another the authority giving that written consent must satisfy itself that this is a fit case to be carried to court and for that it has to peruse the evidence and come to the conclusion that there is a prima facie case for prosecution." 28, In Mahadeos case no authority was given to the Food Inspector to launch the prosecution and Ex. P/5 docs not say in so many words that Laxman-Singh was authorised to lodge the complaint, though it was observed that if a person, who is authorised by the local authority, lodges a complaint then it will be as if the local authority itself is lodging the complaint and the very act of filing the complaint will be tantamount to the application of the mind by the person authorised to launch the complaint. But, in that case there was nothing to show that Laxman Singh had any general or special order in his favour as an authority for lodging the complaint and there was nothing to show that the Chairman considered the papers and applied his mind. So on that basis it was held that the consent was not valid and the complaint cannot be said to have been validly instituted and as such the conviction was set aside. 29. In the light of the case law discussed above the written consent in the present case may be judged. So on that basis it was held that the consent was not valid and the complaint cannot be said to have been validly instituted and as such the conviction was set aside. 29. In the light of the case law discussed above the written consent in the present case may be judged. The written consent is as follows : - ^^lgefr foKfIr la[;k 21653 ,Q ¼160½ ,y-,l-th-@60 fnukad 23-1-61 }kjk iznRr kfDr;ksa dk iz;ksx djrs gq, eSa Bir Singh Choudhary F.I. dks /kkjk 20 ¼1½ ds vUrxZr Jh Naresh Kumar S/o Sant Lal ds fo:) mudh mijksDr fjiksVZ ds vuqlkj fizosUlu vkQ QwM ,MyVªsku ,DV] 1954 dh /kkjk 16 ¼1½ ¼,½ ¼th½ ¼i½@16 ¼1½ ¼,½ ¼th½ ¼ii½ dk mYya?ku djus ds dkj.k l{ke vnkyr esa eqdnek nk;j djus dh lgefr nsrk gwWA enuyky dkUMk B 16-12-70 v/;{k uxj ifj"kn] Jh xaxkuxj** It would appear from the above consent that the Chairman authorised the prosecution of the accused and the authority was conferred on Shri Veer Singh Choudhary, Food Inspector, by name, Though offences have also been specified in the consent, but along with that, what is not worthy is that authority is conferred on the Food Inspector Veer Singh Choudhary to prosecute the accused. It would appear from the consent that Veer Singh was competent to institute the complaint, as he was authorised by the Chairman, There is no dispute that the Chairman could not authorise the Food Inspector. No such contention has been advanced before me. The contention, which has been advanced before me is that the consent shows that there was no application of mind as particular offence was not specified in the consent. There was no offence under sec. 16(1) (a) (g) (i) or 16 (1) (a) (g) (ii). (g) ought to have been deleted and 16 (1) (a) (g) (ii) should also have been deleted. Non-deletion or striking out of these provisions shows that there was no application of mind. Firstly, in my opinion, it is a prosecution by a person who is authorised by the Chairman by a special order. (g) ought to have been deleted and 16 (1) (a) (g) (ii) should also have been deleted. Non-deletion or striking out of these provisions shows that there was no application of mind. Firstly, in my opinion, it is a prosecution by a person who is authorised by the Chairman by a special order. It cannot be said that (he institution of the complaint by the Food Inspector was bad as the application of the provision regarding prosecution with the written consent of specified authority or person does not arise in view of the fact it is a prosecution by the person authorised by the specified authority, as was considered in Mahadeos case in paras 12 and 14. Consequently, non-striking of the aforesaid irrelevant provisions, in my opinion, does not vitiate the consent. The prosecution is permitted by the Chairman on the basis of the report of the Public Analyst and prosecution under section 16 (1) (a) (i) could be launched. Even when the consent is partly correct with regard to the offence specified in it, the whole of the consent cannot be rendered as invalid. Reference in this connection may be made to the case Gori Shanker vs. State of Rajasthan (16). In that case the Chairman gave the written consent to launch prosecution of the accused Gori Shanker and the offence stated in the consent was under Section 20. There was no offence provided under section 20 It was observed that the con-sent in that case was given by the proper authority and it was not necessary to specify the offence in the sanction. For the observations in Parshottam Kanaiya-Jals case (supra) it was stated that this is no authority for the proposition that the specific offence must be mentioned. It is an authority which lays down that the name of the complaint need not be mentioned in the written consent. 30. The learned counsel for the accused-respondent referred to notes of Kamla Prasad Agarwala vs. Sarat Chandra Borah (17), wherein it was held that when written consent for prosecution is required, the written consent must be specific about the offence and the offender. No vagueness regarding the offence or the offender may be allowed to remain in the written consent or, in other words, if a written consent or the sanction is not specific, the prosecution may not have the jurisdiction to prosecute. No vagueness regarding the offence or the offender may be allowed to remain in the written consent or, in other words, if a written consent or the sanction is not specific, the prosecution may not have the jurisdiction to prosecute. But so far as the present case is concerned Gori Shankars case (supra) of this Court will govern the matter and further this question ceases to be of much importance in view of what I have discussed above that it was a prosecution by a person authorised by the specified authority by special order. 31. In the light of the foregoing discussion, in my opinion, the consent in question does not suffer from any infirmity and cannot be held to be invalid. 32. On behalf of the accused-respondent it was contended that the acquittal of the respondent should not be set aside in view of the fact that rule 14 of the Prevention of Food Adulteration Rules was not complied and it has not been proved by the prosecution that after the purchase of the sample the milk was put into three clean dry bottles. He referred to the statement of the Food Inspector Shri Veer Singh Chaudhary who has simply stated that the sample was put into the three bottles in equal quantity. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles. In support of his contention the learned counsel referred to M. Mohammed vs. State of A. P. (18). 33. The learned counsel for the appellant submitted that no cross-examination was directed on this aspect of the case in the statement of the Food Inspector and no such objection was taken. 34. In this connection it may be stated that this argument was advanced before the Magistrate that compliance of rule 14 was not made, but it appears that this objection was not dealt with by the learned Magistrate. From the statement of the Food Inspector it is not proved that the sample was put into clean dry bottles for purposes of analysis. It was the duty of the prosecution to prove the compliance of rule 14 and it was not necessary for the accused to fill in the lacuna left by the prosecution in the statement of the Food Inspector by putting any question in cross-examination. It was the duty of the prosecution to prove the compliance of rule 14 and it was not necessary for the accused to fill in the lacuna left by the prosecution in the statement of the Food Inspector by putting any question in cross-examination. In the case cited by the learned counsel for the accused it has been held that the rule 14 is mandatory and not directory. It is the duty of the prosecution to prove by leading positive evidence that the bottles were clean and dry before the sample was poured into them. It was further observed that it is the duty of the prosecution to prove beyond reasonable doubt, all the ingredients or provisions that are to be proved as per law and specially the provisions which are mandatory in nature have got to be proved beyond reasonable doubt. It cannot be contended by the prosecution that the statement of the accused signed by him, would show that the bottles were dry and clean, and with this statement and signature the prosecution is absolved of its duty to prove that the provisions of R. 14 were complied with. It may be stated that in the light of the above observations, signatures of the accused on Ex. P/2 would be of no consequence wherein it is printed that the bottles were clean. No smell was emanating from them at the time when the sample was taken. This printed matter also does not satisfy the requirements of rule 14. The bottles need not only be clean but should also be dry. Moreover, as observed in the aforesaid case, there should be proof that the sample was poured in clean dry bottles. Veersinghs statement does not satisfy the requirement of rule 14 and as such on this basis the acquittal of the respondent cannot be set aside. 35. In view of my finding that rule 14 has not been complied with I need not go into the question of rejection of the prayer of the accused under section 13 (2) of the Prevention of Food Adulteration Act, though it may be stated that the application was highly belated and no useful purpose would have been served in sending the sample to the Central Food Laboratory. 36. 36. In the result, this appeal does not succeed in view of the non-compliance of rule 14 of the Food Adulteration Rules, so the appeal is hereby dismissed.