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Allahabad High Court · body

1983 DIGILAW 247 (ALL)

Habib v. State of U. P.

1983-03-31

S.K.KAUL

body1983
JUDGMENT S.K. Kaul, J. This is a revision by Habib against his sentence and conviction to undergo six months rigorous imprisonment as well as a fine of Rs. 1000 or in default to undergo three months rigorous imprisonment more. Brierly stated, the prosecution story is that Food Inspector Shri B.N. Agnihotri (P.W. 1) found the present revisionist selling milk on Sept. 16, 1978 at about 6.30 a.m. at Dudwa crossing. Suspecting the milk. to be adulterated, he took a sample of the milk to the tune of 660 mililitres. Relevant documents namely notice (Ext. Ka1) receipt of payment of price which was Re. 1 48 paise (Ext. Ka2) were prepared. Formalin was added in the sample milk and this sample was divided into three parts and was put in three separate phials which were properly stoppered and sealed, one of the phials was sent to the Public Analyst for Report. The report of the Public Analyst was that this milk contained 3.8 percent of milk fat and 7 percent of nontatty solids. Thereafter the Food Inspector obtained sanction of the Chief Medical Office: (Ext. Ka5) and filed a complaint, in the Court of the Magistrate who took cognizance over the same. The accused was asked to stand his trial under Section 7|16 of the Prevention of Food Adulteration Act. The defence of the accused was complete denial. The learned Magistrate held that the prosecution story was fully made out and as such he sentenced and convicted the accused as above. The accused filed an appeal but remained unsuccessful and that is how come up to this Court by way of revision. The learned counsel for the revisionist admitted before the that the sanction accorded by the Chief Medical Officer in this case was not valid and proper or legal sanction and in that view of the matter the accused should be acquitted. He has not challenged the findings arrived at by the two courts below on facts. However, I may note that in this case Akhalaq Ali and B.N. Agnihotri have been examined as prosecution witnesses and they had stated on oath that on the relevant date, time and place they had found the accused selling milk. Sample of milk was taken from his possession for which price was paid and the relevant documents noted above were prepared. Sample of milk was taken from his possession for which price was paid and the relevant documents noted above were prepared. The report of the Public Analyst clearly shows mat the milk is adulterated being less than the prescribed standard in nonfatly solids. The question arises whether proper sanction was accorded by the Chief Medical Officer in this case or not. The document containing the sanction is Ext. Ka5. This document is a cyclostyled document in which there are certain gaps for filling up the details of the case. The document shows that the Chief Medical Officer signed it in a different ink and curiously enough no date is put by the Chief Medical Officer underneath his signatures. The blanks in this document are filled upon a different ink. The Food Inspector Shri Agnihotri admitted in crossexamination that Ext. Ka5 was, in a cyclostyled form containing gaps and that these gaps were filled up by some clerk in the office of the Chief Medical Officer he confessed that except the signature of the Chief Medical Officer there was nothing in writing of the Chief Medical Officer himself on this document. He further admitted that there was no date mentioned in this document as to on which date the relevant sanction was accorded. The Chief Medical Officer was not examined in this case at all. This Court, times out of number, has been deploring the practice of such an important document like the sanction to be prepared in such a casual manner. It is to be noted that when the law prescribed that before a complaint was moved the Chief Medical Officer or the authorised officer in this behalf had to accord sanction, it was expected that sanctioning, authority would take this provision of law with all seriousness and would himself make no effort to see the documents that are normally put before him at the time when he accords sanction. If the sanctioning authority allows a cyclostyled document to be prepared before hand and also allows the gaps to be filled up by a clerk in the office and merely signs the document, the impression that is created is that such document was put up before the sanctioning authority in the routine manner and he signed the document without applying his mind again in a routine manner. In such cases it is the duty of the prosecution to examine the sanctioning authority who has to state on oath that he applied his mind to the facts of the case and then had accorded sanction for the prosecution. In this connection several cases can be referred of this very Court. Indeed, it was expected that after the pronouncements of this court in respect of these cyclostyled documents, an attempt would be made by the department concerned to take this document in all seriousness and impress upon the Chief Medical Officer or the authorised officer in that behalf to apply his mind seriously in the question of sanctioning the prosecution It appears that the pronouncements of this Court have had no effect but for the carelessness, negligence or indifference of the department concerned most of the cases relating to adulteration are being acquitted on this very gound alone. In the case of G. P Asthana, Chief Food Inspector, Barabanki v. Shri Kishan and others (1979 L.L.J. 44.), Mathur, J. observed that: "The consent order was cyclostyled form hi which blank spaces had been filled up by the Food Inspector. In these circumstances it was held by this Court that the filling up of blank spaces not by the sanctioning authority but by the Food Inspector indicated that the sanctioning authority itself did not apply its mind to the facts of the case and, therefore, there was no consent as contemplated under Section 20 of the Act which was a condition precedent to the launching of prosecution. In the present case the complaint and the consent order are not on one and the same sheet of paper. The consent order Ext. Ka6, is a cyclostyled proforma which had blank spaces. These blank spaces have beenfilled up in an ink different from the ink with which the sanctioning authority has appended his signatures. It is common case that the blank spaces had not been filled up by the sanctioning authority himself. The sanctioning authority itself did not enter the witness box to prove that it applied its own mind to the facts with reference to which the prosecution was sought to be sustained. The question whether the consent contained in Ex. Ka6 is valid for the purpose of Section 20 of the Act, has to be decided with reference to the contents of Ext. The question whether the consent contained in Ex. Ka6 is valid for the purpose of Section 20 of the Act, has to be decided with reference to the contents of Ext. Ka6 alone." In this case the observations of Bakshi, J. in the case of Krishna Lal v. State (1978 A. C. C. 256.) were also referred. There is another case of Sewa Ram v. State (1979 A. C. C. 254.), in which Saksena, J. observed that: "Where details in the form filled in are in one type of ink whereas signatures of sanctioning authority are in another type of ink, such circumstances create a reasonable doubt whether sanctioning authority has at all applied his mind. It is the duty of the prosecution to produce Medical Officer of Health to explain the doubts and infirmities arising therein. If it is not done the sanction cannot be held to he valid." In another case of Angan Lal and another v. State (1980 All India Food Aduletration Journal, 14.), Sexena, J. again observed that: "......as the sanction is on a printed form all the columns of which were filled up by the Food Inspector. There is not a word in the hand writing of the District Medical Officer of Health. He simply affixed his signatures at the bottom in a different ink. The District Medical Officer of Health was not examined in this case to prove that he had gone through all the relevant papers before according his sanction. In these circumstances' the sanction could not be held to be valid." In this case as well the observations of Bakshi, J. (supra) were relied upon. I am in respectful agreement with the observations noted above. In this case as well it is clear that but for signing this document the Chief Medical Officer did nothing. It was a cyclostyled form. Gaps were filled up by a clerk in the office of the Chief Medical Officer as stated by the Food Inspector. The Chief Medical Officer did not even put the date underneath his signatures and he was also not examined in this case by the prosecution to show that he had applied his mind before according sanction. In this situation, it is obvious that this document cannot be deemed to be a valid sanction and that being so the conviction of the accused cannot be maintained. In this situation, it is obvious that this document cannot be deemed to be a valid sanction and that being so the conviction of the accused cannot be maintained. As a result I would allow the revision, set aside the sentence and conviction awarded to the accused and be acquitted of the same. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.