State vs Balamurugan

J.A.K. Sampathkumar, J.—This Criminal Appeal is filed against the Judgment dated 26.8.1999 in S.T.C. No. 1254 of 1998 on the file of the learned Judicial Magistrate No. I, Madurai in and by which the learned Judge after analysing the evidence found that the accused is not guilty for the offence u/s 7(1) and 16(1)(a)(i) read with 2(1a)(a)(b) (m) of Prevention of Food Adulteration Act Rule 5, 23, 29 of PFA Rules and acquitted him u/s 255(1)Cr.P.C.

The brief facts of the case are as follows:

P.W.1-Food Inspector of Madurai Corporation. As per the various Government orders he was authorised to take food sample under the Act.

On 28.5.1998 at about 10.00 a.m., P.W.1 went to the provision shop in the name of Pappa store situated at No. 72 A, Munisalai Raod, for the purpose of taking sample for public Analyst. P.W.1 introduced himself as Food Inspector and informed his purpose for taking sample of green gram meant for sale for the public Analyst. He purchased 750 grams of green gram for Rs. 21/- and obtained a cash receipt for the same. Ex.P.3 is the cash receipt. He purchased the sample in presence of P.W.2. Ex.P.4 is form -6. He also obtained a statement from the accused. Ex.P.5 is the statement of the accused.

Thereafter, he divided the sample into three equal parts, packed and sealed as per the rules and affixed his signature and also obtained signature of the accused over the same. Then, he affixed the specimen seal impression in form VII and sent a copy of the same along with sample bottle through Southern lorry Service for public analyst. He also informed the same to the local authority and submitted two remaining bottles for safe custody. Ex.P.9 is the intimation given to the local authority. Ex.P.10 is the lorry receipt. Ex.P.11 is the white paper containing specimen impression seal. Ex.P.12 is the postal receipt. Ex.P.13 is the acknowledgment. Ex.P.14 is the acknowledgment of the local authority. Ex.p.7 is the P.W.1 report.

In pursuance of analysis, public analyst found that the sample containing Tar-Dragin and is unfit for human conception. Ex.P.15 is the report. P.W.1 then obtained sanction for prosecution of the accused. Ex.P.16 is the requisition. Ex.P.17 is the sanction order. In pursuance of that P.W.1 laid a complaint. Ex.P.18 is the complaint. Thereafter, he sent a notice to the accused u/s 13(2) of the Act along with analysis report for further action. Ex.P.19 is the Notice. Ex.P20 is the signature of the accused in cash receipt. Ex.P.21 is the signature of the accused in form VI. Ex.P.22 is the statement of the accused and acknowledgment.

Petitioner examined as P.W.1 and Mr. Natarajan examined as P.W.2 and marked Exs.1 to 23 to prove the guilty act of the accused. No oral and documentary evidence let in on the side of the accused.

The trial Court after analysing the evidence found that the accused was not guilty for the charges and acquitted him accordingly. Against which, the present appeal has been filed by the state on the following grounds.

a. The trial Court has erred in acquitting the accused on the ground that evidence of P.W.1 was not corroborated by another witnesses which is against the principle laid down in the decision reported in 1993 LW (Cri)1.

b. The trial Court has erred in holding that the Food Inspector has not followed the mandatory provisions as he has not verified the bottles whether it is clean or not before taking samples in it, which is against the materials available on record.

c. The trial Court erred in holding that sanctioning to prosecute the case are due to non application of mind by the sanctioning authority which is against the principles laid down in the decision reported in 1993 M.L.J. (Crl.) 708, as such, the defect in the sanctioning order is curable.

d. Other reasoning given by the learned magistrate for acquitting the accused are not sound and convincing.

Heard Mr. P.Rajendran, learned Government Advocate appearing for the appellant and no appearance on behalf of the respondent.

The learned Government Advocate reiterated the contention raised in the grounds of appeal and submitted that the acquittal order is erroneous and the same is liable to be set aside.

Upon hearing the claims, the points for consideration are as to whether

non application of mind while according sanction is fatal to the prosecution?

the Food Inspector followed the mandatory provision before taking the sample for public analyst?

the finding of the trial Court in acquitting the accused is in order?

POINTS 1 and 3

The facts on record would show that the Local Health Authority has granted sanction without analysing the materials placed before him. The learned Government Advocate has submitted that the sanction of prosecution without applying mind by the competent authority will not be fatal to the prosecution, as such act is curable. He also relied on the decision in Pushpalatha and Ors. v. R. Lakshmi, Food Inspector, Coimbatore 1993 Madras Law Journal Reports (Criminal) page 708 in support of his claim. I have gone through the said ruling. In fact this ruling is against the submission of the learned Government Advocate. The principle laid down in the said ruling reads as follows:

A conjoined reading of Section 20(1) of the prevention of Food Adulteration Act would clearly envisage that the duty of the Local Health Authority or the competent authority in according its sanction for prosecution would not amount to or cannot be taken as an empty formality but however, it was clearly and demonstrably made out by the Courts of Law in this country that the intention of the legislature in providing for the competent authority to sanction to launch the prosecution for offences under the Act, to be exercised with due care and caution, which would mean, that they should go into all the materials and records placed by the Sanitary Inspector pertaining to the relevant facts constituting the offences and then only, on being satisfied with the materials underlying the records, prima facie atleast, the competent authority has to record its sanction and it cannot be taken that it has to accord its sanction so mechanically without applying its mind and this process, has been in built in the above section for the simple object that vexatious launching of the prosecution is to be avoided at any cost and that was the one and only reason, the according of sanction u/s 20(1) of the Act has been provided in the enactment. Thus, it is the well settled judicial view, that the Local Health Authority while according its sanction to its sanitary Inspector or any other person to launch the prosecution against any person, must apply its mind to all the relevant materials and papers placed before it and on being satisfied with the prima facie against the person against whom the offence is alleged, then for the reasons expressly to be stated, he must accord the sanction for prosecution. Otherwise, it goes without saying, that the sanction accorded is bad in law and not in compliance with the legal mandate inbuilt in the above section. I have carefully perused the so-called sanction accorded by the Health Officer and Local Health Authority on 4.7.1986 in six words - sentence as above stated. The so- called sanction does not even visualise any perusal of the records produced before him, nor even the competent authority has satisfied with the prima facie materials available in the records placed before him in according the sanction. In the light of the above legal laches pointed out by the learned Counsel Mr. Gopinathan, I am fully satisfied to hold, that the sanction accorded in this case, is bad in law and is clearly in the teeth of Section 20(1) of the Prevention of Food Adulteration Act and accordingly, no prosecution can be launched.

In fact, this Court followed the legal ratios enunciated in the following rulings and laid down the above principles of law:

A.K. Roy and Another Vs. State of Punjab and Others, by a single Judge of the Allahabad High Court State v. Appuswami 1980 L.W.(Crl.) 196 (a ruling of this Court) Ramandhal Srivabhai Prajapati v. State of Gujarat (1991) 1 E.F.R. 547 (a ruling of the Gujarat High Court), Shyam Lal v. State (1991) 2 E.F.R. 277 ( a ruling of the Delhi High Court), Adda Kasivisweswara Rao v. State of A.P. (1991) 2 E.F.R. 416

In fact, the trial Court has taken note of the guidelines of this Court and Apex Court and rightly came to the conclusion that sanctioning prosecution due to non application of mind by the sanctioning authority is fatal to the prosecution and accordingly, acquitted the accused. The finding of the trial Court in in order and does not require any interference. Hence, these points are answered accordingly.

Point No. 2

In view of the finding rendered at Points 1 and 3, I am of the view that consideration of this point does not arise for consideration. Hence this point is answered accordingly.

In the result, appeal fails and the same is dismissed. Parties have to bear their cost.