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2011 DIGILAW 1107 (PNJ)

Rajinder Mittal v. State of Punjab

2011-04-25

GURDEV SINGH

body2011
JUDGMENT Gurdev Singh, J.:- The above noted criminal revisions, though directed against two different orders of even date, are being decided, vide this common order as the facts and question of law involved are the same. The first revision (CRR No. 969 of 2004) filed by the petitioners-accused is directed against the order dated 29.3.2004 passed by Additional Sessions Judge, Bathinda, vide which he accepted the revision preferred by the State and set aside the order dated 9.10.2002 passed by Additional Chief Judicial Magistrate, Bathinda, discharging the accused of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). The second revision has been preferred by the petitioners against the order dated 29.3.2004 passed by Additional Sessions Judge, Bathinda, vide which he set aside the order dated 9.10.2002 passed by Additional Chief Judicial Magistrate, Bathinda, vide which the petitioners were discharged of the offence under Section 16(1)(a)(i) of the Act. 2. The facts, in brief, are that the petitioners had been doing the business and running oil mill under the name of Bathinda Chemical and Vanaspati Mills Private Limited. Their premises was inspected by the Food Inspector on 8.7.1983 and at that time, Rajinder Mittal, accused was found present and was found to be in possession of 125 tons of unspecified oil for sale, contained in Tank No. 10. 1500 gms of that oil was purchased and was divided into three equal parts and was put in three different dry and clean bottles, which were stoppered, securely fastened, labelled and then wrapped in a strong thin paper and thereafter the paper slip of Local Health Authority was wrapped around all the three parts of the samples. One sample was sent to the Public Analyst, Punjab, along with requisite forms, which were prepared at the spot and other two parts of the samples were deposited in the Office of the the Local (Health) Authority. On analysis, the sample was found to contain beef fat and was not found conforming to the required standard as laid down in the Schedule to the Act. The prosecution was launched by the Food Inspector by submitting the complaint before JMIC, Bathinda. As the complaint was filed by a public servant in the discharge of his official duties, so the accused were summoned without recording any preliminary evidence. The prosecution was launched by the Food Inspector by submitting the complaint before JMIC, Bathinda. As the complaint was filed by a public servant in the discharge of his official duties, so the accused were summoned without recording any preliminary evidence. After going through the complaint and documents sent along therewith and pre charge evidence the Additional Chief Judicial Magistrate discharged the accused on the grounds mentioned therein. As already said above, the revision petition preferred against that order was accepted and the order of discharge was set aside. The case was remanded to the trial court to proceed as per law, after framing the charge against the accused for the offence under Section 7 read with Section 16(1)(a)(i) of the Act. 3. The premises of the accused was again inspected by the Food Inspector on 18.7.1983 and at that time it was the same accused; namely, Rajinder Mittal, who was found in possession of 125 tones of unspecified oil for sale, contained in tank No. 5. Similar procedure for taking the samples, as prescribed by the Act and Rules thereunder, was followed. One part of the sample was sent to the Public Analyst, Punjab, and the similar report was received. The prosecution was launched in the form of the second complaint, in which similar order of discharge was passed by Additional Chief Judicial Magistrate, Bathinda, which in revision was set aside by Additional Sessions Judge, who directed the trial court to proceed in accordance with law after framing the charge against the accused under the aforesaid Section. 4. I have heard learned counsel for both the sides. 5. It has been submitted by counsel for the petitioners-accused that the Additional Sessions Judge committed illegality while setting aside the well reasoned order of the Additional Chief Judicial Magistrate, while discharging the accused on the ground that the Director, Health Services, to whom the power of launching the prosecution had been delegated by the State Government, could not have further delegated that power to the Food Inspectors. While elaborating his submissions, he contended that as per Section 20 of the Act, no prosecution for an offence under the Act, can be instituted except by or with the consent of the Central or State Government or a person authorized in this behalf by general or special order by any of such Government. While elaborating his submissions, he contended that as per Section 20 of the Act, no prosecution for an offence under the Act, can be instituted except by or with the consent of the Central or State Government or a person authorized in this behalf by general or special order by any of such Government. Vide Notification dated 5.10.1968 bearing No. 10270-1HB II-68/29147, the Central Government, in pursuance of the provisions of Rule 3 of the Prevention of Food Adulteration(Punjab)Rules, 1958(hereinafter referred to as “the Rules”) delegated its power to the Food (Health)Authority of appointing Food Inspectors and to authorise institution of prosecutions for an offence under the Act. Once the power of Central Government was delegated to that authority, it could not have further delegated that power to the Food Inspector. According to him, similar question of law came up for consideration before Hon’ble the Supreme Court in A.K.Roy vs. State of Punjab 1986 (2)RCR (Crl.) 569 (SC), wherein such a Notification, further delegating the power of the State Government, was declared to be ultra vires and it was also held that the Food Inspector was not competent to launch the complaint. According to him, that judgment has been followed by this Court in the following cases:- 1. Ajay Pal vs. State of Punjab 1987(1)RCR(Criminal)1(P&H) 2. Tilak Raj vs. State of Punjab 1987(1)RCR(Criminal)284 (P&H) 3. Lachhman Dass v. State of Punjab 1989(1)RCR(Criminal)627 (P&H) 4. Balwant Singh vs. State of Punjab 1987(2)RCR(Criminal)350 (P&H) 5. Harjit Singh vs. State of Punjab 1994(1)RCR(Criminal)62 (P&H) 6. Raj Kumar vs. State of Punjab 1987(1)RCR(Criminal)348 (P&H) 7. Surinder Singh vs. State of Punjab 1987(1)RCR(Criminal)690 (P&H) 8. Nachhattar Singh vs. State of Punjab 1989(2)RCR(Criminal) 98(P&H) 9. Shakti Chand vs. State of Punjab 1988(1)RCR(Criminal)279 (P&H) 6. He further submitted that a correct finding was returned by Additional Chief Judicial Magistrate that the Food Inspector had no authority to launch the prosecution and, as such, the complaint was not competent. While ignoring the judgments of the Hon’ble Supreme Court and of this Court, the Additional Sessions Judge recorded a finding to the contrary and such a finding cannot be sustained. 7. Faced with the situation, the State counsel was left with no other option but to agree on the proposition that power of launching the prosecution could not have delegated to the Food Inspector by the Food (Health) Authority. 8. 7. Faced with the situation, the State counsel was left with no other option but to agree on the proposition that power of launching the prosecution could not have delegated to the Food Inspector by the Food (Health) Authority. 8. Both the above said complaints were filed by the Food Inspectors and in para No. 1 thereof, it has been contended that they were appointed under the Act, vide Notification No. Food-1-Pb-80/ 3339A dated 19.11.1980 and that vide the same Notification, they have been duly authorized to institute prosecution for an offence under the Act. Copies of those notifications were filed along with the complaint. A perusal of the Notification shows that in exercise of the powers conferred by Section 9 of the Act read with Rule 8 of the Rules, and the powers delegated by the Punjab Government, vide Notification No. 5204-2HB-II-76/14111 dated 30.4.1976 and for declaring the jurisdiction throughout the State, vide Punjab Government memo No. 5868-2HB-78/26900 dated 3.8.1978, it was Sita Ram, complainant, who was appointed as a Food Inspector by the Director, Health and Family Welfare, Punjab, and vide that Notification while exercising the powers conferred by Section 20 of the Act read with Punjab Government Notification No. 5576-2HB II -68/ 29669 dated 10.10.1968, The Director, Health and Family Welfare, Punjab, also authorized him to institute prosecutions against the person committing the offence under the Act within the local limits of his jurisdiction. Similar Notification dated 27.5.1975 was issued in respect of Krishan Chand, complainant. It is pertinent to note that under the above said Notification dated 10.10.1968, the Central Government had authorized the Food(Health)Authority to institute the prosecution for the offence under the Act. 9. The question arises whether the Director, Health and Family Welfare, Punjab, could have authorized the Food Inspectors to institute the prosecutions for the offence under the Act? Vide Notification dated 30.4.1976, the State of Punjab had appointed the Director, Health and Family Planning, Punjab, to exercise powers and perform the duties of the Food(Health)Authority under the Act for the whole of the State of Punjab. The Notification dated 19.10.1980 was issued by the Director, Health and Family Welfare, Punjab, while exercising the powers of the Food(Health) Authority under the Act. He was exercising the powers, so delegated to him, vide Notification dated 5.10.1968. Position was similar in A.K.Roy’s case (supra). The Notification dated 19.10.1980 was issued by the Director, Health and Family Welfare, Punjab, while exercising the powers of the Food(Health) Authority under the Act. He was exercising the powers, so delegated to him, vide Notification dated 5.10.1968. Position was similar in A.K.Roy’s case (supra). It was held therein that a Food Inspector, authorized by the Director of Health Services and not by the State Government, to launch the prosecutions for the offence under the Act, is not competent to launch such prosecutions. He is not a person, who has been authorized by any general or special order issued by the Central Government or the State Government. It was also held therein that there would have been no problem if the State Government were to issue Notification under Section 20(1) of the Act conferring authority on the Food Inspector to launch prosecutions for an offence under the Act. Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein, which power had to be exercised in the manner provided and not otherwise. It was only the Food(Health)Authority, which was authrised by the State Government to initiate prosecutions and it was not permissible for that authority, being the person authorised under Sections 20(1) of the Act, to give his written consent for the institution of such prosecutions by the Food Inspectors. 10. In view of that, the Notification issued by the Food (Health) Authority, authorizing the Food Inspector to launch the prosecutions for the offences under the Act was declared ultra vires in so far as that purported to delegate its power to institute the prosecutions for an offence under the Act and it was held that the Food Inspector was not competent to lodge complaint against the accused for having committed the offence under Section 16 of the Act. That judgment has been repeatedly followed by this Court in the above said judgments. The State counsel has not been able to cite any judgment to the contrary. 11. That judgment has been repeatedly followed by this Court in the above said judgments. The State counsel has not been able to cite any judgment to the contrary. 11. In view of the proposition of law, so laid down, it is to be held that the above said Food Inspectors, to whom the authority for launching the prosecutions had been delegated by the Food(Health)Authority and, who were never authorised by the State itself to launch the prosecutions, had no authority to file the complaints. The petitioners-accused were entitled to be discharged of the offence on that ground itself. The Additional Sessions Judge committed an illegality while setting aside the order passed by Additional Chief Judicial Magistrate, so discharging the petitioners/accused. 12. These revisions are hereby accepted. The orders dated 29.3.2004 passed by Additional Sessions Judge, are set aside and the petitioners-accused are discharged of the offence under Section 16(1)(a)(i) of the Act. Records of the trial court be returned forthwith. -----------0.K.B.0------------