The Food Inspector vs M. Pandarinath and Another

Immaneni Panduranga Rao, J.—The learned Public Prosecutor preferred these Criminal Appeals challenging the acquittal of the respondents on the simple ground that the written consent given u/s 20 clause (1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') is vitiated for not giving the detailed reasons. The basis of acquittal of the accused is two decisions of single Judges of our High Court reported in B. Raja Gowd v. State (Food Inspector) 1990 (2) ALT 546., and in Adda Kasivisweswara Rao Vs. State of Andhra Pradesh, .

The learned Public Prosecutor challenging the acquittal submitted that the decisions referred to above which constituted the main basis for acquittal in cases arising under the Act, proceeded without drawing the distinction between the words "written consent" used in Section 20 clause (1) of the Act and the "sanction" for prosecution required under some other enactments. The learned Public Prosecutor submitted that Y. Bhaskar Rao, J., placed reliance upon the decision in A.K. Roy and Another Vs. State of Punjab and Others, ., and proceeded on the basis that the sanction order must contain what is adulterated as per the report of the Public Analyst what material it has perused and then what are the reasons for granting the sanction in the light of public interest. The learned Public Prosecutor submitted that the decision of the Supreme Court reported in A.K. Roy v. State of Punjab AIR 1986 SC 2160., which is the basis of the decision by Bhaskar Rao, J., mainly considered the question of further delegation of powers A.K. Roy and Another Vs. State of Punjab and Others, u/s 20 of the Act by the person authorised by Central or State Government. The learned Public Prosecutor submitted that unlike the sanction which requires the authority to go through the entire material and apply its mind before according sanction, the written consent as contemplated u/s 20 clause (1) of the Act, need not give all these details and it is sufficient if the written consent indicates the material placed before the competent authority while considering the question of according written consent and that it has applied its mind to the said material placed before it. The learned Public Prosecutor further submitted that the granting of written consent being an. official act, a presumption should be drawn u/s 114 of the Indian Evidence Act that the official acts have been regularly performed.

In Criminal Appeal No. 273 of 1991 Smt. C. Vineetha Reddy has been appointed as Amiens Curias to assist the Court in arriving at the proper decision in the case. Sri C. Padmanabha Reddy advanced arguments in Criminal Appeal No. 849 of 1991.

Smt. Vineetha Reddy relying upon the definition of the word "sanction" in Venkataramaiya''s Law Lexicon argued that the word ''sanction'' and ''written consent'' are interpreted as synonymous terms and therefore consent in writing must postulate the giving of reasons by the consenting authority. According to her whether the word used is sanction or written consent, in either case the mind of the consenting authority which is the basis and which balances the good and evil before giving its approval to the action proposed to be taken for prosecuting the accused for an offence must be indicated in the order.

She has referred to the decision of the Supreme Court in State of Bombay v. Parshottam Kanaiyalal, AIR 1961 SCI. In that case the written consent did not in terms name the person in whose favour the written consent was given. The Madras High Court has acquitted the accused holding that the written consent, without mentioning the person to whom such consent or sanction was given, would not be sufficient compliance with the terms of the sanction and consequently held that the institution of the prosecution was without jurisdiction. The learned Judges of the Supreme Court disagreeing with that view held that in that case the Analyst''s Report was before the Chief Officer of the Municipality and it was after considering that report and the connected documents that the written consent or sanction was given. Their Lordships further held that the written consent was for launching of a specified prosecution. Therefore, the learned Judges held that the written consent issued u/s 20 clause (1) of the Act was proper and allowed the appeal.

It therefore follows from the earliest decision of the Supreme Court, considering the scope of Section 20 clause (1) of the Act that the authority granting the written consent must have the Analyst''s Report and other connected documents before him and that the order should indicate that the written consent is for launching of a specified prosecution.

The decision of Bhaskar Rao, J. reported in A. Kasi Visweswara Rao v. State of Andhra Pradesh (2 supra), of M. Ranga Reddy, J. reported in B. Raja Gowd v. State (Food Inspector) (1 supra) and of the Bombay High Court in Gahininath v. State of Maharashtra AIR 1961 SCI., proceeded on the basis that u/s 20 clause (1) of the Act sanction is required for launching prosecution. But the learned Judges overlooked the crucial fact that "sanction" is distinct from "written consent". The learned Public Prosecutor has pointed out that the words "written consent" are used in Section 31 of the Insecticides Act, Section 33 of Drugs and Cosmetics Act, Section 7 of Explosives Substances Act and Section 20 of the Prevention of Food Adulteration Act. Smt. Vineetha Reddy has pointed out that Section 399 clause (3) of the Companies Act, 1956 also refers to the written consent of other share holders for initiating action. In contra distinction with the words " written consent" the word "sanction" is used in Section 19 of the Prevention of Corruption Act 1988, Section 6 of Prevention of Corruption Act (old), Section 197 Cr.P.C, and Section 39 of the Arms Act.

When the Legislature has advisedly used a different terminology in a particular set of enactments and an entirely different terminology in another set of enactments and making the "written consent" in one set of circumstances and the "sanction" in other set of circumstances, as the basis for initiating prosecution or any other action, it cannot be said that the Legislature did not intend to give a different meaning for these two terminologies used by it. Otherwise there is no reason why the word "sanction" should not have been used even in Section 31 of the Insecticids Act, Section 33 of Drugs and Cosmetics Act, Section 7 of Explosives Substances Act and Section 20 of Prevention of Food Adulteration Act. On a consideration of the different language used in these two sets of enactments, we are of the view that the concept of "written consent" was thought of in certain enactments to prevent frivolous prosecution against the accused under some enactments and in order to make sure that the consenting authority has considered the relevant material before according consent. The Legislature in its wisdom thought that the "written consent" of such authority should be given as a condition precedent for launching prosecution. On the other hand, "sanction" is required to launch prosecution for offences which are more serious in nature where the sanctioning authority is expected to apply its mind and give its reasons in according sanction whereas such a requirement is not strictly needed while granting "written consent".

Both Smt. Vineetha Reddy and Sri C. Padmanabha Reddy argued that the Supreme Court in A.K. Roy v. State of Punjab (3 supra) has interpreted the written consent required u/s 20 clause (1) of the Act as postulating that the designated authority should satisfy himself that there exists a prima facie case, that the reasons must be recorded and that the consent must state mat consent was accorded in public interest. We have carefully gone through the decision of the Supreme Court in A.K Roy v. State of ''Punjab (3supra). As rightly submitted by the learned Public Prosecutor, the main question that arose for determination in that case is, whether Section 20 of the Act envisages further delegation of powers by the person authorised by Central or State Government. While dealing with that question, the Supreme Court while holding that Section 20 clause (1) of the Act does not envisage further delegation of powers by the person authorised by the Central or State Government, observed that the said provision is a safeguard against frivolous prosecutions and that the person authorised can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and record his reasons for the launching of such prosecution in the public interest. The Supreme Court did not specify that the order of written consent to be given by the concerned authority should contain any particular proforma or that the detailed reasons should be recorded. What all is required is that the authority which has to give the written consent had the necessary material before it to consider whether the written consent should be given or not and the written consent shows that the authority has applied its mind by recording the same in the order as to the basis on which it has arrived at its conclusion.

The written orders giving consent in these cases clearly point out that the consenting authority had before it the Public Analyst''s Reports as well as the reports submitted by the Local (Health) Authority seeking permission for prosecution. When the order of consent shows mat the authority has applied its mind to that material and has incorporated the same in the order according written consent, in our view, it is sufficient to conclude that the authority has applied its mind. In A Kasi Visweswara Rao v. State of A.P. (2 supra), the learned Judge referred to Ex.P-13, which is the order granting written consent which reads: "....that on a perusal of the detailed report submitted by the Health Officer of Eluru Municipality, the Public Analyst Report and the Mediators'' report the concerned authority accorded sanction to launch prosecution under the provisions of the Act. It also mentions that Gingelly Oil was found to be adulterated as per Public Analyst''s Report dated 26-8-1966...". The learned Judge held mat it is very clear that the authority has not applied its mind as to what is the adulteration and for what reasons it is according sanction. When the order itself discloses mat the Public Analyst''s Report and the report submitted by the Health Officer were available before the concerned authority and the order shows that on a perusal of that material, the concerned authority has given its written consent, we are of the view mat it is sufficient compliance with the provisions of Section 20 clause (1) of the Act and it is in conformity with the veiw expressed by the Supreme Court in A.K. Roy v. State of Punjab (3 supra) that the concerned authority is satisfied mat a prima facie case exists in the facts of that particular case and that reasons for the launching of prosecution are mentioned in the Report.

In Gahininath v. State of Maharashtra (5 supra), the learned Judge following the decision of the Supreme Court in AK Roy v. State of Punjab (3 supra) held that the sanction must record reasons for launching prosecution in public interest. As observed already, this learned single Judge also did not try to draw any distinction between the "sanction" required for prosecution and the "written consent" as required u/s 20 clause (1) of the Act. It is held in State of Maharashtra v. Janardan Ramchandra Narwankar that u/s 20 of the Act only consent of the Authority is necessary and not sanction; that there is obvious difference between consent and sanction; mat ''consent'' implies mere concurrence or agreement, whereas ''sanction'' confers authority on the person in whose favour sanction is granted; and that, therefore, the considerations applicable in the case of ''sanction'' would not be applicable to a case where mere consent is required. As held in State of Maharashtra v. Janardan Ramchandra Narwanka 1978 Cri. L.J. 811., consent implies mere concurrence or agreement, whereas sanction implies an authority being conferred on the person in whose favour sanction is granted. The view expressed by the learned single Judge of Bomb ay High Court concurs with the view taken by us having regard to the distinct language vised in Section 20 of the Act requiring written consent for initiating prosecution. We hold that the concept of ''written consent'' is distinct and different from the concept of "sanction". Inasmuch as sanction confers authority on the person in whose favour sanction is accorded to do a specified act, the order of sanction must ex facie show that the sanctioning authority has applied its mind to the facts of the case and has recorded reasons before according sanction. The same yardstick cannot be applied to a written consent which implies only agreement or concurrence with the authority seeking consent for prosecution.

In Gahininath v. State of Maharashtra (5 supra), the learned Judge observed in paragraph 6 that the offences under the Prevention of Food Adulteration Act are "white collar" heinous crimes of mass murders by adultering articles of food. Having regard to the nature of offences contemplated under the Prevention of Food Adulteration Act, which is a social legislation, having a great impact and effect on common man by its non-implementation, the very fact of initiating prosecution under the Prevention of Food Adulteration Act is in the public interest. Therefore, we hold that it is not necessary to specify in each order of written consent that the written consent for prosecution is being given in public interest. Moreover, the very report of the Public Analyst and the report of the Local (Health) Authority show that the article was ad ulterated and therefore to give consent for prosecution in respect of such an offence, must be deemed to be in the public interest and there is no need for the authority to specify that the prosecution is in public interest having regard to the nature of offence and its impact on the society in general. Therefore, mere non-mention in the written consent that the written''consent for prosecution is accorded in the public interest does not vitiate the written consent".

The Supreme Court in State of Orissa Vs. K. Rajeshwar Rao, , while observing that what Section 20 of the Act envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order, however, held that grant of sanction to prosecute for an offence under the Act is a condition precedent.

Smt. Vineetha Reddy has referred to the decision of Himachal Pradesh High Court in The State of Maharashtra Vs. Janardan Ramchandra Nrawankar, . In mat case a single Judge of Himachal Pradesh High Court held that a cyclostyled form filled in by someone and simply signed by the sanctioning authority demonstrates that the contents of the document were not even read by the sanctioning authority and that the sanction was not in accordance with the requirement of law. In Chaturbhuj Yadav v. State of Madhya Pradesh 1991 (1) PFAC 317., a single judge of Madhya Pradesh High Court held that where the prosecution was launched by the Food Inspector u/s 20 without any written consent by the State Government or the person authorised for such prosecution, such a launching of prosecution would be illegal. The learned Judge held that the intention of the Legislature in enacting Section 20 was to confer a power on the authorities specified therein which power has to be exercised in the manner provided and not otherwise. It is further held that the prescribed authority alone has the power to initiate prosecution for an offence under the Act. This decision does not help the submission of the learned counsel for the respondents as to what is the effect of the written consent.

In The Senior Food Inspector, Ananthapur Vs. Ravuru Subbaiah, ., one of us (G Radhakrishna Rao, J.) while drawing a distinction between the consent and sanction observed that all the reasons need not be given in the case of consent and that the offender in Food Adulteration Cases should not be acquitted on mere technical grounds, without any basis. In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, . which is a case arising under the Bihar Co-operative Societies Act, the Supreme Court held that when the sanctioning authority has considered the case diary before grant of sanction it cannot be said that there was non-application of mind on the part of sanctioning authority. While mentioning the object of obtaining sanction, the learned Judges observed that Section 197 Cr.P.C. does not require the sanction to be in any particular form and that it should be clear from the form of the sanction that the sanctioning authority has considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution. The learned Judges further observed that the specific mention in the sanction order to the effect that the case diary was taken into consideration by the competent authority before granting the sanction is sufficient compliance. Applying that decision to the facts of these cases it follows that the reference to tine Public Analyst''s report and the report of the Local (Health) Authority based on which the written consent is given is sufficient compliance to show that after consideration of the relevant material the competent authority has considered the question of granting the written consent for prosecution.

In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, , a Division Bench of Calcutta High Court, drawing the presumption u/s 114 of the Evidence Act, up held the written consent given by the competent authority. The same view is also taken in Senior Food Inspector, Ananthapur v. Ravuru Subbaiah (10 supra), (of which one of us is a party) that from the reference to the report of the Public Analyst and the report of the Food Inspector placed before the competent authority a presumption can be drawn mat the competent authority has applied its mind to those documents before tendering the consent and that itself constitutes a sufficient reason for granting the written consent. The Supreme Court in State of Bihar v. P.P. Sharma11 also has raised the presumption u/s 114 of the Evidence Act when the Government have accorded sanction for prosecution u/s 197 Cr.P.C.

The learned counsel for the respondent in Criminal Appeal No. 849 of 1991 argued that the observations of the Supreme Court in A.K. Roy v. State of Punjab (3 supra) are binding on this Court, and, therefore unless the written consent shows that a prima facie case exists, mat the reasons are recorded and that the written consent is given to launch prosecution in public interest, the written consent is vitiated. We have already indicated above that having regard to the distinction between "written consent" and "sanction", it would be sufficient compliance if the written consent prima facie shows that the competent authority had the necessary material before it such as the Public Analyst''s report and the report of the Local (Health) Authority basing on which it has given the written consent applying its mind to the facts of the case. We have already held that there need not be a specific mention that the prosecution is in public interest, because, the launching of prosecution in a Food Adulteration case is always deemed to be in public interest, because it is to prevent a social evil that the criminal prosecution is launched. In other words, the competent authority need not state literally in so many words that the launching of prosecution is in public interest. Further, a presumption arises that the authority according written consent has done so after applying its mind to the relevant material.

The learned counsel for the respondent in Criminal Appeal No. 849 of 1991 relied upon State of Orissa v. K. Rajeshwar Rao (7 supra), in which it is held that a valid sanction is a condition precedent for prosecution under the Act and that if no valid sanction was granted by the authority, the accused is entitled to the benefit of statutory infraction, though it is technical and be acquitted of the offence. That proposition cannot be doubted, because when a valid sanction is required for prosecution and there is no such valid sanction, it certainly vitiates the prosecution. In Jaswant Singh Vs. The State of Punjab, ., the Supreme Court has explained the object behind the grant of sanction under the Prevention of Corruption Act and observed that the authority giving the sanction should be able to consider for itself the evidence before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. As we have observed already, it is in the case of sanction that it is incumbent on the sanctioning authority to go through the entire material based on which the sanction to prosecute should be granted and to record its detailed reasons for according sanction.

The various decisions arising under the Prevention of Food Adulteration Act and referred to by us proceeded on the basis that what is required u/s 20 is sanction to prosecute not taking into consideration the distinction between the "sanction" and the "written consent". Had the attention of the Supreme Court and the other learned Judges of various High Courts been drawn to this distinction between sanction and written consent, the learned Judges must have viewed the matter in a different angle. We have already referred to the various enactments in which the Legislature has advisedly used the word ''sanction'' in some enactments in contra-distinction with the words "written consent" in some other enactments including the Prevention of Food Adulteration Act. In our view this distinction must be borne in mind in interpreting the words.

From the above discussion, we hold that it would be sufficient compliance if the written consent by the concerned authority ex facie shows what material was placed before the authority which has been considered by it before according the written consent. The detailed reasons for granting the written consent are not necessary. It is not necessary to specifically mention while giving written consent that the intended prosecution is in public interest. Thus it would suffice if the written consent by the concerned authority expressly shows that the material which was placed before it constitutes the report of the Public Analyst and also the report of Local (Health) Authority wherein they have mentioned the details of the case and the nature of adulteration complained of.

In the light of the above conclusion, we hold that the acquittal of the accused basing on the judgments in B. Raja Gowd v. State (Food Inspector) (1 supra) and A. Kasi Visweswara Rao v. State of A.P. (2 supra) cannot be sustained and is laible to be set aside. Since the acquittal was granted on the basis of the judgments in force at that time, we feel that an opportunity should be given to the parties concerned by remanding the matters, so that the cases can be decided on the merits of each individual case, without causing any prejudice to the accused.

Before concluding, we convey our thanks to Smt. C. Vineetha Reddy who was appointed as Amicus Curiae and she has by her thorough study, given us ample assistance in coming to the conclusions. We also thank Sri C. Padmanabha Reddy for the enlightened guidance given by him.

In the result the Criminal Appeals are allowed setting aside the acquittal of the respondents and the cases are remanded to the lower appellate court for fresh disposal on merits according to law.