JUDGEMENT The petitioners Nos. 2 and 3, partners of petitioner No. 1, which is a partnership firm dealing in foodgrains, were each convicted and sentenced to nine months' R.I. and a fine of Rupees 1,000/- under Ss.7 and 16 of the Prevention of Food Adulteration Act, 1954, to be hereafter referred as 'the Act'. The firm was also convicted and sentenced to pay a fine of Rs. 1,000/-under the aforesaid sections. In appeal that was preferred the learned Sessions Judge merely reduced the sentence imposed on petitioners Nos. 2 and 3 from nine months to six months. Being aggrieved by the aforesaid decision, the petitioners have now filed this present revision. 2. The following facts are not in dispute. On 17-2-1975 Shri Purshottam Sinari, Food Inspector, PW 1, attached to the Directorate of Health Services, Panaji, visited the shop of the petitioners and purchased 750 gms. of Jawar from petitioner No. 2A. All the legal formalities were duly observed in the matter of purchase and seizure of the goods. The Public Analyst analysing the sample sent to him reported that it contained damaged grains in excess of the permissible limit. After obtaining Sanction from the Drugs Controller, P.W. lodged a written complaint and this is how the petitioners were placed on trial and finally convicted and sentenced as stated above. 3. At the forefront of his argument, the learned counsel for the petitioners has submitted that the prosecution of the accused was without proper sanction in the sense that there is nothing on record to show that the sanctioning authority had applied its mind which is a basic requirement under S.20(1) of the Act. It is not in dispute that the Drugs Controller of the Directorate of Health Services, Panaji, is the authority to sanction prosecution. Exh. P-6 which is a copy of the order sanctioning the prosecution reads as follows :- No. DHS/D-C-PFAA-76/89, Govt. of Goa, Daman and Diu, Directorate of Health Services, Office of the Drugs Controller, Panaji-Goa. Dated : 23rd April, 1975. 3 Vaisakha, 1897. ORDER In exercise of the powers vested in me under Sec. 20 of the Prevention of Food Adulteration Act, 1954, read with Government Order No. PHD/33(1)/74-PFA-I, dt. 2-1-1975, published in the Govt. of Goa, Daman and Diu, Directorate of Health Services, Office of the Drugs Controller, Panaji-Goa. Dated : 23rd April, 1975. 3 Vaisakha, 1897. ORDER In exercise of the powers vested in me under Sec. 20 of the Prevention of Food Adulteration Act, 1954, read with Government Order No. PHD/33(1)/74-PFA-I, dt. 2-1-1975, published in the Govt. Gazette, Series II, No. 41, dated 9-1-1975, I Desiderio Costa Frias, Drugs Controller for Goa, Daman and Diu, hereby give my consent for the prosecution of M/s. Bhagat Stores and its partners, situated near Municipal Market, Panaji, Goa, for an offence alleged to have been committed by him/them as regards selling and storing adulterated food 'Jawar' on or about 17-2-1975 in contravention of S.7 punishable under Ss.16 and 17 of the said Act. Sd/- (Desiderio Costa Frias) Drugs Controller, Directorate of Health Services." There is nothing therein to indicate that the evidence in the case and specially the report of the Public Analyst had been perused by the Drugs Controller before sanctioning Exh. P-6, which more or less appears to be a mechanical act of the Drugs Controller. In the evidence of PW 1 the Food Inspector has also not breathed a word that he had placed evidence and specially the report of the Public Analyst before the Drugs Controller. But strangely enough the learned advocate while cross-examining him elicited that he had submitted the whole file for the purpose of obtaining sanction. It was unwise on the part of the defence counsel to have put a question regarding placing of evidence when the witness had said nothing in his examination-in-chief. Be that as it may, the answer given by the witness does not, however, clearly, establish as to the materials that he placed before the Drugs Controller. His evidence that he submitted the whole file, is of no avail unless it is further shown that he had submitted the public analyst's report. Before giving written sanction it is the duty of the competent authority to apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offence. It is also required of the authority to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is uncalled for because sanction required under S.20 is not an empty formality. It is also required of the authority to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is uncalled for because sanction required under S.20 is not an empty formality. In AIR 1961 SC 1 : (1961 (1) Cri LJ 170). Their Lordships had occasion to consider the scope of S.20(1) of the Act. I may now read the relevant observations of their Lordships insofar as they are relevant (at p. 172 of Cri LJ) : ".....................In the first place, the reason of the Rule could not suggest or imply such a condition. The rule has undoubtedly 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 ........................" It is thus clear from the above observation that before giving written sanction the concerned authority should apply its mind to the facts of the case and satisfy itself that there is a prima facie case to prosecute the offender in the Court. It should also consider the reasonableness and propriety of the prosecution that is to say that the case is not frivolous and deserves to be presented to the Court for trial. 4. I am conscious of the observation of their Lordships in AIR 1970 SC 318 : (1970 Cri LJ 492) which undoubtedly may create an impression that under S.20 no question of applying one's mind to the facts of the case before the institution of the complaint arises. The observations are as follows (at p. 496 of Cri LJ) :- "Under Sec. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under the provision can be conferred long before a particular offence has taken place. It is a conferment of an authority 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. For the reasons mentioned above we are unable to accept the contention of the accused that the Municipal Board of Saharanpur was not competent to file the appeal". In my opinion the view taken in AIR 1970 SC 318 : (1970 Cri LJ 4921 and the view taken in AIR 1961 SC 1 : (1961 (1) Cri LJ 170), can be reconciled. In fact an occasion arose for such reconciliation in the case of Mahadeo v. State of Rajasthan (1971 Cri LJ 1768) (Raj). I may now read the observation made in that regard (at p. 1771) : "The above observation, no doubt, creates an impression that under S.20 no question of applying one's mind to the facts of the case before the institution of the complaint arises, but it has to be remembered that the pointed question before their Lordships was whether the Municipal Board could be regarded as the complainant for the purposes of S.417(3), Cr. P.C. The case of AIR 1961 SC 1 does not appear to have been cited before their Lord ships. Therefore, it cannot be held that their Lordships had departed from what was said in the earlier case. The generality of the observations in a case has to be taken to be circumscribed by the particular facts and circumstances of that case 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 else 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 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 the 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. In the present case there is no authority given under Sec. 20 of the Act to the Food Inspector to launch the prosecution I have quoted in extenso the order Ex. P/5 and it does not say in so many words that Laxman Singh is authorised to lodge the present complaint which he had done. The sanctioning Chairman, therefore should have complied with the requirements of law as interpreted by their Lordships in AIR 1961 SC 1 : (1961(1) Cri LJ 170) namely, that he should have applied his mind to the facts of the case and satisfy himself that a prima facie case existed for the alleged offender being put up before a court." 5. As in Mahadeo (1971 Cri LJ 1768) (Raj)(supra), so also in the present case there is no authority given under S.20 of the Act to the Food Inspector to launch prosecution. The Food Inspector gets authority or power to file the complaint if the Drugs Controller authorised to give written consent, accords such consent. Being in respectful agreement with the observations of J. Kan Singh, as quoted above, I would adopt the same reasoning to distinguish the case of D. Singh (1970 Cri LJ 492)(SC) (supra). 6. I have quoted the sanction order, Exh. P-6, and it is found that there is nothing therein to show that the sanctioning authority had applied its mind to the evidence of the case. 6. I have quoted the sanction order, Exh. P-6, and it is found that there is nothing therein to show that the sanctioning authority had applied its mind to the evidence of the case. No attempt has been made by the prosecution during the trial to remove the lacuna by bringing in evidence through the Food Inspector that he had placed all the evidence including the analyst's report before the Drugs Controller and after going through the said papers, he gave his consent for the prosecution of the offender. His statement in cross-examination that he had submitted the whole file does not carry the case any further for it is not known what papers the said file contained. The sanctioning authority not having complied with the requirements of law as interpreted by their Lordships in AIR 1961 SC 1 : (1961 (1) Cri LJ 170), the complaint cannot be said to have been validly lodged. 7. The next submission of the learned counsel for the petitioner is that in view of the unusual and unexplained delay in analysing the sample, the two Courts should have refused to place any reliance on the Chemical Analysis report for the purpose of holding that the article of food was adulterated. He has particularly drawn my attention to the view of the learned Sessions Judge who has found fault with the accused for not having put any question to the Public Analyst that the delay affected the analysis. According to him it was for the prosecution to prove that the delay has not affected the analysis. 8. It is to be seen that the date of analysis is not mentioned in the report which is dated 29-3-1975. According to the finding of the learned Sessions Judge, the sample was analysed 39 to 40 days after its collection. It has however not considered this delay fatal firstly on the ground that the period of 39 to 40 days cannot be considered as a big gap and secondly there was no suggestion "by the accused in cross-examination of the Public Analyst that the condition of the sample was not the same from the date of its collection to the date of its analysis." I have no manner of doubt that the approach of the learned Sessions Judge is not correct. Although nothing has been mentioned in the Rules within what time the Public Analyst should examine the sample sent to him for analysis, to obviate the possibility of the changes taking place in the constituents of an article of food, it is absolutely necessary to get the sample examined at the earliest possible time and if there is some delay it is incumbent on the prosecution to prove that the delay has not affected the sample. As per the report Ex. P/6, there was excess percentage of damaged grain in the sample. The permissible percentage by weight is 5% but the percentage found was 15.7%. Besides, the sample was also found affected by fungus. If the sample remained unexamined or unanalysed for a period of 40 days there is nothing unlikely in the sample having been infested with fungus during that period. If the sample came to be infested with fungus after it was taken, the accused cannot certainly be found to be guilty of selling adulterated article of food infested by fungus. Who is to prove that the article was not infested with fungus during the period it remained unexamined and analysed ? There can be no doubt that the onus to prove it lies on the prosecution and certainly not on the accused. The learned Sessions Judges has therefore gone wrong when he has found fault with the accused for not having put any question to P.W. 3 during cross-examination on this score. It is entirely for the prosecution to prove that the delay has no relation to the incriminating excess percentage in the damaged grains and their infestation with fungus. It is surprising to note that no attempt has been made by the prosecution to get this fact explained by P.W. 3., or by any other witness. It is no doubt true that adulteration of food articles is an anti-social activity. It is a vice which is becoming rampant and highly deleterious to public health and therefore wherever possible an attempt should be made to construe the provisions of law in this regard a little liberally so that such activities are curbed. The Courts of law do owe undoubtedly a duty to further the interest of the Society. It is a vice which is becoming rampant and highly deleterious to public health and therefore wherever possible an attempt should be made to construe the provisions of law in this regard a little liberally so that such activities are curbed. The Courts of law do owe undoubtedly a duty to further the interest of the Society. But at the same time one should not forget that no prejudice or injustice is caused to the persons being provided with for everybody is entitled to a fair and just trial in accordance with law. I am also unable to appreciate how the long gap of 40 days is immaterial in the absence of any reason as signed by the learned Sessions Judge. On the other hand, it is common knowledge that food grains, such as, wheat, rice, jawar etc. get damaged by fungus if allowed to remain unused for a month or so. Had there been some explanation the position would have been different. But in the absence of any explanation whatsoever, it is doubtful to hold that the sample did not get damaged during the period it remained unattended. In the view that I have taken I have to differ from the finding of the learned Sessions Judge on this score and I am inclined to give the accused the benefit of doubt. In other words it is difficult to hold with certainty that the sample did not get damaged during the aforesaid period of 40 days. 9. The next piece of argument advanced by the learned counsel is that the Food Inspector had no power to institute the complaint. According to him, the complaint should have been lodged by the Drugs Controller himself. I however, find no substance in it. Further I say that in the notification in which the Drugs Controller has been authorised to lodge complaint he has also been authorised to give his consent to somebody else to lodge the complaint. The relevant notification is reproduced below :- No. PHD/33(1)/74-PFA-I "In exercise of the powers conferred in Sec. 20 of the Prevention of Food Adulteration Act, 1954 (XXXVII of 1954) the Lt. Governor of Goa, Daman and Diu hereby authorises Dr. The relevant notification is reproduced below :- No. PHD/33(1)/74-PFA-I "In exercise of the powers conferred in Sec. 20 of the Prevention of Food Adulteration Act, 1954 (XXXVII of 1954) the Lt. Governor of Goa, Daman and Diu hereby authorises Dr. D'Costa Friars, Drugs Controller of Goa, Daman and Diu to institute and to give his written consent for instituting prosecutions for offences under the Act in all the specified local areas in the Union Territory of Goa, Daman and Diu. By order and in the name of the Lt. Governor of Goa, Daman and Diu. P. Noronha, Under Secretary (Health) Panaji, 2-1-1975." 10. On the terms of S.20(1) a prosecution could be instituted with the written consent not merely of the State Government but also of a local authority or a person authorised in this behalf by the State Government or a local authority.Where prosecutions are filed on the basis of the written consent granted by the competent person or authority, the specification of the name of the complainant is not required under the statute. 11. It has also been contended on behalf of the petitioners that the prosecution against the accused 2 and 3 is bad for want of mention of their names in the sanction order. I find not much force in it. In the sanction for the prosecution the name of the partnership firm has been mentioned. It is not disputed that the partners along with the firm are liable for prosecution. The non-mention of the names of the partners has not caused any prejudice. Hence this defect cannot be treated as fatal. 2. To sum up, my findings are that the sanction or written consent accorded to the prosecution of the accused by the Drugs Controller is defective in the sense that the Drugs Controller had not applied his mind to the case, while giving consent. On account of the above defect, it cannot be said that the complaint in the case had been validly instituted. In view of the inordinate and unexplained delay in the analysis of the sample, it is doubtful to reach the conclusion with certainty that the sample did not get damaged during the period the same remained unattended in the laboratory where it had been sent for analysis. In view of the inordinate and unexplained delay in the analysis of the sample, it is doubtful to reach the conclusion with certainty that the sample did not get damaged during the period the same remained unattended in the laboratory where it had been sent for analysis. The benefit arising out of this doubt must go to the accused with the result that it is not possible to hold that the petitioners sold adulterated jawar to PW 1 on 17-2-1975. Consequently the charge fails. 13. For the aforesaid reasons, the conviction and sentence of the petitioners are not sustainable. They are entitled to an acquittal. The appeal (revision ?) is accordingly accepted. The decisions of the Courts below are hereby set aside. The petitioners are discharged of any bonds executed by them. Revision allowed.