State vs Appuswami and Another

Varadarajan, J.—This Criminal Appeal has been filed by the State represented by the Public Prosecutor against the acquittal of both the accused in C.C. No. 503 of 1976 of the Judicial First Class Magistrate No. 1, Salem, against whom the Food Inspector, Salem Municipality (P.W. 1) filed a complaint under S. 7(1) read with S. 16(1)(a)(1) and 3(1)(a)(1) of the Prevention of Food Adulteration Act, 1934 and R. 44 (b) of the Prevention of Food Adulteration Rules.

The case of the prosecution was that the 1st Accused Appuswami was a salesman in charge of the grocery section of Ponni Super Market, Salem, working under the control of the 2nd accused, R. Narasimhan, the General Manager of the said Super Market. On 27th March, 1976, at about 10:20 A.M., A-l sold 375 Grams of gingelly oil for sample No. 3145 for Rs. 2-64 to the Food inspector, 18th Division, Salem Municipality, on behalf of the 2nd accused. The sample, on analysis, was found to contain a mixture of 86 per cent of gingelly oil and 14 per cent of groundnut oil. The sanction order Ex. P. 6 was issued by the Health Officer, Salem Municipality, wrongly mentioning S. 6(a)(1) instead of S. 16(1)(a)(1) of the Prevention of Food Adulteration Act. After the commencement of the Trial, a revised sanction order, Ex. P 8 was issued mentioning the correct section as S. 16(1)(a)(l) of the Prevention of Food Adulteration Act.

The prosecution examined P.W. 1, the Food Inspector who purchased the oil and obtained the sample, and P.W. 2, who attested the sampling process, to prove its cases that the 1st accused sold gingelly oil to P.W.1 under the receipt Ex. P. 2 and produced the report Ex.P 4 of the Public Analyst, Guindy, Madras, to show that the gingelly oil was adulterated with 14 per cent of groundnut oil. The learned Judicial First Class Magistrate No. 1, Salem, found the sanction order to be invalid on the ground that Ex. P 8 has not stated that it was issued in superseding was present when P.W. 1 took sample oil at the Super Market at 10:30 A.M., on 27th March, 1976 and that he attested Exs. P 1 to P 3. The learned Judicial First Class Magistrate No. 1, Salem, rejected the evidence of P.W. 1 for want of corroboration and held that the prosecution has not proved the case against both the accused and acquitted them. This Criminal Appeal has been filed, as already stated, by the State against the acquittal of the accused.

On the facts, it is not possible to agree with the learned Magistrate that the prosecution has not proved the fact of sale of gingelly oil by the 1st accused to P.W.1 the Food Inspector, and the issue of Ex. P 2 receipt. The 1st accused denied the fact of sale in his statement recorded under S. 313, Crl. P.C. by denying any knowledge of the same. It is not possible to accept this denial by the 1st accused, for, he could not deny knowledge of the fact whether he sold gingelly oil for Rs. 2.64 to P.W; 1 under Ex. P 2. P.W. 2 has supported the case of the prosecution to a certain extent. He is running a tea shop near the Government Hospital and knows P.W. 1. He has stated that he had signed in Exs. PI to P 3 on 27th March, 1976 at 10:30 A.M., while P.W, 1 took samples of the oil at the Super Market. He bits only added that he does not know who sold the oil to P.W. 1. Ex. P 1 is the report of P.W. 1 to the effect that on 27th March, 1976 he had taken from the premises of Ponni Super Market sample of gingelly oil for having the same analysed by the public Analyst. Ex. P 2 is the receipt issued for the sale of 375 grams of gingelly oil for Rs. 2.64 on 27th March, 1976. This receipt has been issued as selling agents of Thiruchengode Cooperative Marketing Society Limited. P.W.l''s evidence is that the 1st accused was the Salesman of the Ponni Co-operative Super Market, that on 27th March, 1976 at about 10:25 A.M. when the 1st accused was selling oil, he asked him to give sample of gingelly oil for analysis and purchased 375 grams of gingelly oil from the 1st accused on payment of Rs. 2.64 and obtained a receipt Ex. P2 from the 1st accused. In his cross examination he has stated that he has purchased the oil only from the Ponni Co-operative Super Market under the respect. (sic) he has admitted that in Ex-P2 there is no word or seal to show that it relates to Pouni Co-operative Super Market. What has been elected in the cross-examination of P. W. I is not sufficient to discredit his evidence that he purchased 375 grams of gingelly oil for Rs. 2. 64 from the 1st accused at the Ponni Cooperative Super Market, Salem, and obtained cash receipt Ex. P2 from him. In a similar case, K.N. Mudaliyar. J. has observed in Public Prosecutor v. Subban Chettiar 1976 Mdul. Crl. (sic) thus :-

S. 134 of the Evidence Act makes it clear that any fact could be proved even by a single witness. There is a recent trend in cases of this type and similar cases that the attesting witnesses always turn hostile and by reason of the attesting witnesses turning hostile there is a tendency on the part of the Courts below to disbelieve the evidence of the Food Inspector. This trend is really deplorable and the Courts below would do well to keep S. 134 in view and then appreciate the evidence of the Food Inspector by that standard laid down in S. 134 of the Evidence Act.

That Section lays down that no particular number of witnesses shall in any case be required for the proof of any fact. The evidence of P. W.l that he purchased 375 grams of gingelly oil from the 1st accused at the Ponai Co-operative Super Market for Rs. 2.64 under the receipt Ex. P2 is acceptable. The learned Magistrate has grievously erred in not accepting that evidence on the mere ground that P. W. I has turned hostile to the prosecution and there is no oral evidence to corroborate the evidence of P. W.I. the Food Inspector about the purchase of gingelly oil by him from the 1st accused under the receipt Ex. P2. The learned Magistrate erred in not placing any reliance on Ex. P2 even in the light of the evidence that P. W. I had purchased oil from the 1st accused at the Super Market under Ex. P2, on the mere ground, that Ex. P2 does not contain the seal of the Ponni Co-operative Super Market. I find, on the evidence of P. W. I, and having regard to Ex. PI and Ex. P2, which are attested by P. W. 2, that the 1st accused sold 375 grams of oil as gingelly oil to P. W.l on 27th March, 1976 under the receipt Ex. P 2.

The evidence of P. W. 1 is that he divided the oil so purchased by him into three equal parts, and poured the same in three clean, dry empty bottles, packed and sealed them, affixed label No. 3145 and gave one of such bottles to the 1st accused and obtained his acknowledgement Ex. P3, which as already stated was attested by P. W.2, and he sent the second bottle to the Public Analyst, Guindy and produced the third bottle (M. O. I) in the Court, and received the analyst''s report, Ex.P4, which is to the effect that 86 per cent was gingelly oil and 14 per cent was groundnut oil. On the basis of this evidence of P.W.I and Ex. P4,1 find that the oil sold as gingelly oil by the 1st accused to P.W.I under Ex.P2 was adulterated in that only 86 per cent was gingelly oil and the remaining 14 percent was groundnut oil.

There is no evidence to show that the 2nd accused, as the General Manager of the Ponni Co-operative Sutler Market, was in over-all charge of the super market. Therefore, the prosecution has not proved the involvement of the 2nd accused in the sale of the adulterated gingelly oil by the 1st accused to P. W. 1.

The prosecution cannot succeed in the case notwithstanding the fact that it has established satisfactorily that the 1st accused sold to P. W. 1 on 27th March, 1976 oil as gingelly oil and that it was adulterated in that, it contained only 86 per cent of gingelly oil and 14 per cent of groundnut oil. It has to show that there is valid sanction under S. 20 of the Prevention of Food Adulteration Act for prosecuting the accused in this case. S. 20 of the Prevention of Food Adulteration Act 1954, as it stood at the relevant time, laid down that no prosecution for an offence under this Act, shall be instituted except by or with written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority. The sanction order Ex. P6 relating to Sample No. 3145 had been issued by the Municipal Health Officer authorising the Sanitary Inspector, Division No 6. to prepare and submit charge sheets in three day a under Ss. 7(1) and 6(1)(a)(i) read with S. 2(1)(a)(i) and R. 44 (b). It is seen from the judgment of the learned Magistrate that during the trial it was found that there was mistake in Ex. P6, in that. S. 6(l)(a)(i)ia referred to instead of S. 16(1)(a)(i) of the Prevention of Food Adulteration Act. That mistake has been rectified: in Ex. P8. It does not no doubt state that Ex. P8 has been issued in suppression or modification of Ex. P6. But having regard to what happened during the trial and the subsequent production of Ex. P8, it has to be held Ex. P8 sanction has been accorded fry the Municipal Health Officer enabling the Sanitary Inspector, Division No. 6 to prepare and submit charge-sheets in three days under Ss.7(I) and 16(1)(a)(i) read with S. 2(t)(a)(i) and R.44 (b). It is seen from the evidence of P. W. 1 that at the relevant time he was Food Inspector in charge of Division No. 18. As already stated, Exs. P6 and P8 have been issued authorising the Food Inspector, Division No. 6 to prepare and submit charge-sheets in the case relating to Sample No. 3145. Unfortunately, there is no evidence to show that when Exs. P6 and P8 were issued, P.W. 1 had been transferred from Division No. 18 to Division No. 6, This is a serious lacuna in the case of the prosecution. What is more, Exs. P6 and P8 do not contain anything intrinsically to show that the Municipal Health Officer who issued Ex. P6 and the Commissioner, who was In charge as Municipal Health Officer, and has issued Ex. P8, have applied their minds to'' the facts of the case and satisfied themselves that there was prima facie case of adulteration of foodstuff by the 1st accused in the present case. In this connection, the learned counsel for the accused invited my attention to three decisions in support of hit contention that the sanction is invalid in law. In Bijai Lal v. State AIR 1965 Raj 96 it has been held that the authority instituting the prosecution or authorising the prosecution by his consent should apply his mind to the alleged'' commission of an offence by the. accused person and should be satisfied that the accused has to be prosecuted for the Said offence. In Sanatan Shau v. The Purl Municipality (1973) P.F.A.C. 57. Acharya, J. of the Orissa High Court has observed that the sanction should indicate that the authority or the person giving the written consent was himself satisfied about the correctness of the allegations against the accused and the Court before proceeding with the case must be satisfied that the authority or the competent person, has per S. 20 of the Act, has actually applied its mind and has given the consent required under that section. In a recent decision, Ratnavel Pandian, J. has observed in Ramakriskna Reddiar v. State 1978 L.W.(Crl.) 116 thus :

It may be that all the papers connected with both the cases and the letter of the Inspector General of Police relating to those cases had been sent to the sanctioning authority. But the mere production of the documents before the sanctioning authority by itself would not go to show that the sanctioning authority bad perused the documents and applied his mind to the facts contained therein. There is absolutely no evidence to show what were the contents of the letter sent by the Inspector General of Police, nor is the said letter produced before the Court. Therefore, the Court cannot draw an inference that the said letter contained all the facts that were necessary to enable the sanctioning authority to accord sanction. The view of the lower appellate Court taken on this aspect is totally incorrect since It stands unsupported by the evidence on record. When it does not appear on the face of the sanction that the sanctioning authority applied his mind in the tight of the observations made by the Supreme Court cited above, the prosecution must establish by extraneous evidence that the sanction was accorded by the sanctioning authority after all those facts had been placed before the authority and that the said authority applied his mind.

In that case, the learned Judge held that the prosecution had failed to satisfy that the sanction order in question was legally a valid one, which is a prerequisite condition for conferring jurisdiction on the Criminal Court to try the case and that the lower appellate Court has committed a manifest illegality by taking a wrong view of the matter. There is no extraneous evidence in this case to show that the Municipal Health Officer who issued the first sanction order and the Municipal Commissioner, who was in charge as Municipal Health Officer and alias issued Ex. P8, had applied their minds to the facts of the relevant case and come to a prima facie conclusion that any offence under the Prevention of Food Adulteration Act had been committed by any of the accused in this case. Therefore, I hold that the prosecution has failed by reason of this fact. Accordingly, the appeal fails and is dismissed.