State of H.P. vs Mukhtiar Singh and Others

A.L.Vaidya, J.—The present Respondents are being prosecuted u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act for selling adulterated Maida to the Food Inspector.

During the trial the accused had been summoned and put in the accusations u/s 251 Code of Criminal Procedure all of them did not plead guilty and accordingly the trial was fixed for recording evidence of the complaint.

On 12th January, 1990 the trial magistrate passed the following order:

Ld.defence Counsel has stated that this case cannot proceed further as the sanction u/s 20 of the P.F.A. Act granted by CMO Una to launch prosecution against the accused is invalid. In this behalf he has quoted the judgment delivered by Hon''ble Justice Mr. Bhawani Singh of our own High Court in case Om Prakash v. State of H.P. in Cri (M) No. 409/1989 decided on 30-11-1989, wherein it was held that when the sanction granted by the CMO is on printed proforma the columns of which have been filled up by somebody and this document is signed by the CMO does not constitute lawful sanction and, therefore, the accused merits acquittal. The facts of that case exactly fit in with the facts of the present case. Here also the sanction by the CMO is on a printed proforma, the column of which have been filled up by somebody. Keeping in view the legal position the contention of the Ld.defence Counsel is upheld. At this stage Id. Food Inspector has filed an application to examine Dr. K.L. Chadda, CMO to prove that he had applied his mind at the time of granting sanction to launch prosecution against the accused. The application is uncalled for as sanction by itself is void and the case cannot proceed further and, therefore, there is no question of producing the CMO in the witness box. Therefore, the accused are acquitted and the file after completion be consigned to record room.

The aforesaid order of acquittal, on the basis of invalid sanction u/s 20 of the Act, has been assailed in the present appeal on various grounds.

I have heard the learned Counsel for the parties and have also gone through the entire record.

On 12th January, 1990, the order under reference was passed when the case had been fixed for the presence of one of the accused and, admittedly, the evidence of the complainant has not yet been examined.

Needless to say, the trial Magistrate without recording any evidence has come to the conclusion that sanction u/s 20 of the Act has been granted by the CMO on a printed proforma the columns of which have been filled up in hand by somebody else. There is nothing on record to come to that inference. The sanction has not yet been tendered in evidence nor any evidence on record has been examined to infer the aforesaid facts.

The trial Magistrate appears to have based his orders of acquittal on the basis of Cr. Misc. Petition No. 409/89 decided by this High Court. This petition was decided on 30-11-1989. It has been laid down by the learned Judge that application of mind on the part of the authority to the relevant facts should be established on record of a case before a prosecution founded upon a written consent contained in a printed or cyclostyled form wherein the columns had been filled in, though elaborately, by someone else and the signatures of the sanctioning authority appended to it, could be sustained in law. In order to establish the fact of application of mind by the sanctioning authority, the relevant factors have to be established on record by the prosecution.

This Court had the occasion to decide this proposition in Criminal Appeal No. 314/89, decided on 30-8-1994 State of H.P. and Anr. v. Balbir Singh wherein it has been held that it is on the basis of the evidence to be examined during the trial that the validity of the sanction order can be appreciated. In the present case the sanction granted u/s 20 of the Act is on record and on its bare perusal, prima facie, it stands established that after the application of mind and after going through the relevant record the said sanction was granted. At this stage, when the evidence has not been recorded, it cannot be said on any ground, whatsoever, that the sanctioning authority had not applied its mind while granted the sanction. That stage, if at all has not yet come and this aspect of the matter can be dealt with after examining the evidence in that particular regard. The trial Magistrate acted not only illegally but hastily in disposing of the case in a very slip shod manner which course, under the law, was not available to him.

On the basis of the aforesaid discussion, the present order passed by the trial Magistrate suffers from illegality and is accordingly quashed. The complaint is sent back to the trial Magistrate for disposal in accordance with law and as per observations made hereinabove.

Parties are directed to appear before the trial Court on 5th June,1995, before which date the entire record, together with a copy of this order, be sent back to the trial Magistrate to enable him to proceed further with the matter in accordance with law.