Tilak Raj vs State of Punjab

A. S. Nehra, J.

Food Inspector Nek Chand Goyal intercepted the petitioner on September 15, 1983, on Sangrur Patiala road, in the presence of Dr. S.K. Goel, when he was in possession of 40 kilograms of cows'' milk, in two drums, for sale and after disclosing his identity, the Food Inspector served notice Exhibit P.A. and purchased 660 mls. of milk from the petitioner for Rs. 1.50 paise vide receipt, Exhibit P.8. signed by the petitioner and divided the same into three equal parts and put into three dry and clean bottles alongwith 18 drops of formaline in each bottle as preservative and duly corked, labelled and wrapped them in thick papers along with signatory slips of the Medical Health Authority, Sangrur, pasted thereon the signatures of the petitioner and prepared the spot memo. Exhibit P.C. One of the samples was sent to the Public Analyst, Punjab, Chandigarh who reported vide his report, Exhibit PD that it contained the milk solids not fat to the extent of 8 per cent which was deficient by 6 per cent of the minimum prescribed standard, and on the basis of that report, a complaint, Exhibit P.E. was filed against the petitioner in the trial Court and he was summoned. The petitioner got another sample sent to the Director, Central Food Laboratory, for analysis, whose report also showed milk solids not fat to the extent of 8 percent and the petitioner was charge sheeted under section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, (hereinafter referred to as the Act), to which he pleaded not guilty and claimed trial.

The prosecution examined PWl Shri Nek Chand Goel, Food Inspector, PW2 Dr. S.K. Goel and PW3 Siri Krishan, Clerk of L H.A. Sangrur, who supported the case of the prosecution. The trial Court convicted the petitioner under Section 7 read with Section 16( 1)(a)(i) of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/ and in default of payment of fine, to further undergo, rigorous imprisonment for three months on February 15, 1985. The appeal filed by the petitioner was dismissed by the Additional Sessions Judge on May 3, 1986.

Mr. Dinesh Goyal, Advocate, learned counsel for the petitioner, has raised an argument that the notification authorising Shri Nek Chand Goel, PW1, to prosecute the petitioner was ultra vires the provisions of Section 20(1) of the Act. In support of his argument, he has relied upon an authority of the Supreme Court in A.K. Roy v. State of Punjab, 1986(2) Recent Criminal Reports 569.

I have heard the learned counsel and gone through the papers thoroughly. The complaint Exhibit P.E. shows that Shri Nek Chand Goel was appointed as Food Inspector, vide notification No. EIV1Pb73/1872, dated 9th March, 1973 under Section 9 of the Act. The said notification is reproduced as :

"In exercise of the powers conferred by Section 9 of the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954) read with rule 8 of the Prevention of Food Adulteration Rules, 955 and the powers delegated,vide Punjab Government Notification No. 55762HBII68/29659, dated 10th October, 1968, Sarvshri Nek Chand Goyal, Dhani Ram, Som Parkash Chopra, Balwant Singh and Sarbjit Sikand are hereby appointed as Food Inspectors for the notified areas of the district in which they have been posted.

In exercise of the powers conferred by Section 20 of the Prevention of Food Adulteration Act, 1954 (No. 31 of 954) read with Punjab Government Notification No. 55752 HBII68/29659, 416 dated 10th October, 1968, they are authorised to institute prosecution against the persons committing offences under the said Act within the limits of their notified areas.

Sd/

Director,

Health and Family Planning, Punjab."

This notification shows that Shri Nek Chand Goyal was further authorised to institute prosecution against the persons committing offence under the Act within the limits of their notified area. This notification purports to have been issued under the signatures of the Director, Health and Family Planning, Punjab, who was himself delegated the powers, vide the Punjab Government Notification, dated 10th October, 1968, ibid underSection 9 read with rule 8 of the Prevention of Food Adulteration Rules, 1955, It is further revealed that under Section 20 of the Act, the Director had been delegated the powers.vide Punjab Government Notification dated 10th October, 1968 quoted above.

Under Section 9 of the Act only the Central Government or the State Government may by notification in the official gazette appoint some persons to be Food Inspectors and under Section 20 of the Act, no prosecution under the Act can be launched except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special orders by the Central Government or the State Government. Interpreting this provision, the apex Court held in A.K. Roy''s case (supra) that the prosecution for offences under the Act not being an offence under Section 14 or Section 14(a) can be instituted only by one of the following authorities, namely :

(i) the Central Government, or the State Government,

(ii) with the written consent of the Central Government or the State Government, or

(iii) a person authorised in this behalf by a general or special order by the Central Government or the State Government, or

(iv) with the written consent of person so authorised.

In that case, similar notification had been issued and the powers had similarly been delegated to the Director,vide the same earlier notification. The prosecution in this case has been launched by an unauthorised person and, therefore, the whole proceedings are bad.

The Prevention of Food Adulteration (Punjab) Rules, 1958 were, framed in exercise of the powers under Section 24(2) (e) of the Act and rule 3 thereof reads as under :

"Power of Food (Health) AuthorityThe State Government may, by an order in writing delegate its powers to appoint Food Inspectors, to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified in the order of the Food (Health) Authority of the State of Punjab."

It was ultimately held in A.K. Ray''s case supra as under

"12. In the case of statutory powers the important question is whether on a true construction of the Act, it is intended that power conferred upon A may be exercised on A''s authority by B. The maxim delegatus non potest delegare merely indicates that this is not normally allowable but the legislature can always provide for subdelegation of powers. The provision contained in Section 24(2)(e) enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any subdelegation. That apart, a rule framed under Section 24(2)(e) can only provide for delegation of minor administrative functions e.g. appointment of Food Inspector, (Health) Authority etc. In the case of important executive functions like the one contained in Section 20(1) of the Act to authorise launching of prosecutions for an offence under the Act Which is in nature of a safeguard, the courts may be disposed to construe general powers of delegation restrictively. Keeping in view the language of Sections 20(1) and 24(2) (e) of the Act, Rule 3 of Punjab Rules can be treated to be a general order issued by the State Government to authorise the Food (Health) Authority, i.e. the Director of Health Services to institute prosecutions for an offence under the Act. Unfortunately, the draftsmen of Rule 3 more or less employed the language of Section 20( 1) of the Act. If Rule3 were to be literally interpreted, the words "to authorise the launching of prosecution" may lead to the consequence that the Food (Health) Authority who had been, delegated the power of the State Government under Section 20(1) of the Act could in his turn, subdelegate his powers to the Food Inspector. Such a consequence is not evisaged by Section 20(1) of the Act. It is well settled that rules framed pursuant to a power conferred by a statute cannot proceed or goagainst the specific provisions of the Statute. It must, therefore, follow as a logical consequence that Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in Section 20(1) of the Prevention of Food Adulteration Act, 1954 and cannot be construed to authorise subdelegation of powers by the Food (Health) Authority, Punjab; to the Food Inspector, Faridkot. If go construed, as it must, it would mean that the Food (Health) Authority, was the person authorised by the State Government to initiate prosecutions. It was also for the Food (Health) Authority being the person authoriesed under Section. 20(1) of the Act to give his written consent for the institution of such prosecutions by the Food Inspector, Faridkot as laid down by this Court in State of Bombay v. Purshottam Kanaiyalal, (1961)1 SCR 458 and Corpn. of Calcutta v. Md. Omer Ali, (1976)4 SCC 527."

In view of A.K. Roy''s case (supra), this criminal revision is accepted, conviction and sentence awarded to the petitioner are set aside and he is acquitted of the charge. Fine, if paid, be refunded.