Sham Sunder and Brothers vs State of H.P. and Another

Bhawani Singh, J.—This petition u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, is directed against the order of Additional Sessions Judge, Kullu in Criminal Revision No. 10 of 1989, decided on 23rd August, 1991, directing the impleadment of the petitioner in Case No. 66-3 of 1989. Let the facts of the case be stated thus:

The Food Inspector took sample of ''Coconut Toffees'' from Janak Raj, a retail seller at Manali. At the stage of taking the sample, the bill of sale was shown to him, however, the petitioner was not added as a party. At a later stage, when the report as to the substandard nature of the food article was received from the Central Food Laboratory, Mysore, an application u/s 20-A of the Food Adulteration Act, 1954 (hereafter in short ''the Act''), was moved to implead the petitioner in the case. This action was challenged before the Sessions Judge, Mandi who allowed the plea and set aside the order of impleadment made by the trial Judge. In the order, it was observed that in case the applicant could produce more evidence to connect the petitioner with the case, he could do so and the trial Court could implead the petitioner in case the evidence so warranted. Accordingly, Janak Raj adduced some evidence. This evidence included sale bills, seizure by Excise & Taxation Department of certain goods of the petitioner and local sales in favour of certain customers, showing that the petitioner used to sell coconut toffees wrapped as such, but in the bill they were described as "Goli Khand Bina Rang". After looking into the matter, the trial Judge allowed the application and added the petitioner as party to the case.

The order was challenged before the Additional Sessions Judge, Kullu who has disallowed the plea of the petitioner, hence this petition.

Shri A. K. Goel, learned counsel for the petitioner, has submitted that the impugned order deserves to be set aside, since it has erroneously taken into consideration some evidence which has no relevance to the case. According to Shri Goel, this kind of evidence is not at all permissible to be taken into consideration to demonstrate that the petitioner is answerable for the sale of the article in question.

Shri M. L. Chauhan, learned Assistant Advocate General, submits that the petitioner can take this plea during the trial and at this stage he may not be allowed to come forward with this plea.

I have examined the matter carefully. There is no dispute that the petitioner sold the food article against a proper sale bill. In it, the food article has been described as "Goli Khand Bina Rang" and not coconut toffees. The petitioner is to be connected with the food article only through the bill of sale, otherwise, it is not possible to accept any other kind of evidence, more specially, the one which is sought to be adduced by Janak Raj in this case. The food article is coconut toffees and not "Goli Khand Bina Rang". It is coconut toffees which have been analysed and found adulterated. It was not sold by the petitioner, therefore, he cannot be held responsible for the sale thereof. The submission that the petitioner can raise this question before the trial Court, has no force in view of the finding that the petitioner did not sell coconut toffees and cannot be made liable for the sale thereof in the absence of any evidence in that direction. It is, therefore, desirable that he is not made to face the prosecution when there is no evidence to substantiate it. Almost similar question came for consideration in Satish Kumar Bhatia Vs. State of Himachal Pradesh and Others,

Next it was contended by Shri Goel that sanction order (Ext. PL) in this case is not in accordance with Section 20 of the Act. I have been shown this sanction order available on the case file. It is a blank form, columns of| which have been filled by someone. The Sanctioning Authority has only appended the signatures at the end of it. It cannot be said that the Sanctioning Authority has applied its mind before according the sanction. It has been held in many decisions that sanction is not an idle formality. It is an important function to be discharged seriously and cautiously by the Sanctioning Authority. It has to apply its mind to the facts and the circumstances of each case before it comes to the conclusion that it is in public interest to prosecute the accused. Here, decisions like Jaswant Singh Vs. The State of Punjab, , The Corporation of Calcutta Vs. Md. Omer Ali and Another, 1980 (1) FAC 448 Sewal Ram v. State 1983 (1) FAC 229 Yogendra Nath v. State of U.P., 1979(1) PFC 48 Bhagwan Dass v. State of U.P. 1983 (3) FAC 221 A.K. Roy and Another Vs. State of Punjab and Others, State (Delhi Administration) Vs. Shyam Lal, Criminal Appeal No. 47 of 1985 State of Himachal Pradesh v. Mussa decided on January 6, 1989, Criminal Appeal No. 178 of 1987 State of Himachal Pradesh v. Om Parkash, Criminal Revision No. 20 of 1985 Rattan Lal v. State of Himachal Pradesh decided on August 16, 1989, Miss. Shakun and another Vs. Delhi Administration, Delhi, 1989 (2) FAC 149 (Public Health Department v. Jiwanlal) 1989 (2) Sim LC 7 (State of Himachal Pradesh v. Noor Din) 1989 (2) Sim LC 211 Sukhchain Singh v. State of Himachal Pradesh 1991 (1) Sim LC 76 (State of Himachal Pradesh v. Rup Chand), Criminal Appeal No. 85 of 1988 (State of Himachal Pradesh v. Balo Ram) decided on August 22, 1991, Criminal Appeal No. 16 of 1988 (State of Himachal Pradesh v. Hari Singh) decided on 29th August, 1991, and Criminal Appeal No. 43 of 1988 (State of U.P. v. Jagar Nath) decided on 12th Sept. 1991, can also be quoted.

Shri M. L. Chauhan, learned Assistant Advocate General, placed strong reliance on Two Judge Division Bench of Allahabad High Court in Shahhzadey v. The State 1985 (II) FAC 159, and submitted that the Food Inspector had submitted the documents to the Sanctioning Authority and the sanction was obviously granted on the basis of the record. With respect to the learned Judges, I do not subscribe to the view taken in this case. It cannot be assumed that the Sanctioning Authority looked the documents sent to it by the Food Inspector. The sanction order must disclose the application of mind by the Sanctioning Authority. The application of mind can be seen whether the Sanctioning Authority took care to go into the documents submitted to it and how it was influenced to take the decision to prosecute the accused. Further, it has also to decide how the prosecution of the accused is necessary in public interest. These facts can also be proved in case the Sanctioning Authority comes in the witness box to prove it, otherwise it cannot be presumed that it had applied its mind before according to sanction.

The result of the aforesaid discussion is that for want of legal sanction, the present prosecution cannot be allowed to continue in this case. The proceedings pending in the trial Court in this case against the petitioner as well as respondent No. 2, Janak Raj, are hereby quashed.