State of Mysore v. Danjaya — 1999 DIGILAW 2639 (MAD)

Judgment Tukol, J.- This is an appeal by the State against the order of acquittal passed by the District Magistrate, South Kanara, Mangalore, acquitting the accused of the offence punishable under section 16(1)(a) read with section 7 of the Prevention of Food Adulteration Act, 1954. Briefly, the story of the prosecution is that on 15th November, 1961, the accused Dhanenjaya sold milk to the Food Inspector Vincent Silva (P.W.2) just near the house of Nazareth (P.W.1) at Karengalpady Road in Mangalore Town. Mr. Siva took the milk to the Varandah of Mr. Nazareth, divided the same into three parts and put it into three bottles which he corked and sealed in the presence of the accused and gave him one of the sealed bottles. He sent one bottle to the Public Analyst, who certified that the milk was adulterated and contained 60 per cent of water. The accused was then charge-sheeted for selling adulterated milk. On the evidence, the learned Magistrate took the view that the prosecution had not been successful in establishing its claim that the Food Inspector had taken the sample from the accused and sampled the same in conformity with section 11 of the Act. As a result of this finding, he recorded an order of acquittal by his judgment, dated 23rd April, 1962. Being aggrieved by this decision, the State has preferred this appeal and the learned Additional Assistant Advocate General has contended that the grounds recorded by the Magistrate for acquitting the accused were most unreasonable and inconsistent with the evidence on record and that his findings deserved to be interfered with in appeal. On the other hand, the learned Advocate for the accused has tried to support the judgment by contending that the prosecution had failed to establish that the milk sold by the accused to the Food Inspector was intended for sale. It has also been contended that the Food Inspector who had filed the complaint had not been validly authorised as required by section 20(1) of the Prevention of Food Adulteration Act, 1954, and that the prosecution instituted by him was bad in law. Dealing with the factual contentions urged on behalf of the respondent, it would be evident from the deposition of Nazareth (P.W.1) and Vincent Silva (P.W.2) that the Food Inspector purchased milk from the accused on 15th November, 1961 at about 8-30 A.M. and paid him 56 nP. Dealing with the factual contentions urged on behalf of the respondent, it would be evident from the deposition of Nazareth (P.W.1) and Vincent Silva (P.W.2) that the Food Inspector purchased milk from the accused on 15th November, 1961 at about 8-30 A.M. and paid him 56 nP. for 4½ Kudthe's of milk. Though in his statement under section 342, Criminal Procedure Code, the accused denied to have sold any milk to the complainant, his Advocate has conceded that the milk had been sold, but his contention is that the milk that was sold to P.W.2 was not intended for sale. It is to be found in the evidence of Nazareth that the accused is a milk-vender who had gone to his house that morning and sold him milk at about 8-30 a.m. It is also in his evidence that the accused had a milk-can hanging against His cycle and the milk that was sold to P.W.2 was from the can through a tap, in a mug. The Food Inspector has deposed that when the accused was delivering milk in the house of Nazareth at about 8-30 a.m. on 15th November, 1961, they were standing outside and that when the accused went out they asked him for 4½ Kudthe's of milk and that the accused agreed to sell. He has also deposed that he paid 56 nP. as the price of milk, which the accused accepted. The circumstances under which the milk has been purchased by the Food Inspector leave absolutely no doubt that the accused who is a professional milk-vendor, had brought milk in the milk-can and sold 4½ Kudthes to Mr. Silva on accepting the normal price. Besides, Exhibit P-1 is the acknowledgement receipt passed by the accused, wherein he has stated that (he milk that he had sold was a mixture of cow's milk and buffalo's milk, that he had. sold it for the price mentioned therein and that he had been duly notified that the milk that had been purchased was intended to be sent to the Public Analyst, for analysis. This receipt has been signed by the accused in English. It is, therefore, evident from the circumstances coupled with the recital of the acknowledgment receipt passed by the accused himself, that the milk that he sold was out of the can from which he had already delivered milk to Mr. This receipt has been signed by the accused in English. It is, therefore, evident from the circumstances coupled with the recital of the acknowledgment receipt passed by the accused himself, that the milk that he sold was out of the can from which he had already delivered milk to Mr. Nazareth and that it was out of the quantity intended for sale even to the others. There is absolutely no evidence on record to point out that the milk that was in the possession of the accused was intended for any other purpose, or for his domestic use. We are therefore unable to entertain the contention that the milk was not intended for sale. It has not been disputed in the Court below that the sample bottle that was sent to the Public Analyst was one of the bottles that had been corked and sealed in the presence of the accused. As observed above, the statement of the accused is; one of complete denial, with the result that it is very difficult to say whether he had any defence at all against the evidence adduced against him before the Court. The certificate of the Public Analyst is Exhibit P-5. The contents of standard cow and buffalo milk have been specified at items A-11.01.01 and A-11.01.02 respectively, of Appendix B (Page 295 of Sethi's Commentary on Prevention of Food Adulteration Act, Third Edition, 1961) and read as follows: “A. 11.01.01 Cow milk shall contain not less than 3.5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent, and in Punjab and Pepsu where it shall be not less than 4.0 per cent. The milk solids other than milk fat shall not be less than 8.5 per cent.” “A. 11. 01. 02. Buffalo milk shall contain not less than 5.0 per cent of milk fat except in Delhi, Punjab, Pepsu Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall be not less than 6 per, cent. The milk solids other than milk fat shall not be less than 9 per cent.” According to the contents of the report of the Public Analyst (Exhibit P-5) the milk sent for analysis contained: “Milk fat % .. 2.5 Milk Solids not fat % .. 3.6 Added Water % .. The milk solids other than milk fat shall not be less than 9 per cent.” According to the contents of the report of the Public Analyst (Exhibit P-5) the milk sent for analysis contained: “Milk fat % .. 2.5 Milk Solids not fat % .. 3.6 Added Water % .. 60.0.” It would be evident from Exhibit P-5 that the milk fat and ‘milk solid not fat’ contents of the milk sold by the accused to the Food Inspector are much less than the standard contents either of cow's milk or buffalo milk and also less than the mean of the two kinds of milk mixed together. This apart, Rule 44(b)clearly prohibits the sale of milk ‘which contains any added water’. The learned Mag strate has observed in paragraph 7 of his judgment that the evidence of Nazareth showed that before sampling, a notice in the prescribed form was given to the accused and that the milk was filled equally in three clean, dry empty bottles. He has also come to the conclusion from the evidence of Silva that the corked the bottles, sealed and labelled then and there after one of the bottles was given to the accused. With these conclusions and with the certificate of the Public Analyst, which under section 13(5) of the Act can be used as evidence of the facts stated therein, the conclusion that the accused had sold milk in contravention of section 16(1)(a)was irresistable. The learned Magistrate was, however, of the view “that the prosecution would have done more justice to the case by producing the Health Officer as a witness.” We are unable to understand this reasoning of the learned Magistrate. The fact that the milk sold by the accused was adulterated milk and did not conform to the presecribed standard had been proved by the certificate of the Public Analyst. The fact that the provisions of law regarding purchase of milk, sampling and bottling the same had been satisfied, has been amply established by the evidence of Mr. Nazareth and Mr. Silva. No further evidence is needed to bring home the guilt of the accused. The learned Magistrate seems to have strained somehow to find out a reason for recording an order of acquittal. The judgment is legally unsupportable and deserves to be set aside. Nazareth and Mr. Silva. No further evidence is needed to bring home the guilt of the accused. The learned Magistrate seems to have strained somehow to find out a reason for recording an order of acquittal. The judgment is legally unsupportable and deserves to be set aside. It has been argued on behalf of the respondent that the Food Inspector was not competent to institute the prosecution since the authorisation relied upon by the prosecution did not satisfy the requirements of section 20(1) of the Act. That section reads thus: “20. (1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or local authority. As evidence of compliance with this section, the prosecution produced a copy of the Resolution of the Municipal Council, Mangalore, Exhibit P-7 passed as a meeting held on 10th July, 1959. The relevant portion reads as follows: “The Municipal Council authorised all the Food Inspectors of this Municipality to institute prosecutions for the offences under sub- section (1) of section 20 of the Prevention of Food Adulteration Act 1954.” What is urged against this Resolution authorising the Food Inspectors to institute prosecutions under the Act is that a general authorisation of the type envisaged by the Resolution would not satisfy the requirements of section 20(1) of the Act since the manifest object of the legislation in imposing this restriction is not only to see that some responsible person considers the facts of each case and satisfies himself before filing a complaint that there was a prima facie casen for lauching a prosecution. According to the submission of the learned Advocate, a general authorisation of the type that we have in the case is likely to be abused by Food Inspectors and would frustrate the very object of the legislation. In State of Bombay v. Parshottam Kanaiyalal1 the scope of section 20(1) of the Act and the nature of authorisation contemplated by it came up for consideration by their Lordships of the Supreme Court. Their Lordships were dealing in that case with a consent that had been given by the Chief Officer of the Baroda Municipality to file a complaint against the accused who had been charged for selling adulterated milk. Their Lordships were dealing in that case with a consent that had been given by the Chief Officer of the Baroda Municipality to file a complaint against the accused who had been charged for selling adulterated milk. On facts, it was not disputed that there was a valid consent in writing given by the Chief Officer who had been duly authorised in that behalf by the Baroda Municipal Borough to institute proceedings under the Act. The objection taken against the validity of the consent was that the person to whom consent had been given had not been named. The complaint had been actually filed by the Food Inspector with the consent of the Chief Officer. The Municipality had invested the Chief Officer with the power to give consent in writing for launching prosecutions under the Act. The plain grammatical meaning of the section is that the written consent may be of the State Government or a local authority, or a person authorised in that behalf by the State Government or local authority. In our view, under this section a prosecution can be instituted (1) by the State Government; (2) by a local authority; (3) by a person authorised in that 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. It was contended before Their Lordships that the consent given in writing for filing a complaint should name the complainant. In repelling this contention their Lordships observed: “-. To start with, the Statute does not in terms prescribe that the complainant shall he 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 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. 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 the written consent does not, in our opinion, follow.” Their Lordships further observed: “Omitting for the moment ‘the State Government’ and the ‘local authority’ which are specified in the provision as competent by themselves to initiate-prosecutions, persons ‘authorised by’ thee two authorities are further included. The expression ‘person authorised in this behalf obviously refers to a named person who is so authorised.” On the strength of the last sentence, it has been argued by the learned counsel for the respondent that the person authorised should be named. In this connection, reference may be made to section 15 of the General Clauses Act, 1897 (Central Act X of 1897) which lays down: “Where, by any Central Act or Regulation, a power to appoint any person to fill any office or execute any function is conferred, when, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office.” If this section is therefore read with section 20(1) of the Prevention of Food Adulteration Act, it would be clear that the ‘person to be authorised’ under section 20(1) could be a person who is authorised by virtue of his designation or the office that he holds. In this connection, it may be pointed out that in the last portion of paragraph 13 of their judgment, their Lordships have clearly indicated the distinction between the person who institutes a prosecution with the consent of the authority and a person who is authorised under the section to file a complaint himself. In this connection, it may be pointed out that in the last portion of paragraph 13 of their judgment, their Lordships have clearly indicated the distinction between the person who institutes a prosecution with the consent of the authority and a person who is authorised under the section to file a complaint himself. The section obviously contemplates that a prosecution can be instituted by a person with the consent of the State Government, local authority, or a person duly authorised under that section as also by a person with the written consent of the person who is authorised in that behalf by the State Government or the local authority. In view of this legal position, we are unable to accept the contention of the learned counsel for the accused that the general authorisation in the form of a resolution by the Municipal Council was not valid. In this connection, mention may be made of a decision of a Full Bench consisting of six Judges of the Allahabad High Court in M. J. Powell v. The Municipal Board of Mussoove1. Their Lordships were dealing with a similar provision contained in section 69 of Act XV of 1883, which provided that “A Court shall rot take cognizance of an offence punishable under this Act, except on the complain) of the Municipal Board, or of some person authorised by the Board in this behalf.” The accused in that case was prosecuted at the instance of the Municipal Council and the complaint had been filed by the Secretary. It was contended that he had got been duly authorised by the Board and that the Court was not, there fore, competent to take cognizance of the offence. The resolution which authorised the Secretary to file the complaint had been worded as follows: “Resolved that the Chairman, Vice-Chairman, Health Officer and Secretary be rested with authority under section 69, Act XV of 1885 to institute prosecutions on behalf of the Board.” It was contended on behalf of the petitioner that the words ‘authorised by the Board in this behalf did not include a general authority to prosecute in regard to offences under the Act or Rules generally such as that given by the resolution, but were confined to a specific authority to be given by the Municipal Board in relation to the specific offence for which the accused was to be prosecuted. Their Lordships held that a general authority as contained in that resolution was sufficient compliance with the requirements of law. It was also argued before their Lordships that such a power might be abused. That objection was answered by stating that a remedy had been provided for under the Act. Their Lordships clearly indicated the purpose behind such provisions in an enactment as follows: “It is clear that the section was enacted with a two-fold purpose. The object was, in the first place, to exclude prosecutions for what may be called municipal offerees from the interference of irresponsible persons, and to secure that such prosecutions should have the guarantee of the responsibility of the Municipal Board. A further object, in my opinion, was to relieve the Municipal Board of the necessity of itself dealing with each individual case of prosecution for a municipal offence, and to enable it to assign that particular function to some other person or persons. Dealing with the words ‘ authorised by the Board in this behalf which are identical with the words used in section 20(1) of the Act, their Lordships observed: “A general authority, that is an authority to act in all cases or in a class of cases, is a familiar form of authority to an agent or an officer. The word ‘authorised’ would, include it just as much as the narrower kind of authority, which consists in authorising an Agent merely to take specific action in a particular case.” Their Lordships further referred to the other provisions where the words, ‘authorised in this behalf had been used and went on to discuss the inadvisability of giving a restricted meaning to those words: “The Government Advocate has pointed out what would be the result of restricting it in the manner suggested. In some of the larger Municipalities constituted under this Act. He said-and I think with truth-that the section would be utterly unworkable if so restricted. In a large communicity with a multiplicity of local business, and where offences against bye-laws of greater or less importance are of constant occurance, it is impossible that the Municipal Board should meet and deliberate and pass resolutions in every case before any complaint could be instituted. In a large communicity with a multiplicity of local business, and where offences against bye-laws of greater or less importance are of constant occurance, it is impossible that the Municipal Board should meet and deliberate and pass resolutions in every case before any complaint could be instituted. The meetings of the Board are subject to regulations as regards convening, notices to be sent to the members and as to quorum, and so pre-suppose a machinery which often means considerable delay, and which could rot possibly be applied as a preliminary to each and every prosecution for a municipal offence. That is precisely the consideration which induced the Legislature to enact the concluding words of section 69. I can see no a priori improbability, no considerations of public policy which would make it unlikely that the Legislature should entrust to a Municipal Board power to confer on other persons not only a specific authority to file a particular complaint, but a general authority to prosecute for municipal offences, including authority to determine whether a prosecution is desirable. This decision has been followed by the Kerala High Court in Municipal Health Officer and Food Inspector, Kozhikode v. Anthala Tea Estate Co.,1 where the complaint had been laid by a Food Inspector duly appointed under section 9 of the Act. There all Food Inspectors had been duly authorised by the State Government to institute prosecutions for offences under the Act by a notification. The Preliminary objection raised on behalf of the accused was that the prosecution was not in accordance with section 20(1) of the Act and that the cognizance was therefore barred It was also contended that the authorisation should be in respect of each offence. Repelling these contentions, it was laid down: “It is obvious that the very object of the second clause is to enable the State Government and local authorities to appoint some other person to exercise on their behalf the discretion vested in them by the first clause since, if the State Government or the local authorities had to consider each particular case and determine whether a prosecution should be launched or not, the section would become altogether unworkable having regard to the large number of offences that are committed. And that very object would be defeated by the interpretation sought to be placed on the clause. And that very object would be defeated by the interpretation sought to be placed on the clause. For these reasons, we find no substance in the contention that the authorisation in the present case is not valid and that the prosecution instituted was not in accordance with section 20(1) of the Act. In the result, we allow the appeal and set aside the order of acquittal passed by the learned District Magistrate. We hold the accused guilty of the offence for which he was charged in the Court below and convict him of the same and sentence him to pay a fine of Rs.100 and in default to suffer simple imprisonment for two months. S.V.S.-----Appeal allowed.