Harjit Singh vs State of Punjab

A. S. Nehra, J.

The petitioner was convicted under Section 16(1)(a) (i) of the Prevention of Food Adulteration Act and sentenced to undergo R. I. for six months and to pay a fine of Rs. 1,000/ and in default of payment of fine, to undergo further R. 1. for a period of two months, by the CJM, Patiala on 16.1.1986. The appeal filed by the petitioner was dismissed on August 18, 1986 by the Additional Sessions Judge, Patiala. Hence this revision petition.

The prosecution case in brief is as follows :

"On 18111983 Dr. Nirmal Kumar vested, with the powers or Food Inspector under the Prevention of Food Adulteration Act, 1954 raided the Dhaba of Harjit Singh accused situated at Sool Road, Bahadurgarh At that time, Dr. Suresh Kumar was also with him. At the Dhaba of accused 10 Kgs. of cow milk was found lying in aluminium utensil for sale to the public. It was boiled milk. Harjit Singh accused was also found present at the Dhaba. Dr. Nirmal Kumar disclosed to the accused his identity that he was Food Inspector vested with the powers of Food Inspector for seizing samples of food stuff from the vendors and to have the same analysed from the Public Analyst, Punjab. Expressing this intention on his part he served notice Ex. PB upon the accused which was signed by the accused and attested by Dr. Suresh Kumar asking the accused to supply him 660 mls of cow milk boiled so that he could have the same analysed from the Public Analyst. Thereafter, Dr. Nirmal Kumar stirred the milk lying in the aluminium patila and made it homogenous. Accused then supplied him 660 ml of cow milk against receipt Ex. PC on receipt of Rs. 2.50 from him. Receipt Ex. LC was signed by Harjit Singh and attested by Dr. Suresh Kumar. Dr. Nirmal Kumar divided that quantity of milk into three equal parts. He put each of those parts into three dry and clean bottles. 18 drops of formalin each were added into each of those bottles as preservative. Bottles were stoppered, tightly labelled and wrapped in a thick paper. A paper slip bearing the signatures of the Local Health Authority and the Code number was pasted on the wrapper of each of the bottles lengthwise covering the mouth and bottom of the container and joining its ends. Each of the bottles was then secured with a strong twine and the bottles were then sealed at the spot with four distinct seals. Signatures of the accused were obtained on each part of the sample in a manner that those signatures partly appeared on the wrapper of the bottle and partly on the paper slip. Spot memo Ex. PD was prepared which was signed by the accused and Dr. Suresh Kumar. Sample bottle was sealed. It was sent to Public Analyst for analysis per special messenger. Specimen impression of the seal used to seal the sample was sent in a sealed packet to the Public Analyst, Bhatinda through the same special messenger. Remaining two parts of the sample alongwith memo in Form No. VII and specimen impression of the seal used were deposited with the Local Health Authority on the same day. On receipt of the report of the Public Analyst copy whereof was endorsed by the Public Analyst to the Food inspector, the Food Inspector instituted complaint Ex. PF against the accused. After instituting complaint Ex. PF against the accused, he informed the Local Health Authority about the institution of the complaint against the accused. Local Health Authority sent copy of the report of the Public Analyst to the accused under registered cover along with a forwarding letter calling upon him to have the sample reanalysed within 10 days of the receipt of the report of the Public Analyst by him, if he so wanted.

The prosecution examined Sohan Lal Clerk PW 1, Dr. Nirmal Kumar PW 2 and Dr. Suresh Kumar PW 3.

The accused when examined under Section 313 Cr. P. C. denied imputations appearing in prosecution evidence against him and stated that it is a false case. He further stated that he has no connection with the alleged shop or dhaba and that he is employed in the Punjab State Electricity Board, Patiala. To his defence, be examined Bant Kumar Sharda D. W. 1,

Mr. D S. Sawhney, Advocate, learned counsel for the petitioner, has submitted that the notification authorising Dr. Nirmal Kumar PW to prosecute the petitioner was ultravires of Section 20(1) of the Act. in support of his argument, he relied upon an authority of the Supreme Court in A.K. Roy and another v. State of Punjab and others, 1986(2) Recent Criminal Reports 569.

I have heard the learned counsel for the parties and have gone through the papers thorougly. Complaint Ex. PF shows that Dr. Nirmal Kumar PW was appointed as Food Inspector vide notification No. FD(4)B82/5/ 25769 dated 29111982 under Section 9 of the Act. The said notification is reproduced as under :

"In exercise of the powers conferred by Section 9 and Section 20 of the Prevention of Food Adulteration Act, 1954 (Sr No. 37 of 1954 and Sr. No. 49 of 1954) read with rule 8 of Prevention of Food, Adulteration Rules, 1955 and in pursuance of the powers delegated by the Punjab Government under Rule 3 of the Pre. vention of Food Adulteration (Punjab) Rules, 1958, vide Punjab Government Notification No. 55752HB116829659, dated 10th October, 1968 read with Punjab Government Notification No. 58582HB 1178/29600, dated 3rd August, 1978 declaring jurisdiction of the Food Inspectors throughout the State; I being the Food (Health) Authority hereby appoint the following medical officers as Food Inspectors for whole of the State of Punjab and for all the local areas for which Civil Surgeons are the Local (Health) Authorities and authorise them to institute prosecutions against the persons committing offences under the above said Act/Rules within the limits of their jurisdiction.

Sr. No. Name of the Medical Officer with Service No. Place of posting Name of district

xx xx xx xx

31 Dr. Nirmal Kumar P.H.C. Rupal Heri Patiala

Sd/

Food(Health) Authority and Director,

Health and Family Welfare, Punjab".

This notification shows that Shri Nirmal kumar was further authorised to institute prosecution against the persons committing offences under the Act within the limits of their notified area. This notification purports to have been issued under the signatures of the Director, Health and Family Planning, Punjab, who has himself delegated the powers, vide the Punjab Government Notifications, dated 10th October 1968, ibid under Section 9 read with rule 8 of the Prevention and Food Adulteration Rules 1955. It is further revealed that under Section 20 of the Act, the Director had been delegated the powers, vide Punjab Government Notification dated 10th, October, 1968 quoted above.

Under Section 9 of the Act only the Central Government or the State Government may by notification in the official gazette appoint some persons to be Food Inspectors and under Section 20 of the Act, no prosecution under the Act can be launched except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special orders by the Central Government or the State Government Interpreting this provision, the apex Court held in A. K. Roy''s case (supra) that the prosecution for offences under the Act not being an offence under Section 14 or Section 14(a) can be instituted only by one of the following authorities namely :

(i) The Central Government, or the State Government, or

(ii) with the written consent of the Central Government or the State Government, or

(iii) a person authorised in this behalf by a general or special order by the Central Government or the State Government, or

(iv) with the written consent of a person so authorized.

In that case, similar notification had been issued and the powers had similarly been delegated to the Director, vide the same earlier notification. The prosecution in this cage has been launched by an unauthorised person, and, therefore, the whole proceedings are bad.

The prevention of Food Adulteration (Punjab) Rules, 1958 were framed in exercise of the powers under Section 24(2)(e) of the Act and rule 3 thereof reads as under :

"Power of Food (Health) Authority, The State Government may, by an order in writing delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable in the order of the Food (Health) Authority of the State of Punjab."

It was ultimately held in A. K. Roy''s case (supra as under) :

"12. In the case of statutory powers the important question is whether on a true construction of the Act, it is intended that power conferred upon A may be exercised on A authority by B. The maxim delegates non protest delegate merely indicates that this not normally allowable but legislature can always provide for subdelegation of powers. The provision contained in Section 24(2)(e) enables the State Government to, frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any subdelegation. That apart, a rule framed under Section 24(2)(e) can only provide for delegation of minor administrative functions e.g appointment of Food Inspectors, Food (Health) Authority etc. In the case of important executive functions like the one contained in Section 20(1) of the Act of the authorise launching of prosecutions for an offence under the Act which is in the nature of a safeguard, the courts may be disposed of construe general powers of delegation restrictively. Keeping in view the language of Sections 20(1) and 24 (2)(e) of the Act, Rule 3 of Punjab Rules can be treated to be a general order issued by the State Government to authorise the Food (Health) Authority, i.e. the Director of Health Services to institute prosecutions for an offence under the Act. Unfortunately, the draftsmen of Rule 3 more or less employed the language of Section 20(1) of the Act. If Rule 3 were to be literally interpreted. the words "to authorise the launching of prosecution" may lead to the consequence that the Food (Health) Authority who had been delegated the power of the State Government under Section 20(1) of the Act could in his turn, subdelegate his powers to the Food Inspector. Such a consequence is not envisaged by Section 20(1) of the Act. It is well settled that rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute. It must, therefore, follow as a logical consequence that Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in Section 20(1) of the Prevention of Food Adulteration Act, 1954 and cannot be construed to authorise subdelegation of powers by the Food (Health) Authority, Punjab to the Food Inspector, Faridkot. If so construed, as it must, it would mean that the Food (Health) Authority, was the person authorised by the State Government to initiate prosecutions. It was also permissible for the Food Inspector, Faridkot as laid down by this Court in State of Bombay v. Purshottam Kaniyalal, (1961)1 SCR 458 and Corpn. of Calcutta v. Md. Omer Ali, (1976)4 SCC 527."

In view of A. K. Roy''s case (supra), this criminal revision is accepted, conviction and sentence awarded to the petitioner are set aside and he is acquitted of the charge. Fine, if paid, be refunded.