Ram Sarup vs State of Punjab

Ujagar Singh, J.—Food Inspector Nek Chand Goyal intercepted Ram Sarup, revision-petitioner on 20-7-1983 at 8-40 a.m., near Bus Stand, Dhuri. He found him to be in possession of 10 kg. of mixed milk, contained in a drum. Out of the same, a sample of 660 ml. was purchased for an amount of Rs. 1/80 paise. Documents Exs. PA, PB and PC were prepared at the spot. Sample was divided into 3 parts, pouring the parts in 3 separate dried and clean bottles. After doing the needful, one sample was sent to Public Analyst and the other two were deposited with the Local (Health) Authority. Report of the Public Analyst is Ex.PD, according to which, milk fat was 5.4% and milk solids not-fat were 7.4%. Thus, milk-solids not-fat were defficient by 13.0 per cent of the minimum prescribed standards. Ex. PF is the notice sent to the petitioner by registered, acknowledgment due post. Ex. PF/1 is the acknowledgment due receipt, showing receipt of notice. Ex. PF/2 is the postal receipt for sending registered acknowledgment due letter. Ex. PG is the affidavit of Kidar Nath, Peon. According to the same, he took a sample given by Food Inspector Nek Chand Goyal, along with Form No. VII duly sealed and separate packets, in the evening time. Both these packets were handed over by him on 21-7-1983 in the office of the Public Analyst. Report Ex. PD by the Public Analyst clearly shows that this sample was received on 21-7-1983 from Food Inspector Nek Chand Goyal relating to mixed milk. The Food Inspector was accompanied by Dr. Mukesh Gupta In support of prosecution case, Food Inspector Nek Chand Goyal himself stepped into the witness box as PW 1. According to him, persons who were called to witness the proceeding did not agree to sign. Rather, they refused to do so. Dr. Mukesh Gupta (PW 2) supported the version of Food Inspector Nek Chand Goyal. Sri Kishan (PW 3) is a clerk from the Local (Health) Authority, Sangrur who has proved that the said Food Inspector had deposited two packets of the sample in his office. It is further proved by him that Ex. PD was received regarding the analysis of the sample on 23-8-1983 and was handed over to Food Inspector Nek Chand Goyal. On 2-9-1983, prosecution was launched and information was sent to the petitioner vide letter Ex. PF. The defence of the petitioner was that he came to supply milk in the milk centre and Food Inspector got his signatures on the representation that the petitioner was to appear as a witness. He examined, in his defence, Ram Dial (DW 1) and Bakhshish Singh (DW 2) who have supported the version of the petitioner, but their statements do not fix the date and time when the petitioner is said to have come to the milk centre.

After going through the file, the trial Court convicted the petitioner u/s 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (the Act in short) and sentenced him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/-. In default thereof, he was directed to suffer further R1 for 3 months. The petitioner has challenged his conviction and sentence before the Court of Session, i but his challenge was declined. The defence of the petitioner was rightly disbelieved

The learned Counsel for the petitioner has raised an argument that the notification authorising Shri Nek Chand Goyal to prosecute the petitioner was ultra vires the provisions of Section 20(1) of the Act and he urges that he is supported by an authority of the Supreme Court in A.K. Roy and Another Vs. State of Punjab and Others, .

I have heard the learned Counsel and gone through the papers thoroughly. The complaint Ex. PE shows that Shri Nek Chand Goyal was appointed as Food Inspector vide notification No. EIV- 1-pb-73/1872 dated 9-3-1973 u/s 9 of the Act. The said notification is reproduced as:

In exercise of the powers conferred by Section 9 of the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954) read with Rule 8 of the Prevention of Food Adulteration Rules, 1955 and the powers delegated, vide Punjab Government Notification No. 5576-2 HBII-68/29659, dated 10th Oct. 1968, Sarvshri Nek. Chand Goyal, Dhani Ram, Som Parkash Chopra, Balwant Singh and Sarbjit Singh Sikand are hereby appointed as Food Inspectors for the notified areas of the district in which they have been posted.

In exercise of the powers conferred by Section 20 of the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954) read with Punjab Government Notification No. 5575-2 HBII-68/29659, dated 10th Oct. 1968, they are authorised to institute prosecution against the persons committing offences under the said Act within the limits of their notified areas.

Sd/- Director, Health and Family Planning, Punjab.

This notification shows that Shri Nek Chand Goyal 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 was himself delegated the powers vide the Punjab Government Notification dated 10-10-1968, ibid u/s 9 read with Rule 8 of the Prevention of Food Adulteration Rules, 1955. It is further revealed that u/s 20 of the Act, the Director had been delegated the powers vide Punjab Government Notification dated 10-10-1968 quoted above.

u/s 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 u/s 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 and Another Vs. State of Punjab and Others, 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 authorised

In that case, same notification had been issued and the powers had similarly been delegated to the Director vide the same earlier notification The prosecution in this case 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 u/s 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 by it under the Act as may be specified in the order of the Food (Health) Authority of the State of Punjab.

It was ultimately held as under:

In the case of statutory powers the important question is whether on a true construction of the Act, it is intended that a power conferred upon A may by exercised on A''s authority by B. The maxim delegatus non potest delegare merely indicates that this is not normally allowable but the legislature can always provide for sub-delegation 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 sub-delegation. That apart, a rule framed u/s 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 to authorise launching of prosecutions for an offence under the Act which is in the nature of a safeguard, the courts may be disposed to 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 the 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 drafts men 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 prosecutions" may lead to the consequence that the Food (Health) Authority who had been delegated the power of the State Government u/s 20(1) of the Act could, in his turn, sub-delegate 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 sub-delegation of powers of 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 (Health) Authority being the person authorised u/s 20(1) of the Act to give his written consent for the institution of such prosecutions by the Food Inspector, Faridkot as laid down by this Court in The State of Bombay Vs. Parshottam Kanaiyalal, and The Corporation of Calcutta Vs. Md. Omer Ali and Another, respectively.

In view of A.K. Roy and Another Vs. State of Punjab and Others, , 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.