Dhani Ram and Another vs State of H.P. and Another

A.L. Vaidya, J.—One of the Petitioners Sh. Dhani Ram was prosecuted u/s 7 read with Section 16(1A) of the Prevention of Food Adulteration Act (hereinafter to be called as ''the Act'') for selling adulterated Shakar to the Food Inspector on 16th December, 1988. The sample so purchased was found to be adulterated by the Public Analyst and a complaint was preferred. During the trial, this Dhani Ram accused-Petitioner moved an application u/s 13(2) of the Act, for sending second part of the sample to the Director, Central Food Laboratory, Mysore, which application was allowed on 25th September, 1989. The Director, Central Food Laboratory, Mysore, also vide his report opined sample to be of adulterated nature.

During the trial of the complaint, it was brought to the notice of the trial Magistrate that on the basis of case law Rattan Lal v. State of H.P. (1991 AIPFAJ 319) this Court has held that in certain circumstances, after the report of Director, Central Food Laboratory is received and sample is found to be adulterated, accused cannot be proceeded with except after obtaining fresh sanction for prosecution of the accused u/s 20 of the Act on the basis of the opinion submitted by the Director, Central Food Laboratory, which had superseded the opinion of the public analyst. In the present case, the trial Magistrate came to the conclusion that as the aforesaid ruling was applicable and fresh sanction for prosecution of the accused was required u/s 20 of the Act and at that stage of the trial, the learned trial Magistrate came to the conclusion that for want of fresh sanction, complaint fails and was accordingly dismissed. The accused was acquitted for the offences of which he has been charged. However, the learned trial Magistrate observed that it was made clear that the State/Food Inspector will be at liberty to institute a fresh complaint against the accused after obtaining valid consent if it so likes or if so advised in accordance with law.

A fresh complaint after obtaining fresh written consent u/s 20 of the Act, on the basis of the report of the Director, Central Food Laboratory, was preferred by the Food Inspector and on the basis of the same, vide order dated 8th September, 1993 the trial Magistrate summoned the accused u/s 7(1) read with Section 16(1)(a)(i) of the Act.

The present petition has been preferred u/s 482 of the Code of Criminal Procedure, with the prayer that the complaint as well as the proceedings now pending before the trial Magistrate be quashed on the sole ground that the Petitioner once acquitted could not be prosecuted again for the same offence.

I have heard the learned Counsel for the parties and have also gone through the entire record.

It is not being disputed by the learned Counsel for the parties that no prosecution for an offence under the Act can be instituted except by, or with the written consent as provided u/s 20 of the Act. That means, in case there is no valid written consent of the relevant authority u/s 20 of the Act, the institution of the prosecution itself is void, illegal and in-operative in the eye of law. Admittedly, after the report of the Director, Central Food Laboratory, a fresh sanction , on the basis of Rattan Lal v. State of H.P. (Supra) was required. In case it was so required, the institution of the complaint without fulfilling that legal requirement was not only illegal but un-sustainable. There is no doubt that'' at the time of filing of first complaint, a written sanction u/s 20 of the Act was procured on the basis of the report of the Public Analyst, but during the trial that report stood superseded by the report submitted by the Director, Central Food Laboratory, Mysore and without there being any valid sanction procured on the basis of the report of the Director, Central Food Laboratory, the institution of the proceedings automatically was rendered illegal and void. In such circumstances, there was no option with the trial Magistrate than to dismiss the complaint, which has been rendered illegal on the basis of the circumstances, referred to above. The Food Inspector again has no alternative than to ask for fresh sanction on the basis of the report of the Director, Central Food Laboratory, which he did and filed fresh complaint.

It has been very forcefully contended on behalf of the Petitioner that u/s 300 of the Code of Criminal Procedure the second prosecution was barred as he has been acquitted, no matter on technical ground. It is not so simple a matter as has been contended on behalf of the Petitioner.

u/s 300 of the Code of Criminal Procedure, a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which a different charge from the one made against him might have been made.

In order to apply provision of Section 300 of the Code of Criminal Procedure the acquittal or conviction should be in trial held in accordance with law and that too by a court of competent jurisdiction. In the present case, acquittal of the accused on the technical grounds, as discussed above, will not come within the ambit of Section 300 of the Code of Criminal Procedure. The acquittal order dated 20th February, 1993 passed by the trial Magistrate, on the earlier complaint, was on the basis of the complaint having been dismissed for want of valid written sanction u/s 20 of the Act. The acquittal is not on merit at all. In case, there was not valid sanction, as discussed above, on the basis of the report of the Director, Central Food Laboratory, the prosecution launched or instituted was rendered illegal. If it was so the Magistrate had got absolutely no authority or jurisdiction to pass any order of acquittal or conviction on merit. In this view of the matter, the order of acquittal passed on the earlier complaint will not come within the ambit of Section 300 of the Code of Criminal Procedure.

At this stage, provisions of Section 19 of the Prevention of Corruption Act, 1988 can safely be referred (in short to be called as the Act of 1988). Section 19 of the Act provides that previous sanction was necessary for prosecution. Further, it provides that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to has been committed by a public servant, except with the previous sanction of the person detailed in the Section itself. In case there was no sanction u/s 19 of the Act, 1988 or there was invalid sanction, which u/s 19 of the Act debarred the Court to take cognizance, meaning thereby in case there was no sanction the court could take cognizance at all and if it had so done the entire trial would be vitiated and in that event it would be open to the State to prosecute after obtaining proper sanction, especially in such a case the Court has no option but to hold the trial stage, by the Special Judge as invalid and without jurisdiction on the ground that there is no valid sanction in terms of Section 19 of the Act 49 of 1988 for prosecution of the accused. This view has been expressed in Manguesh Jaswant Sinai Singhal v. State 1969 CriL.J. 1384. At that time, Act of 1947 was in force and sanction was required to be procured u/s 6(1) of that Act.

Thus, taking into consideration all the legal implications and the factual side of the case, learned Counsel for the Petitioner''s submission that the case comes u/s 300 of the Code of Criminal Procedure does not hold good and has to be rejected.

No other point has been stressed.

In view of the foregoing reasons, the present petition fails and is accordingly dismissed. Order passed in Cr.M.P. No. 222 of 2995 dated 22nd August, 1995, stands vacated.

The observations made herein above will not affect parties'' case which is yet to be tried on merits. The trial Magistrate to dispose of the complaint on merits without any undue delay.

Let a copy of this judgment be sent to the trial Magistrate to enable him to proceed further in the matter.