Vinod Kumar vs State of Punjab

Ujagar Singh, J.—The petitioner was convicted under Section 16(1)(a)(i) read with Section 7, Prevention of Food Adulteration Act (hereinafter called the Act, and was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000/ or in default of payment of fine, to suffer further rigorous imprisonment for a period of two months.

The allegations against the petitioner were that on 29th February, 1980, Dr. H.S. Dhillon along with Dr. Amarjit Singh went to the shop of Messrs Krishan Dairy, Court Road, Bhatinda for taking a sample of food and the petitioner in this case was found present at the shop of which Nasib Chand Mittal is the owner. The petitioner was found in possession of 10 kgs. of desi ghee for sale. Dr. H. S. Dhillon, as Food Inspector, served notice in form IV, Exhibit P.A., showing his intention to purchase the sample of desi ghee. 450 grams of desi ghee out of the lot was purchased from the petitioner on payment of Rs. 11.70 as its price and the petitioner issued a receipt Exhibit PB thereof. The sample was divided into three equal parts which were transferred into three dry and clean bottles. All the bottles were stoppend, securely fastened, labelled and then wrapped in strong thick papers Slips of local Health Authority bearing No. 678 were affixed on the wrapper of each bottle. The bottles were secured with strong twine, sealed and taken into possession under the rules. Signatures of the petitioner were obtained in such a way that the signatures appeared partly slips. Specimen impression of the seal Exhibit P.C. was prepared and the Food Inspector prepared spot memo, Exhibit P.D. Exhibits P.A., P.B. P.C. and P.D. were attested by the petitioner and Dr. Amarjit Singh and they also signed on the bottles. One of the bottles along with form VII duly sealed along with impression of the seal, in a sealed cover, were sent to the Public Analyst, Jalandhar, for analysis. Another copy of form VII duly filled and the sample impression of the seal, in a separate cover, was also sent to the Public Analyst. Remaining two parts of the sample were deposited with the local health authority along with from VII duly filled. Vide his report Exhibit P.E., the Public Analyst informed that resehest value of sample ghee was less than minimum. prescribed standard and was, therefore, adulterated. The petitioner was summoned and on his appearance, Dr. H. S. Dhillon appeared as P.W.1 to support the complaint in its detail. Buta Singh, P.W.2 Despatch Clerk, was examined to say that on receipt or Public Analyst''s report, one copy along with requisite intimation was sent to the petitioner about the launching of prosecution against him and that he could send second sample of desi ghee to the Central Food Laboratory within 10 days thereof. This intimation was despatched, according to P.W.2. on 25th July, 1980 and then one set was sent again to him on 12th September, 1980 by registered post but both the envelopes were received back as undelivered with the report that the addressee was not available. After considering the statements of Dr. H. S. Dhillon P.W. 1 and Buta Singh P.W.2, the trial Court framed charge against the petitioner under Section 16(1)(a)(i) read with Section 7 of the Act. The petitioner pleaded not guilty of the charge and claimed trial. After framing of the charge; Dr. H. S. Dhillon was further, crossexamined on behalf of the petitioner.

The petitioner denied the circumstances appearing against him in his statement under Section 313 of the Code of Criminal Procedure. About the copy of the Public Analyst''s report, he stated that the report and there quisite intimation was not sent to him and in defence Dr. Sita Ram D. W. I was examined in support of his version.

The petitioner filed an appeal against his conviction and sentence and the same was dismissed by the Additional Sessions Judge and the petitioner has come up in this revision challenging the orders of both the courts below.

Learned counsel for the petitioner has strongly urged that the contents of the report of the Public Analyst was not put to the petitioner when he was examined under Section 313, Criminal Procedure Code. He has further urged that the petitioner was only a servant at the shop from where the sample was seized and Dr. H. S. Dhillon P.W. 1 had admitted that the owner of the shop slipped away when the sample was being taken and thereafter he was declared as a proclaimed offender. The petitioner is also stated to be only 20 years at the time of taking of the sample and since then more than 7 years, have lapsed.

After conclusion the trial Court convicted the petitioner under Section 16(1)(a)(i) of the Act read with Section 7 thereof and he was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000/. His appeal was dismissed by the appellate Court.

As regards the contents of the report of the Public Analyst to be put to the petitioner under Section 313 of the Code of Criminal Procedure, I have held in Mahabir Singh v. State of Haryana, Cr. R. 1394 of 1986 decided on May 28, 1987 1987(2) Recent CR 368) that if the report of the Public Analyst is specifically put the trial cannot be quashed, and even though contents of the report are not put it would be only an irregularity at the most which is curable. It has also been held in Mahabir Singh''s case (supra) that if a complex question including all the facts of the case is put, it will vitiate the trial. In this case the complex question put to the petitioner does not satisfy the provisions of Section 313 of the Code of Criminal Procedure and obviously it cannot be said that report of the Public Analyst was specifically put to the petitioner. Moreover in the said question it was not stated that according to Exhibit P.E. the sample was found to be adulterated. On this ground alone this criminal revision can be accepted, and orders of the Courts below set aside, the petitioner be acquitted of the charges but in this case another point is also involved. Section 20 of the Act, reads as under :

"S. 20. (1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14A shall be instituted except by, or with the written consent of the Central Government or a person authorised in this behalf, by general or special order by, the Central Government or the State Government. Provided that a prosecution for an offences under this Act may be instituted by purchaser referred to in Section 12, if he produces in Court a copy of the report of the public analyst along with the complaint." Reading of this Section makes it clear that the prosecution can be instituted only with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order by the Central Government or the State Government. Thus prosecution can be launched subject to the following conditions :

i) with the written consent of the Central Government;

ii) with the written consent of the State Government;

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

iv) by a person authorised in this behalf by general or special order by the state Government.

Here the prosecution was launched by Dr. H. S. Dhillon and according to the complaint he was authorised to institute the same vide Punjab Government, Health Department notification No. FoodPB 80/744, dated 14th March, 1980. This notification was issued at the instance of Director, HealthcumFamily Welfare Punjab and published in (1980) 11 Recent Laws, State of Punjab Rules 161, which reads as under :

"In exercise of the powers conferred by section 20 of the Prevention of Food Adulteration Act, 1954 (Act No 37 of 1954 and 49 of 1964) read with Punjab Government notification No. 55762HBII 68/29659, dated 10th October 1968 the Medical Officers who have already been declared as Food Inspectors'' from time to time are hereby authorised to institute prosecution(s) against the persons committing offences under the said Act, within the limit of their jurisdiction as Food Inspector."

Under clause (3) of the Prevention of Food Adulteration (Punjab) Rules 1958, State of Punjab has been authorised to make an order in writting delegating its owers to appoint Food Inspectors, to authorise a person, to institute prosecution for an offence under the Act and such other powers exercisable by it under the Act as may be specified under the order of the Food Health Authority of the State of Punjab. The abovesaid notification seems to have been issued after the State Government delegated its powers to the Director Food Health Authority. This question came up for hearing before the Supreme Court in A.K. Roy and another v. State of Punjab and others, 1986(2) Recent Criminal Reports 569 : Crl.A. No. 400 of 1986 in S.L.P. No. 701 of 1986) decided on 29th September, 1986 wherein it was observed that

"A careful analysis of the language of Section 20(1) of the Act clearly shows that it inhibits institution of prosecutions for an offence..... except on fulfilment of one or the other of the two conditions. Either the prosecutions must be instituted by the Central Government or the State Government (or a person authorised in that behalf by the Central Government) or the State Government or the prosecution should be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act. The provision contained in Section 201(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. The terms of Section 20(1) do not envisage further delegation of powers by the person authorised, except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised."

This Court has followed the above dictum in A. K. Roy''s case (supra) in a number of cases, while acquitting the accused because of unauthorised nstruction.

In view of the above observations, the institution of this complaint was unauthorised and the trial Court committed an illegality in taking cognizance of the complaint. This criminal revision has also to be accepted on this ground.

As a result of the above discussion, this criminal revision is accepted and the orders of the Courts below are set aside and the petitioner is acquitted of the charges.

Revision accetped.