Satish Kumar Bhatia vs State of Himachal Pradesh and Others

Bhawani Singh, J.—The petitioner, Satish Kumar Bhatia, a partner of M/s Bhatia Brothers, S.C.F. No. 53, Grain Market, Sector 26, Chandigarh, has filed this petition u/s 482 read with Sections 397/401 of the Criminal P.C. and Article 227 of the Constitution of India against the order dt. 6-5-1986 of the trial court.

The brief facts of this case may be stated as under:

On 27-9-1983, Food Inspector, Shri P.S. Verma, went to the shop of respondent No. 3, Roop Lal Sharma, shopkeeper. He showed his intention of taking sample of sweets for the purpose of analysis. It is alleged that no bill of sale (warranty) was shown at the time of the purchase of this sample. On analysis, the Public Analyst reported that the contents of the sample contained mineral oil and the ash insoluble in dilute HC 1 is O. 28% against the maximum prescribed standard of O. 2%. On the strength of this report, prosecution was launched against respondent No. 3 u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. On a notice having been served upon respondent No. 3, an application u/s 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') was filed by respondent No. 3 on 22-12-1983 showing his intention to get the second part of the sample analysed from the Central Food Laboratory. This report, by this authority, showed the presence of mineral oil and it did not conform to the standard of hard boiled sugar confectionary as laid down in item A.25.01 of the Prevention of Food Adulteration Rules, 1955. This report is dt. 27-10-1984. After the receipt of this report from the Central Food Laboratory on 10-1-1985, an application u/s 20-A of the Act was filed by respondent No. 3 praying for impleading the petitioner as a party as the sample in question was purchased from this Firm. The trial court, vide order dt. 16-8-1985, summoned the petitioner for 30-9-1985. After hearing the parties, the court passed the order of impleadment of the petitioner. The petitioner assails this action by way of this petition on two grounds.

It is contended by Shri A.K. Goel, learned counsel appearing for the petitioner, that Bill No. 7770, dt. 13-9-1983, marked ''X'', indicates only sale of ''Goli'' and does not anywhere describe the sale of ''Goli'' known as ''Jony Sweets''. In other words, it is submitted that the petitioner did not sell ''jony sweets'' which were taken by the Food Inspector for sample purpose and the bill in question proves this fact. Consequently, it is obvious, therefore, that ''Jony sweets'' are not connected with the petitioner through this bill. I see substance in this argument of the learned counsel for the petitioner. From the perusal of this bill and the fact that it was not produced by respondent No. 3 at the initial stage; therefore, it is clearly a case where the prosecution of the petitioner cannot be either initiated or continued on this type of evidence.

The second point pressed by Shri A.K. Goel, learned counsel appearing for the petitioner, as well as Shri Vijay Thakur, learned counsel for respondent No. 3, relates to sanction under Sections 9 and 20 of the Act. It is contended that in the absence of sanction, no prosecution can be initiated and, if so done, the same is without jurisdiction.

Shri M. Section Guleria, learned Assistant Advocate General, has shown Ex. PF to show that sanction has been duly given in this case and the prosecution of the accused is, therefore, quite legal.

Shri A.K. Goel seeks assistance from the judgment of this Court in Criminal Appeal No. 47 of 1985, decided on January 6, 1989, Reported in LR (1989) 2 P&H 119 (Him Pra) (State of Himachal Pradesh v. Mussa) and LR (1989) 1 P&H 416 : 1989 CriLJ 570 (Manohar Lal v. State). On the strength of these judgments, it is argued that this sanction order is no order in the eye of law and the prosecution, therefore, fails on this account alone.

Sanction for prosecution is a very important factor, a condition precedent to the launching of the prosecution. Sanctioning Authority, it is seen, does not attach any importance to this aspect of the matter. Sanction is given routinely as and when sought. This Court has examined this matter in State of Himachal Pradesh v. Mussa, (supra), and Criminal Revn. No. 75 of 1986 (Parkash Chand v. the State of Himachal Pradesh) decided on April 25, 1989, Reported in 1989 FAJ 349 (Him Pra). Perusal of sanction order No. 164, dt. 21-11-1983, clearly evidences that it is a cyclostyled form filled by someone and the Local (Health) Authority has only appended its signature to this document. It presents a strange phenomenon. The contents of this document are

"......after going through the report of Public Analyst and other relevant documents in respect of sample of Hard boiled Sweet Golian taken from Roop Lal Sharma by Shri Prem Singh Verma Teh. Sarkaghat, Food Inspector District Mandi on (date) 27-9-1983 at Baldwara (spaces underlined filled up by someone, as observed above) and also after applying my mind fully in the case is of opinion that it is a fit case for launching the prosecution under Sections 7 and 16 of the PFA Act, 1954. Therefore I authorise Shri Prem Singh Verma to launch the prosecution u/s 20(1) of the said Act. "The contents of this document may appear to be correct but it does not, in any way, improve the case of the prosecution. In fact, it is a farce because the important facts for constituting application of mind by the Authority and looking into the documents before coming to the conclusion to allow sanction are in a cyclostyled form which makes things all the more casual and automatic. Therefore, there is force in the submissions of the learned counsel appearing for the petitioner as well as respondent No. 3.

It is essential to seek assistance from AIR 1948 82 (Privy Council) wherein it is observed thus:

"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction..... A sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943."

Equally importants are the observations in Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, where Section Murtaza Fazal Ali, J., speaking for the Court, in para-3 observed as under:

"......What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore by strictly complied with before any prosecution be launched against the public servant concerned."

After examining the matter in the light of the principles discussed above, I am of the opinion that the prosecution of the petitioner as well as respondent No. 3 in this case is bad and the same is accordingly quashed and they are discharged of the bail bonds and surety bonds, if any, executed by them at any stage of the case.