Kishan Lal vs State

P.N. Bakshi, J.—The applicant has been prosecuted u/s 7/16 of the Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/-. His conviction and sentence of imprisonment has been confirmed in appeal by the Sessions Judge, Bareilly, but the fine has been reduced to Rs. 500/-. Hence this revision.

It is not necessary to go into the detail facts of this case, since the main question argued by the applicant''s counsel is that the sanction alleged to have been granted in the instant case is no sanction in the eyes of law. He submits that the sanctioning authority has not applied his mind before granting the sanction.

It appears from a perusal of the order of sanction Ex ka 6 passed by the Municipal Medical Officer of Health, Bareilly on 23rd April 1973 that he claims to have seen the Food Inspector''s report dated 22nd April, 1973 and the certificate of the Public Analyst. From a careful scrutiny of the report of the Food Inspector Ex. ka 5, 1 find that the details of the sample sent to the Public Analyst, U. P. Government, Luck-now have to be mentioned in the pro-forma, prepared under the Prevention of Food Adulteration Act for obtaining sanction. Item No. 5 of this form refers to the date, time and the place of collection of the sample, which has been mentioned therein as 28-1-1972. Item No. 9 refers to the date of dispatch to the Public Analyst, which has been mentioned as 28-1-1972. Admittedly both these dates have been filled in by the Food Inspector and admittedly both these dates are incorrect. In the Report of the Public Analyst Ex. Ka 4, issued under Rule 7(3) of the Pure Food Rules, it has been mentioned that the sample in question was received by him on 8-1-1973. If the sample itself was dispatched by the Food Inspector on 28-1-1972, it could not possibly have been received in the office of the Public Analyst on 8-1-1973. The Medical Officer of Health while granting sanction should have noticed this discrepancy, if he had really applied his mind to the facts of the case.

Learned Counsel for the State mentions that these errors committed by the Food Inspector should not be stretched to mean that the sanctioning authority did not apply his mind at all to the facts of the case while granting sanction. I am unable to agree with his submission. As I have mentioned above, there is an inherent impossibility in the sample having reached the office of the Public Analyst on the date mentioned in his report. This glaring defect should have been noticed by the sanctioning authority, if he had examined the documents carefully. In that event, the probability was that he would have called for the Food Inspector and made further enquiries with regard to the correct facts of the case regarding the commission of the offence etc. Unfortunately the Medical Officer of Health has not been produced in the instant case to clarify the position.

I also find from a perusal of the printed form of sanction dated 23rd April, 1973 (Ex. Ka 6) that the Medical Officer of Health, while granting the sanction has authorized Sri J.N. Rawat to launch the prosecution in Court. In all fairness to the citizen, whose liberty is at stake and who is liable to serious consequences of prosecution u/s 7/16 of the Prevention of Food Adulteration Act, the blank columns of this form granting sanction, should normally be filled in by the Medical Officer of Health himself, unless for adequate reasons it cannot be done. Such an action on his part would indicate that the Medical Officer of Health had personally applied his mind to the facts of the case before granting the requisite sanction. If somebody else fills up these blanks, as appears to have been done in the instant case, it would give rise to a reasonable suspicion that the signatures have been mechanically affixed to the document by the sanctioning authority without the application of his mind. To neutralise any such misgiving or suspicion in the mind of the accused-applicant, I consider it very desirable that the order granting sanction on the prescribed form should be personally filled in by the sanctioning authority, otherwise such loopholes are bound to create confusion and provide ample material for argument on behalf of the convicted accused. It is apparent from the scrutiny of Ex. Ka 6 that the details have been filled in one type of ink, whereas the signature of the sanctioning authority are in another type of ink. This is obvious to the naked eye. This circumstance, therefore, creates a reasonable doubt whether the sanctioning authority has at all applied his mind before authorising Sri J.N. Rawat to launch the prosecution in the court against the accused applicant.

I would also like to mention here that in cases where the sanction granted by the authority concerned is disputed and where such errors and omission exist, as have been pointed out by me above, it would be desirable for the prosecution to produce the Medical Officer of Health before the Court to explain the doubts, and infirmities arising therein. It is no doubt open to the prosecution to lead other evidence and to convince the court that there has been complete application of mind of the authority concerned prior to the sanction being granted. As such it may not always be necessary to produce the sanctioning authority. But that would depend upon the circumstances of each case. Where serious infirmity exists and where this question of valid sanction is very hotly contested, it would be desirable that this lacuna is filled in by the production of the sanctioning authority himself.

As far back as 1948 the Privy Council has held in AIR 1948 82 (Privy Council) , that the facts in respect of which sanction was given should either be referred to on face of sanction or it must be proved by extraneous evidence that they were placed before the sanctioning authority not doing this is invalid and the defect cannot be cured u/s 537 Code of Criminal Procedure. These observations have been made with a view to provide material to the Court to satisfy itself that the sanction has been accorded in accordance with law. The grant of sanction is not an Idle formality. It is necessary hurdle placed by the Legislature to protect the citizen from the vagaries of the Executive. It has, therefore, to be satisfactorily established by the prosecution and rigidly scrutinised by the law courts.

In view of the observations made by me above, which are fortified by the decision of the Privy Council, I am of the opinion that the prosecution has failed to prove that a valid sanction was granted for prosecuting the applicant in the instant case, by the Medical Officer of Health, Bareilly.

This revision is accordingly allowed. The proceedings, being void ab initial in the absence of a valid sanction, are hereby quashed.

Without expressing any opinion, I may observe that it is always open to the prosecuting agency to prosecute the accused in accordance with law.