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PETITIONER: DHIAN SINGH

       Vs.

RESPONDENT: MUNICIPAL BOARD, SAHARANPUR

DATE OF JUDGMENT: 31/07/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. MITTER, G.K.

CITATION:  1970 AIR  318            1970 SCR  (1) 736  1969 SCC  (2) 371

ACT:     Prevention  of  Food Adulteration Act (37 of  1954),  s. 20--Scope  of--  Complaint  signed  by  Food  Inspector  but Municipal  Board shown as complainant--Appeal  by  Municipal Board  under s. 417(3) Code of Criminal Procedure (Act 5  of 1898)--Maintainability  not questioned   in  High  Court--If question can be raised in the Supreme Court--Public Analyst, report of--When can form basis of conviction.

HEADNOTE:     On  a  report of the Public Analyst  that  the  coloured sweets  sold by the appellant were adulterated  a  complaint was filed before the Magistrate under s. 7, read with s.  16 of the Prevention of Food Adulteration Act. The trial  court acquitted  the appellant.  In appeal by the Municipal  Board under s. 417(3), Code of Criminal Procedure, the High  Court convicted  the appellant.  The appellant did not  raise  any objection  as to the maintainability of the complaint or  of the  appeal, either in the trial court or in the High  Court before  the appeal was disposed of, on the ground  that  the Municipal  Board  was  shown  as  the  complainant  and  the complaint  was signed by its Food Inspector.  In  appeal  to this  Court, it was contended that: (i) the appeal filed  by the  Municipal Board in the High Court was not  maintainable in  law  as the complaint had been instituted  by  the  Food Inspector and not by the Municipal Board; (ii) a  permission under s. 20 of the Act was a condition precedent for validly instituting a complaint and the fulfilment of that condition had  to  be  satisfactorily proved before  the  Court  could exercise  jurisdiction  to  try  the  case;  and  (iii)  the appellant  could not have been convicted on the strength  of the certificate of the Public Analyst.     HELD: Dismissing the appeal,     (i)  Under s. 20 of the Prevention of Food  Adulteration Act, it  was competent for the Municipal Board to  authorise the Food Inspector to file the complaint.  If the  complaint had  been filed by the Food  Inspector on the  authority  of the Board the complaint must be held to have been instituted by  the  Board  itself.   The  question  whether  the   Food Inspector was so authorised is a question of fact.  This was

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never  put  into  issue and both the courts  below  and  the parties  before  them  proceeded  on  the  basis  that   the Municipal  Board was the complainant and the Food  Inspector filed the complaint on its behalf.  The appellant could not, therefore,  be permitted to take up the contention  for  the first  time  after the appeal was disposed of  in  the  High Court. [741 A-C]     K.C. Aggarwal v. Delhi Administration, Cr. A. No. 100 of 1966, dt. 27-5-1969, referred to.     (ii)  There is no analogy between the section and  those provisions requiring sanction for the institution of certain criminal  proceedings.  Under the section,  no  question  of applying  one’s  mind to the facts of the  case  before  the institution  of complaint arises as the authority under  the section  can be conferred long before a  particular  offence has  taken  place.  It is a conferment of  an  authority  to institute  a particular case or even a class of cases.  [741 G] 737     Gokal Chand Dwarkadas v. The King, 75 I.A. 30 and  Madan Mohan  Singh  v.  State of U.P.A.I.R. 1954  S.C.  736,  held inapplicable.     (iii) It is not necessary that the report of the  Public Analyst  should contain the mode or particulars of  analysis or  the test applied.  But it should contain the  result  of analysis, namely, data from which it can be inferred whether the  article  of  food was of was not  adulterated.  In  the present case. the report of analyst did contain the data  on the basis of which the analyst came to his conclusion.  [742 C-E]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 122 of 1967.     Appeal  by  special leave from the  judgment  and  order dated April 18, 1966 of the Allahabad High Court in Criminal Appeal No. 1642 of 1964.     R.K.  Garg, S.C.Agarwal, Sumitra Chakravarty   and   Uma Dutt, for the appellant.     O.P. Rana, for respondent No. 2.     The Judgment of the Court was delivered by     Hegde  J.   Two contentions advanced in this  appeal  by special leave are (1) that the appeal filed by the Municipal Board,  Saharanpur before the High Court of Allahabad  under s.   417(3)   of  the  Criminal  Procedure  Code   was   not maintainable in law  and (2) the accused could not have been convicted  on the strength of the certificate of the  Public Analyst annexed to  the  complaint. The High Court  rejected both these contentions.     The material facts relating to this appeal  are   these: The  accused in this case is proprietor of Khalsa Tea  Stall situated in Court Road, Saharanpur.  Among other things,  he was   selling coloured sweets. On suspicion that the  sweets sold by him were adulterated, the Food Inspector,  Municipal Board,    Saharanpur   purchased  from   the   accused   for examination some coloured sweets under a Yaddasht on May 31, 1963 and sent a portion if the same to the Public Analyst of the Government of U.P. for examination. The Public Analyst submitted his report on June 24, 1963. It reads:               "See Rule 7 ( 3 )               REPORT BY THE PUBLIC ANALYST               Report No. 11652.

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                   I  hereby  certify  that  I,  Dr.   R.S.               Srivastava, Public Analyst for Uttar  Pradesh,               duly  appointed  under the provisions  of  the               Prevention  of  Food Adulteration  Act,  1954,               received on the 4th day of June 1963 from the 738 Food  Inspector  c/o Medical Officer  of  Health,  Municipal Board,  Saharanpur, a sample  of  coloured   sweet  (Patisa) prepared in Vanaspati No. 264 for  analysis, properly sealed and fastened and that I found the seal intact and unbroken.       I  further certify that I have caused to  be  analysed the  aforementioned  sample, and declare the result  of  the analysis to be as follows:       Test for the presence of coal-tar dye :--Positive.       Coal-tar  dye identified :-- Metanil  yellow.  (colour Index No. 138) ANALYTICAL  DATA  IN  RESPECT OF FAT OR  OIL  USED   IN  THE PREPARATION  OF  THE SAMPLE. 1. Butyro-refractometer reading at 40 dgree C :-- 50.5. 2. Melting point :-- 33.80C. 3. Baudouin’s test for the presence of Til oil :Positive. 4.  Tintometer reading on Lovibond Scale 4.0 Red Units  plus 0.1 yellow unit coloured with a coal-tar dye namely, Metanil Yellow (Colour Index No. 138) which is not one of the  coal- tar  dyes permitted for use in foodstuffs under rule No.  28 of the Prevention of Food Adulteration Rules, 1955.     No  chance had taken place in the constitutents  of  the sample which would have interfered with  analysis. Signed this 24th day of June 1963. The sample belongs to :-- S. DHIAN SINGH S/O JIWAN SINGH                              R.S. Srivastava                          M.Sc., LL.B. Ph.D. (Lond.)                                             P.R.L.C.                        Public Analyst to Govt. of U.P. Sendor’s address:                           Public Analyst,                           Uttar Pradesh, Lucknow        The  Food Inspector, c/o. Medical Officer of  Health, Municipal Board, Saharanpur." 739     On the basis of that certificate, a complaint was  filed in the court of City Magistrate, Saharanpur under s. 7  read with s. 16 of the Prevention of Food Adulteration Act, 1954. It  is purported to have been filed by the Municipal  Board, Saharanpur  but  it was signed by its Food  Inspector.   The accused pleaded not guilty.  Various contentions were  taken by  the accused in support of his defence.  The trial  court acquitted  him  taking the view that as the  report  of  the analyst  did  not contain any data, no conviction  could  be rounded  on its  basis and as the  Yaddasht relating to  the sale  had not been attested as required by law, the  seizure in  question must be  held to be  invalid.  As against  that decision,  the  Municipal  Board of Saharanpur  went  up  in appeal to the High Court under s. 417(3), Cr. P.C. the  High Court allowed the appeal disagreeing with the trial court on both  the questions of law referred to earlier.  It came  to the  conclusion  that the analyst had given  the   necessary data   hence   his  report  afforded  sufficient  basis  for conviction.   It  further  opined that  the  fact  that  the Yaddasht  had  not  been attested by the  witnesses  of  the locality, did not vitiate the seizure made.  At the  hearing of the appeal, no objection about the maintainability of the appeal  was  taken.   The judgment of  the  High  Court  was rendered  on April 18, 1966.  The High Court  convicted  the

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appellant   and   sentenced   him   to   undergo    rigorous imprisonment for two months. and to pay a fine of Rs. 100/-, in  default  to undergo further imprisonment for a period of one,  month.   On  April  28, 1966,  the  accused  field  an application    for   certificate  under  Art.  134  of   the Constitution.   On May 4, 1966, when the  application  filed under Art. 134 of the Constitution for certificate was still pending, the accused moved the High Court under s. 561  (A), Cr.  P.C.  for reviewing its judgment dated April  18,  1966 principally  on  the  ground that the appeal  filed  by  the Municipal  Board was not maintainable under s.  417(3),  Cr. P.C.  as  the  complaint had been instituted  by  the’  Food Inspector and no.t by the Municipal Board.  The  application under  s. 561(A) was dismissed by the High Court as per  its order  of  March 16, 1967 repelling the  contention  of  the accused  that the complaint had not been instituted  by  the Municipal Board.  It further came to the conclusion that  it had  no  power to review its own judgment.  The  certificate prayed  for under Art.  134 of the  Constitution   was  also refused  by a separate order of the same  date.   Thereafter this appeal was brought after obtaining special leave.     Mr. Garg, learned Counsel for the appellant  strenuously contended  that the appeal filed by the Municipal  Board  of Saharanpur before the High Court under s. 417(3), Cr.   P.C. was   not  maintainable  as the complaint  from  which  that appeal had arisen had been instituted by the Food Inspector. Section 417(3)  of the Criminal Procedure Code provides that if an order of acquittal 740 is  passed in any case instituted upon complaint,  the  High Court  may grant to the complainant special leave to  appeal against  the  order  of acquittal.  It is  clear  from  that section that special leave under that provision can only  be granted  to  the complainant and to no one else. It  may  be noted that in this case no appeal against acquittal had been filed  by  the  State.  Hence  the  essential  question  for consideration  is  whether  the   complainant   before   the Magistrate  was  the Municipal Board of  Saharanpur  ?   The complainant shown in the complaint is  the  Municipal  Board of  Saharanpur  but  the complaint was signed  by  the  Food Inspector. Section 20 of the Prevention of Food Adulteration Act,  1954  prescribes that no prosecution  for  an  offence under  that Act should be instituted except by, or with  the written  consent  of, the Central Government  or  the  State Government  or a local authority or a person  authorised  in this  behalf,  by general or special order, by  the  Central Government or the State Government  or  a  local  authority. There  is no dispute that the Municipal Board  is   a  local authority.  Hence it was competent to file a complaint.It was also competent for that board to authorise someone  else to file complaints under the Prevention of Food Adulteration Act on its behalf.  As seen earlier, the complaint  purports to have been filed by the Municipal Board.  That Board could have authorised its Food Inspector to file the complaint  on its  behalf.   Neither in the trial court, nor in  the  High Court  at the stage of hearing of the appeal, any  objection was taken by the accused as to the maintainability either of the  complaint or of the appeal.  Both those courts and  the parties before it proceeded on the basis that the  Municipal Board,  Saharanpur  was  the  complainant   and   its   Food Inspector had filed the complaint on its behalf.  It is only after the disposal of the appeal, the accused for the  first time  took  up the contention that the Municipal  Board  was not  the real complainant.     It  is  true that the complaint was signed by  the  Food

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Inspector.  As  seen  earlier  it  was  competent  for   the Municipal   Board  to authorise him to file  the  Complaint. The  question  whether he was authorised  by  the  Municipal Board to file the  complaint  was never put into issue. Both the parties to the complaint proceeded on the basis that  it was  a  validly instituted  complaint.   If   the  Municipal Board  had not authorised him to file  the   complaint  then the  complaint itself was not maintainable.  If that is  so, no  question  of  the invalidity of the  appeal  arises  for consideration. It was never the case of the accused that the complaint   was   invalid.  In  K.C.   Aggarwal   v.   Delhi Administration(1),  this  Court  has held that  a  complaint filed  by one of the officers of a local authority’, at  the instance of that authority is in law a complaint institut- (1)  Criminal  Appeal No. 100 of 1966 decided on  27th  May, 1969; 741 ed by that local authority.  Therefore if the Complaint with which  we are concerned in this case had been filed  by  the Food  Inspector  on  the  authority  of  local  board,   the complaint must be held to have been instituted by the  local board  itself.  The  question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact.  Official acts must be deemed to have been  done according to law.  If the accused had  challenged the authority of the Food Inspector to  file  the complaint, the  trial  court would have gone into  that  question.  The accused  cannot be permitted to take up that contention  for the first time after the disposal of the appeal.  This Court refused  to  entertain for the first time  an  objection  as regards  the  validity of a sanction  granted  in  Mangaldas Raghavji  and  Anr. v.  State  of Maharashtra and  Anr.  (1) Mr.  Garg,  learned  Counsel for the accused  urged  that  a permission   under   s.  20  of  the  Prevention   of   Food Adulteration  Act, 1954 to file a complaint is  a  condition precedent  for  validly instituting a  complaint  under  the provisions  of  that Act. The fulfilment of  that  condition must  be satisfactorily proved by the complainant  before  a court can entertain the complaint. Without such a proof, the court  will  have  no jurisdiction to  try   the  case.   In support  of  that  contention of his he   sought   to   take assistance  from the decision of the Judicial  Committee  in Gokulchand Dwarkadas Morarka v. The King(2) and  Madan Mohan Singh  v. The State of U.P.(3).  Both those  decisions  deal with the question of the validity of sanctions given for the institution of certain criminal proceedings.  The provisions under  which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there   was   any   justification   for   instituting    the prosecutions.  The Judicial Committee as well as this  Court has  laid  down  that  in such  cases,  the  court  must  be satisfied  either  from the order of sanction  or  from  the other  evidence that all the relevant facts had been  placed before  the  sanctioning authority and  that  authority  had granted the sanction after applying its mind to those facts. The ratio of those decisions has no bearing on the facts  of this   case.   Under  s.  20  of  the  Prevention  of   Food Adulteration  Act, 1954, no question of applying one’s  mind to  the  facts  of the case before the  institution  of  the complaint arises as the authority to be conferred under that provision can be conferred long before a particular  offence has  taken  place.  It is a conferment of  an  authority  to institute  a particular case or even a class of cases.  That -section   merely  prescribes that  persons  or  authorities designated  in  that  section are alone  competent  to  file

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complaints under the statute in question. (1) [1965] 2 S.C.R. 894.   (2) 75 I.A.p. 30. (3) A.I.R. 1954 S.C. 736. 742     For the reasons mentioned above, we are unable to accept the  contention of the accused that the Municipal  Board  of Saharanpur was not competent to file the appeal.     The only other question canvassed before us is that  the report of the analyst could not have afforded a valid  basis for  rounding  the conviction as the data on  the  basis  of which  the analyst had reached his conclusion  is not  found in that report or otherwise made available to the court.  We are  unable to accept this contention ’as well.  It  is  not correct to. say that the report does not contain the data on the basis of which the analyst came to his conclusion.   The relevant  data  is given in the report.  A  report  somewhat similar  to  the one before us was held by  this  Court   to contain  sufficient data in Mangaldas’s(1) case referred  to earlier.  The correct view of the law on the subject  is  as stated in the decision of the Allahabad High Court in  Nagar Mahapalika of Kanpur v. Sri Ram(2) wherein it is observed:                  "that  the  report of  the  public  analyst               under   s.  13  of  the  Prevention  of   Food               Adulteration  Act, 1954 need not  contain  the               mode  or particulars of analysis nor the  test               applied  but  should  contain  the  result  of               analysis  namely,  data from which it  can  be               inferred  whether the article of food  was  or               was not adulterated as defined in s. 2 (1 ) of               the Act."     In  the  result  the  appeal  fails  and  the  same   is dismissed.   The appellant is on bail.  He should  surrender to his bail and serve the sentence imposed on him. Y.P.                                       Appeal dismissed. (1) [1965] 2 S.C.R. 894.           (2) [1963] All. L.J. 765. 743