State vs Baljeet

J.P. Chaturvedi, J.—This is an appeal by the State of Uttar Pradesh against an order of the learned S.D.M. Meerut dated 27th September, 1972 dismissing a complaint by the Food Inspector against Baljeet Respondent.

On 30th October, 1971 at 8.00 A.M. at Medical College, Meerut Beljeet was found selling buffalo milk. The Food Inspector took sample of the milk, divided the same in three equal parts, packed and sealed each part and sent one of them to the Public Analyst. The Public Analyst found the sample milk to be adulterated being deficient in fatty content by about 7 percent and in non-fatty solids by 27 percent. The Food Inspector having obtained consent of the District Medical Officer of Health, Meerut for prosecution of Baljeet filed a complaint on 16th March, 1972. The learned Magistrate dismissed the complaint on the ground that the complainant had failed to appear before him in spite of several opportunities having been given to him.

Aggrieved against this order the State of Uttar Pradesh filed an appeal in this Court. The appeal was admitted and notice was issued to the Respondent. On behalf of the Respondent it has been contended that the appeal was not maintainable as it has not been filed by the complainant as required by Section 417(3) Code of Criminal Procedure, 1898.

Section 20 of the Prevention of Food Adulteration Act provides that no prosecution for an offence under this Act, not being an offence u/s 14 or 14A, shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorized in this behalf by the Central Government or the State Government.

The State Government authorized the District Medical Officer of Health to institute or to give written consent for instituting prosecution in rural and urban areas within their jurisdiction including Municipal areas. It was in pursuance of this notification dated December 16, 1955 that the Food Inspector obtained the consent of the District Medical Officer of Health and the latter gave consent. It is evident, however, that the complaint was made by the Food Inspector. For all intents and purposes he was the complainant within the meaning of Section 417(3) Code of Criminal Procedure and as such the Food Inspector alone could file the appeal.

In State through Medical Officer of Health v. Ishwar Saran 1964 AWR 106 it was held it is the complainant alone who is competent to file the application for obtaining leave to appeal and then institute the appeal if leave is granted. The person who was not the complainant before the trial court has no right to go up in appeal against the order of acquittal. A complainant is he who ''moves the machinery of a magisterial court by making certain allegations before it for taking action against a person who has infringed the law The endorsement on the complaint of the Food Inspector by the Medical Officer clearly showed that he had thereby only given his consent to the Food Inspector(sec)n for instituting the prosecution and than(sic) alone would not make the Medical Officer a complainant in the case. In the present case also the Food Inspector was the complainant and neither the District Medical Officer of Health nor the State Government were complainant. The appeal is, therefore, not maintainable.

The appeal is, therefore, dismissed.