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1999 DIGILAW 361 (GAU)

Dalmia Dairy Industries Ltd. v. State of Assam

1999-11-19

P.G.AGARWAL

body1999
This criminal revision by M/s Dalmia Dairy Industries Ltd is directed against the judgment and order dated 25.11.91 passed by the learned Addl Sessions Judge, Nagaon in CA No. 43 of 1986, whereby the learned Judge uphold the j judgment and order of conviction and sentence passed by the learned Addl Chief Judicial Magistrate, Nagaon in CR Case No 5272 of 1982, wherein the petitioner company was convicted under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, for short the Act, and was sentenced to pay a fine of Rs 10,000/-. 2. On 1.4.82 Shri Haren Gogoi, Food Inspector, Nagaon collected the sample of infant milk food, 'Swapan Brand' from the shop premises of M/s Bhowal Store at Daccapatty, Nagaon. The vendor claimed that the said infant milk food which was packed in tin containers were purchased by him from M/s Jaharmal Jaskaran of Marwaripatty of Nagaon and also produced a cash memo to that effect. The sample was sent to the Public Analyst of Assam and he opined that the food item does not conform to the standard. Thereafter the vendor and the dealer were prosecuted in the above case. At the instance of the dealer, part of the sample was sent to the Central Food Laboratory, Calcutta and the Central Food Laboratory submitted an analysis report with the opinion that "the sample of Infant Milk Food (Spray Dried) 'Sapan Brand' is misbranded under section 2 (ix) (k) read with Rule 32 (f) and 39" The Court also impleaded the present petitioner M/s Dalmia Industries Ltd as the manufacturer of the article of food in question. On conclusion of trial accused Ashotosh Bhowal, M/s Jaharmal Jaskaran and its active partner Gajraj Baid were acquitted by the trial Court holding that they are protected under section 19 (1) (a) (i) of the Prevention of Food Adulteration Act. The trial Court held that the infant milk food is misbranded as it contains a declaration, "medically approved formula for balanced growth of a infants", which is a clear violation of Rule 39 of the PFA Rules. The petitioner was therefore convicted and sentenced as aforesaid. 3. I have heard Mr. JM Choudhury, learned senior counsel for the petitioner and Mr. DR Saikia, learned Public Prosecutor. 4. The petitioner was therefore convicted and sentenced as aforesaid. 3. I have heard Mr. JM Choudhury, learned senior counsel for the petitioner and Mr. DR Saikia, learned Public Prosecutor. 4. In this case the fact that the petitioner is a manufacturer of the concerned infant milk food under the brand name of 'Sapan' and that the said milk food is misbranded is not disputed in this revision. Learned counsel for the petitioner has submitted that in this case the consent for prosecution was obtained on the basis of report of Public Analyst, which opined that the sample is adulterated, and the consent for prosecution was obtained on the basis of report of Public Analyst, which did not contain anything about misbranding. However, the accused has been convicted for misbranding without obtaining necessary sanction and, as such, the trial, conviction and sentence entered into by the trial Court and confirmed by the appellate Court is bad in law and the accused is entitled to acquittal. Section 20 (1) of the PEA Act reads as follows : “20. Cognizance and trial of offences - (1) No person for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of the Central Govt or the State Govt or a person authorized in this behalf, by general or special order, by the Central Govt or the State Govt: Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in section 12 if he or in produces in Court a copy of the report of the Public Analyst along with the complaint." 5. In the present case sanction/consent for prosecution was given by the Chief Medical and Health Officer, Nagaon vide letter Ext 50 and the said letter of consent was based on the report of the Public Analyst. Learned counsel for the petitioner has placed reliance on a decision of this Court in the case of Rackitt & Colman of India Ltd vs. State of Assam, (1984) 2 GLR 343. In the above referred case the Court considered some earlier decisions wherein it was held that misbranding is different from adulteration and if sanction is given for commission of one offence, prosecution, cannot continue for any other offence. In the above referred case the Court considered some earlier decisions wherein it was held that misbranding is different from adulteration and if sanction is given for commission of one offence, prosecution, cannot continue for any other offence. In the case of Rackitt & Colman India Ltd (supra) the sanction for prosecution was given to prosecute the accused person for the offence of adulteration and as such their subsequent prosecution for the offence of misbranding was quashed. 6. The object of providing for consent to prosecute persons under the Prevention of Food Adulteration Act except the offence under section 14 and 14A and also the complaint by private persons, was to provide safeguard to the accused person so that they are not to face prosecution without consent by the persons authorised. The entire act is a social welfare enactment to protect the health of the public. Still safeguard has been provided so that vendors, dealers, manufacturers are not unnecessarily harassed. The object of obtaining sanction/ consent is that the authority concerned would apply its mind to the facts and circumstances of the case and then find out whether or not the prosecution should be launched. In the case of State of Bihar vs. PP Sarma, 1992 Suppl /j (1) SCC 222, the Apex Court considering the fact of that case observed. "The sanction under section 197 CrPC is not an empty formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the Investigating Officer, before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the, facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged to prove before the Court that those facts were placed before the sanctioning authority. Section 197 does not require the sanction to be in any particular form. If the, facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged to prove before the Court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution." In the case of Suresh S. Rajput vs. Phartiben Pravinbhai Soni & others, AIR 1996 SC 2883 , the Court observed that consent under section 20 of the Act is given after going through the Analysis Report of Public Analyst and other pertaining papers and documents and the nature of offence committed by the alleged offenders. The Court further observed : . "It is seen that the analysis report which was placed before the Local (Health) Authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and to consider the pros and cons of the case before granting sanction to lay prosecution against the respondents." 7. Thus we find that the report of the Public Analyst plays a decisive role for giving or refusing consent for prosecution. If the report of the Public Analyst is in favour of the accused, there is no scope of prosecution and if the report is adverse to the accused the local health authority can hardly refuse sanction. The question of collection of sample legally or proper manner and other are all question of facts which are to be decided in the trial. However, as stated above, no consent under section 20 is required if the complaint is filed by a purchaser referred to in / section 12, if he produces before Court a copy of the report of the Public Analyst along with complaint. However, as stated above, no consent under section 20 is required if the complaint is filed by a purchaser referred to in / section 12, if he produces before Court a copy of the report of the Public Analyst along with complaint. Proviso to section 20 therefore lands credence to the fact that report of the Public Analyst is the deciding factor. 8. Now the next question that arises for consideration is the stage at which the sanction is required. In the case of State of Bihar vs. PP Sarma, 1992 Supp (1) SCC 222 it was held that sanction can be granted at any time before the Court takes cognizance of the offence. The charge sheet can be filed even before the sanction. Thus we find that consent is the condition precedent for taking cognizance by the Court. In the present case the consent for prosecution was given by the competent authority on 30:6.82. The cognizance of the offence was taken by the trial Court on 9.7.82 Admittedly on the date of giving sanction h and also on the date of taking cognizance the report of the Public Analyst, Ext 11 was available before the Court. 9. The report of the Director of Central Food Laboratory is dated 30.10.82. This report was received at the instance of the co-accused. Section 13 of the Act contains provisions regarding the report of the Public Analyst and the certificate of the Director of Central Food Laboratory. The law in this regard has been laid down by the Apex Court in a recent decision in the case of Calcutta Municipal Corporation vs. Pawan Kurriar Saraf, (1999) 2 SCC 400 . The Supreme Court held: "When the statute says that the certificate shall supersede the report, it means that the report would stand annulled or obliterated. The word 'supersede' in law means 'obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal' (Vide Black's Law Dictionary, 5th Edn). Once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context, the proviso to sub-section (5) can also be looked at which deals with the evidentiary value of such certificate. Once the certificate of the Director of the Central Food Laboratory reaches the Court, the report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context, the proviso to sub-section (5) can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below : "Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein." If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of section 4 of the Evidence Act, 1872 which defines three kinds of presumptions among which the last is conclusive proof. When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Thus the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned." 10. When report of the Public Analyst stands superseded, question that arises for consideration is whether any consent given on the basis of the said Public Analyst will also become null and void and whether fresh sanction/consent will be required to be obtained on the basis of the report/certificate of the Director of Central Food Laboratory. In Reckitt & Colman of India Ltd (supra) this Court held that when the offence as disclosed by the report of the Central Food Laboratory is a distinct one then a fresh sanction would be required. As stated above, consent for prosecution is required for taking cognizance of the offence by the Court and if the Court takes cognizance of the offence and proceed with the matter, where is the need for taking fresh sanction? The only object of having a provision for sanction or consent is to safeguard the accused person from false and vexatious prosecution. The only object of having a provision for sanction or consent is to safeguard the accused person from false and vexatious prosecution. When the Court is seized of the matter where is the scope for false and vexatious prosecution or unwarranted harassment to the accused. The certificate from the Central Food Laboratory is obtained at the instance of the accused only and if the report is in favour of the accused he is discharged/acquitted forthwith. As a matter of fact when the sample is sent to the CFL the proceeding is kept in abeyance till the receipt of the certificate. There cannot be two opinion that provision of section 20 has been introduced in the Act to provide shelter or safeguard to the food adulterators which have a become menace to the society. A narrow or technical approach may defeat the very purpose for which the Act has been enacted. 11. There is another aspect of the matter also. Sections 20 and 20A provides that where a distributor or manufacturer or any other person is impleaded by the Court in the Court of trial, there is no obligation on the prosecution to get fresh sanction. The sanction obtained at the time of initiation of the proceeding will inure for the benefit of the prosecution in respect of the newly impleaded accused person and no further sanction is necessary. However, the above protection is not available if the distributor or manufacturer are prosecuted separately or in a fresh trial. Thus it mean that the distributor or manufacturer are not entitled to the protection regarding sanction/consent or they are deprived of the above protection granted by section 20. Section 20A of the Prevention of Food Adulteration Act reads as follows : "20A. Power of Court to implead manufacturer etc - Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court, may, notwithstanding anything contained in (sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20." 12. From the reading of the above, it is seen that the manufacturer, distributor or dealer can be summoned as accused by the Court only if the Court is satisfied e on the evidence before it that they are concerned with the above. The word satisfied denotes that the Magistrate must have sufficient materials to array such manufacturer or distributor as accused in the said trial. Thus the protection i s given to the manufacturer or distributor in another form through the trial Court. In the instant case the petitioner company was impleaded under section 20A of the Act. The said impleadment was not challenged by the petitioner at any point of time. When the Court on the basis of the materials on record had issued summons to the accused petitioner company to face the trial, there is no justification whatsoever to quash the trial on the ground of absence of fresh sanction. It will amount putting the clock back and will achieve or serve no purpose. I am in respectful disagreement with the view taken by the learned Single Judge in Rackitt Colman (supra). I am of the opinion that the sanction .8 obtained on the basis of the report of the Public Analyst if otherwise followed is sufficient to proceed with the trial even if subsequent certificate from the Director of CFL discloses a distinct offence. 13. In the result, I hold that the trial of the petitioner company did not suffer from any infirmity or illegality on the ground of proper sanction. The revision stands dismissed. The petitioner company is directed to pay the fine within a period of 45 days.