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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: PARSHOTTAM KANAIYALAL.

DATE OF JUDGMENT: 31/08/1960

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA DAS, S.K. HIDAYATULLAH, M.

CITATION:  1961 AIR    1            1961 SCR  (1) 458  CITATOR INFO :  F          1977 SC 912  (4)  R          1986 SC2160  (12)

ACT: Criminal  Trial-Statute  barring  prosecution  except   with written consent of competent authority-Whether consent  must be  in favour of named person Food Adulteration  Act,  1954 (37.  of 1954), S. 20(1).

HEADNOTE: A  complaint  was filed against the respondent by  the  Food Inspector  for selling adulterated milk.  Section  20(1)  of the   Food   Adulteration  Act,  1954,  provided   that   no prosecution  shall be instituted under the Act " except  by, or  with  the written consent of, the  State  Government  or local authority or a person authorised in this behalf by the State Government or a local authority ". On the  application of  the  Food Inspector consent in writing was  given  by  a person  authorised  by  the local  authority.   But  it  was contended by the respondent that the written consent was  of no  avail  as it did not in terms name the person  in  whose favour it was given. Held, that where a prosecution was launched on the basis  of a  written  consent  granted  by  the  competent  person  or authority,  it was not necessary to name the complainant  in the  consent.   The Act did not in terms  require  that  the complainant shall be named in the written consent nor  could such  a limitation or condition be gathered as  a  necessary intendment  of the provision.  The written consent  was  for the  launching  of  a specified  prosecution  and  need  not necessarily be in favour of a complainant authorising him to file a complaint.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION  Criminal Appeal No. 56  of 1959. Appeal by special leave. from the judgment and order  dated- December  18,  1957,  of the former  Bombay  High  Court  in Criminal  Revision  No.  1671 of 1957, arising  out  of  the

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judgment  and  order  dated June 7, 1957,  of  the  Sessions Judge, Baroda, in Criminal Appeal No. 33 of 1957. H.   B. Khanna and D. Gupta, for the appellant. G.   C. Mathur, for the respondent. 1960.   August 31.  The Judgment of the Court was  delivered by                             459 AYYANGAR  J.-This  appeal  by special leave  of  this  Court raises  a very short point regarding the construction of  s. 20(1)  of the Prevention of Food Adulteration Act, 1954  (37 of 1954). The respondent owned a milk shop within the Municipal limits of   the  city  of  Baroda.   The  Food  Inspector  of   the Municipality visited the shop on July 9, 1956 and  purchased milk for analysis.  This was sent to the Public Analyst  and when  his  report  was to the effect  that  the  sample  was adulterated,  the  Inspector applied to the  Chief  Officer, Borough Municipality, Baroda, for the latter’s consent,  for instituting  criminal  proceedings under the  Prevention  of Food  Adulteration Act, 1954 (referred to hereafter  as  the Act),  against the respondent.  A consent in writing to  the initiation  of  this  prosecution was  given  by  the  Chief Officer  and  thereafter  the complaint out  of  which  this appeal arises was instituted charging the respondent with an offence  under s. 16 read with s. 7 of the Act  for  selling adulterated food. The case was tried by the Special Judicial Magistrate, First Class,  Baroda.   Besides  denying his  guilt,  the  accused raised various technical objections, the principal of  which was  that  the prosecution was incompetent because  of  non- compliance  with  the terms of s. 20(1) of  the  Act.   This provision,  omitting the proviso to which it is  unnecessary to refer, runs: "  No  prosecution for an offence under this  Act  shall  be instituted  except by, or with the written consent  of,  the State Government or a local authority or a person authorised in   this  behalf  by  the  State  Government  or  a   local authority." The  Magistrate overruled these objections and  holding  the accused guilty of the offence charged sentenced him to pay a fine  of Rs. 300/- and in default to  rigorous  imprisonment for  three months.  Dealing with the objection based  on  s. 20(1)  of  the Act with which alone we  are  concerned,  the learned Magistrate said: " In the present case Baroda Municipal Borough is the  local authority  and it has authorized the Chief Officer  and  the health officer of the Municipality to 59 460 grant  sanction to institute proceedings under this  Act  by its  resolution No. 222 dated May 7,1956, the Chief  Officer has  given  consent  in writing to lodge  this  coin  plaint against  the  present accused under the Act on  October  13, 1956.  The said consent in writing is on record at Ex.  10/7 and   the  copy  of  the  Resolution  of  the   Municipality empowering the Chief Officer and the health officer is  also on record at Ex. 18/8.  Thus in the present case there is  a valid consent in writing given by the Chief Officer who  has been duly authorised in this behalf by the Baroda  Municipal Borough, to institute proceeding against the present accused under  the Act............... The Food Inspector  can  lodge the complaints under the Act if consent in writing is  given by a local authority or a person empowered in this behalf by the local authority.  The food inspector had in the  present case  submitted all the papers to the Chief Officer who  has

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been  invested with the powers by the Municipality  to  give consent  in order to seek his necessary consent  in  writing before  lodging the complaint against the  present  accused. And  after going through the said papers the  Chief  Officer had  duly given consent to him to lodge this complaint.   It is true that the consent does not bear the name of the  food inspector  but  it impliedly follows that  the  consent  was given  by  the  Chief  Officer  to  the  person,  viz.,  the complainant  food  inspector who sought the  permission  and none else." Against his conviction and sentence the respondent filed  an appeal  to the Court of the Sessions Judge at  Baroda.   The Appellate  Court  set  aside the  order  of  conviction  and sentence  on  the  ground that the Food  Inspector  was  not competent to institute the prosecution under s. 20(1) of the Act.   Relying  on  the decision of a single  Judge  of  the Madras  High  Court in Cannanore  Milk  Supply  Co-operative Society,  In  re(1), the learned Sessions  Judge  held  that under  the  terms of the section, the  only  authority  with whose " written consent " a prosecution could be  instituted was the State Government and that neither " the local autho- rity " nor " the person authorized in that behalf by the (1)  (1956) 2 M.L.J. 465. 461 State Government or the local authority " were competent  to grant   "   written  consents  "  for  the   initiation   of prosecutions.   He, therefore, set aside the conviction  and sentence and discharged the respondent. The  matter was thereafter brought up before the High  Court of  Bombay by the State by an appeal later converted into  a Criminal Revision petition.  The learned Judges of the  High Court  affirmed  the order passed by  the  learned  Sessions Judge.   They  disagreed  with the  Sessions  Judge  in  his interpretation  of s. 20(1) that a prosecution could not  be instituted  with  " the written consent"  of  any  authority other than the State Government.  They, however, held that " the  written  consent  " should name the  person  who  could institute  the complaint and that as " the consent " in  the present case bad not named the Food Inspector as the  person authorized  to file the complaint, the prosecution  was  not legally  initiated.   It is from this decision of  the  High Court  that  the State of Bombay,  having  obtained  special leave of this Court, has brought this matter up before us. There  is  here no dispute that " the local  authority the Baroda Municipality, had authorized the Chief Officer of the Municipality to grant consents under s. 20(1) of the Act for the  filing  of complaints in regard to offenses  under  the Act.   There  is no dispute either that  the  Chief  Officer granted on October 13, 1956, his " written consent " to  the filing  of  this complaint against the  respondent.   The  " consent " is in the following terms: "Under  authority vested in the Chief Officer of the  Baroda Borough Municipality............... sanction is hereby given for  instituting  prosecution  against  the  following  milk vendors  for  contravening the provisions of  Government  of India’s Prevention of Food Adulteration Act, 1954." The name of the respondent, his address and the date of  the offence are then set out and it is followed by a paragraph which runs: "  This  sanction  is  accorded  after  going  through  Milk Analysis Report and other pertinent documents and the nature of offence committed by each of the 462 above persons as required by s. 20 of the Prevention of Food Adulteration Act, 1954."

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We may, at the outset, point out that we entirely agree with the  learned Judges of the High Court in their view that  on the terms of a. 20(1) a prosecution could be instituted with the written consent not merely of the State Government but " of  a  focal authority " or " a person  authorised  in  this behalf  by the State Government or a local authority  ".  In our  opinion,  on the language of the sub-section  no  other construction  appears possible.  The learned Judges  of  the High Court said: "  The  construction  which  has been  put  by  the  learned Sessions  Judge  obviously  ignores the  two  commas,  which appear in the section before and after the clause " or  with the  written consent of ". One of the commas  precedes,  and the  other follows the clause " or with the written  consent of  " The plain grammatical meaning of this section is  that the  written  consent may be of the State Government,  or  a local  authority, or a person authorised in that  behalf  by the State Government or local authority.  In our view, under this  section, the prosecution can be instituted (1) by  the State Government, (2) by- a local authority, (3) by a person authorised in that behalf by the State Government, or (4) by a   person  similarly  authorised  by  a  local   authority. Further,  a  prosecution  can also be  instituted  with  the consent of any of these four authorities." Even apart from-the two commas, the construction which found favour  with the learned Judge of the Madras High  Court  in Cannanore Milk Supply Cooperative Society, In re (1) is  not possible  without the sub-section being rewritten  in  these terms: "  ............ shall be instituted by or with  the  written consent of the State Government or by a local authority or a person authorised in this behalf by the State Government  or a local authority." Without the insertion of the word " by " before the words  " a local authority ", it would not be possible to exclude the written consents of local authorities etc. from the  content of the sub-section. (1)  (1956) 2 M.L.J. 465.                             463 As  already  stated, the reasoning, however,  by  which  the learned Judges of the High Court held the prosecution to  be incompetent  was  that " the written consent "  did  not  in terms, name the person " in whose favour " the sanction or " written consent " was given.  The learned Judges stated: "  A  written sanction of the nature which we  have  in  the present  case, or a written consent, without mentioning  the person to whom such consent or sanction is given, would,  in our  view, not be a sufficient compliance with the terms  of the  sanction................  The present  written  consent does  not  mention  the name of the Food  Inspector  as  the person competent to institute the prosecution, and therefore we  must hold that the institution of the  prosecution,  was without jurisdiction". The  learned Counsel for the appellant-State challenged  the correctness  of  this construction.  He referred us  to  the analogy of the decisions rendered on s. 197 of the  Criminal Procedure Code where it has been held that " the sanction  " referred to need not name the person who could institute the prosecution.   We  consider it unnecessary  to  canvass  the relative  scope  of the language of s. 197 of  the  Criminal Procedure  Code  and of s. 20(1) of the Prevention  of  Food Adulteration  Act.   We prefer to rest our decision  on  the terms  of s. 20(1) itself.  To start with, the Statute  does not  in terms prescribe that the complainant shall be  named in the " written consent ". The only question, therefore, is

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whether such. a limitation or condition could be gathered as a  necessary  intendment  of the provision.   In  the  first place,  the  reason of the rule could not suggest  or  imply such a condition.  The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against  traders.  It therefore provides that the  complaint should be filed, either by a named or specified authority or with  the  written consent of such authority.   To  read  by implication  that  before granting a  written  consent,  the authority  competent to initiate a prosecution should  apply its mind to the facts of the case and satisfy itself that  a prima facie case exists for the 464 alleged  offender  being  put  up  before  a  Court  appears reasonable, but the further implication that the complainant must  be  named  in the written consent  does  not,  in  our opinion, follow.  In the present 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.   In  the second  place, the subsection itself contains an  indication that the written consent is for the launching of a specified prosecution,  and  not one " in favour "  of  a  complainant authorising  him  to file the complaint.  Omitting  for  the moment  the  State Government and " the  local  authority  " which  are  specified  in  the  provision  as  competent  by themselves to initiate prosecutions, persons " authorised by "   these  two  authorities  are  further   included.    The expression  " person authorised in this behalf  "  obviously refers to a named person who is so authorized.  In the  case of these four categories, the authority or person filing the complaint   has   itself   or  himself   to   consider   the reasonableness  and  propriety  of the  prosecution  and  be satisfied  that  the  prosecution is not  frivolous  and  is called  for.  Turning next to the other class, the  relevant words are " no prosecution  shall be instituted except  with the written consent of  Here the emphasis is on the  consent to  the filing of the prosecution, not to the person  filing it.   The preliminary examination of the facts to  ascertain the desirability and propriety of the prosecution is in this last  case,  the responsibility of the person  or  authority giving the written consent-not of the person who figures  as the  complainant.   The  two classes are  distinct  and  the employment  of  different phraseology to designate  the  two types of devolution of authority, constitutes an  indication that  in the second class of cases-where  prosecutions  are filed  on  the  basis of written  consents  granted  by  the competent person or authority, the specification of the name of  the  complainant  is  not  a  statutory  requirement-the consent  being to a specified prosecution.  We,  therefore,, consider  that  the  prosecution in  the  present  case  was instituted on a 465 complaint  which fulfilled the requirements of s.  20(1)  of the Act. One part of the reasoning of the learned Judges of the  High Court was, that in the absence of persons being named in the written consent, a complaint might be lodged by persons over whom " the local authority " would have no control and  that for  this reason it was necessary to adopt the  construction which they did of s. 20(1), namely, that the written consent should name the person authorized to file the complaint.  In our  opinion,  this apprehension is not justified,  for  the written consent has to be filed by the complainant in  order to enable the complaint to be entertained, and it is not  as

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if  the written consent will be available to all and  sundry to  be  filed before the Magistrate.  Besides, even  on  the reasoning  of the learned Judges of the High Court there  is no  restriction  as  to the person who  might  be  named  as authorised to file the complaint.  Normally,, of course, the person  named would be an officer of the  Municipality,  but theoretically  there is a possibility that the person  named might  not  be  a Municipal servant, and if  "  the  written consent"  is  in  favour of such  a  person,  the  Municipal authority  would  have no administrative control  over  him. The  complication  referred to by the learned  Judges  would still be there, even though a person be named in the written consent  given  by  the local  authority.   We,  therefore,, consider that this is not a circumstance which of  necessity leads  to the construction that the complainant ought to  be named in the written consent under s. 20(1). The respondent was not represented before this Court, and in view  of the importance of the matter, Mr. G. C. Mathur  was requested  by  the Court to appear as amicus-curiae  and  we express our thanks to him for the assistance he rendered us. The  appeal  is accordingly allowed, the order of  the  High Court is set aside, and that of the Magistrate restored.                              Appeal allowed. 466