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PETITIONER: CHITTARANJAN DAS

       Vs.

RESPONDENT: THE STATE OF ORISSA

DATE OF JUDGMENT18/09/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1973 AIR 2708            1974 SCR  (1) 656  1974 SCC  (3) 383

ACT: Food   Adulteration  Act  (37  of  1954)   s.   20(1)-Person authorised  to  give  written consent  for  prosecution  for offence under the Act-Whether the authority should relate to specific offence or could be general.

HEADNOTE: Section  20(1)  of the Food Adulteration Act,  1954,  as  it stood  before its amendment by Act 49 of 1964 provided  that no  prosecution  for  an  offence under  the  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. On  the  written consent of the  Superintendent  of  Police, Vigilance,  who was authorised to give written  consent  for instituting  prosecutions for offences, under the  Act,  the appellant was prosecuted and convicted for an offence  under s.  16 (1) (a) of the Act.  It was contended on  his  behalf that  while it was permissible under the section, after  its amendment  by  Act  49  of  1964,  to  issue  such   general notification  authorising a person to give written  consent, under  the  section as it stood before  the  amendment,  the authority  should  be in respect of a  specified  individual offence. Dismissing the appeal, HELD : There is nothing in the language of the section which makes  it imperative to specify a particular offence in  the order   authorising  a  person  to  give  consent   to   the institution of prosecution.  The legislature had a two  fold object  in enacting s. 20 (1) (a) to prevent institution  of prosecutions  for  offences under the Act  except  with  the written consent of the authorities mentioned in the section, and  (b) to relieve the State Government or local  authority of the necessity of applying its mind and dealing with  each individual  case of prosecution under the Act.  In case  the authority  conferred  by  the  State  Government  or   local authority  could  not  be general but had to  relate  to  an individual offence the very purpose of the section would  be defeated, for then, it would become necessary for the  State Government or local authority fast to authorise a person  to give  written consent in respect of an individual  case  and thereafter  for  the  person  authorised  to  give   written

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consent, so that what could be done in one step by the State Government  or local authority would have to be done in  two steps. The  words  ’in  this behalf’ indicate  that  the  authority conferred by the State Government or local authority upon  a person  should relate to the giving of written  consent  for the  institution of prosecution for offences under  the  Act and  not  that the authority conferred must relate  to  some specified  individual  offence.  The  amended  section  also contains  those  words, and must obviously  carry  the  same meaning.   If  the interpretation sought to be  placed  upon these  words  is  accepted  no  general  authority  can   be conferred  even  under s. 20(1) even as amended  ,  and  the words  ’by general or special order’ in the amended  section would  become  meaningless and lose all  significance.   The amendment  bad  only  made  more  clear  what  was   already contemplated by the section. [659G--661B] Corporation  of  Madras v. Arumagham.  AJ.R.  1966.   Madras 194,  Laxman  Sitaram  Pai & Anr. v. The  State  of  Mysore, A.I.R. 1967 Mysore 33 and Public Prosecutor v. Thatha Rao  & Ors., A.I.R. 1968 A.P. 17, approved.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 58  of 1970. Appeal  by special leave from the judgment and  order  dated the 3rd December, 1969 of the Orissa High Court in  Criminal Revision No. 325 of 67. N.   C. Sikri, for the appellant. S.   Chatterjee and R. N. Sachthey, for the respondent. 657 The Judgment of the Court was delivered by KHANNA,  J.  Chittaranjan  Das appellant  was  convicted  by Magistrate  First Class Cuttack under section 16(1)  (a)  of the  Prevention  of Food Adulteration Act, 1954 (Act  37  of 1954) (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for a period of six  months and  to  pay  a fine of Rs. 50,0 or in  default  to  undergo rigorous  imprisonment  for a further period of  six  weeks. Appeal  filed by the appellant was, dismissed by  the  Addi- tional  Sessions Judge Cuttack.  The appellant then went  up in revision to the High Court but his revision petition  too was  dismissed  by  the Orissa High  Court.   The  appellant thereafter filed the present appeal by special leave. The  case for the prosecution is that on July 17, 1965  Food Inspector Behera went to the stall of the accused in the Old Secretariat  Compound Cuttack and found potato  chops  being fried  by an employee of the accused in groundnut oil  in  a frying  pan.  The Food Inspector disclosed his  identity  to the  accused  and  after giving  the  requisite  notice,  he purchased  375 gms of the groundnut oil in which the  potato chops were being fried.  After the oil was cooled, the  Food Inspector divided it into three equal parts and poured  each part  of the oil in a clean bottle.  The bottles  were  then sealed.  One of the bottles was handed over to the  accused. Another  bottle  was sent to a public analyst.   The  public analyst   found  on  analysis  the  groundnut  oil   to   be adulterated  as  it  did  not  conform  to  the   prescribed standard.    The   Superintendent   of   Police,   Vigilance thereafter  gave written consent for the prosecution of  the accused.  The accused was after that sent up for trial. It  may  be  stated that the date on which  the,  sample  of groundnut  oil was purchased by the Food Inspector from  the

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accused  has  been mentioned in the Judgments of  the  trial magistrate as well as those of the Additional Sessions Judge and  the  High Court to be March 14, 1964.   This  date  was wrong because on reference to the record of the trial court, we  find  that the date on which the sample of the  oil  was purchased  by the Food Inspector from the accused  was  July 17,  1965.   This mistake in any event does not  affect  the merits of the case. The plea of the accused at the trial was that the sample  of the  oil had been taken not from the frying pan but  from  a tin  wherein he had kept burnt oil for the purpose of  using it  as fuel.  The oil, according to the accused, was  stored neither  for  sale  nor  for  being  used  for  frying  food articles.   This plea of the accused was found by the  trial court as well as by the learned Addition Session Judge to be false.   In the High Court it was not disputed on behalf  of the  accused  that the groundnut oil purchased by  the  Food Inspector  had  been taken out of the frying  Dan  and  that potato chops were being prepared with that oil.  One of  the contentions which was raised on behalf of the accused before the  High  Court was that the sanction or consent  given  by the Superintendent of Police, Vigilance for the  prosecution of the accused was not in conformity with section 20 of  the Act as the authority 658 contemplated  by  that section must be in  respect  of  each individual  case  and  a  general  authority  given  to  the Superintendent  of  Police to sanction prosecution  was  not legal.  The High Court rejected this contention as also some other  contentions  which had been raised on behalf  of  the accused. In  appeal before us, Mr. Sikri has at the outset  submitted that there was non-compliance with the provisions of section 10(7)  of the Act as the Food Inspector did not call one  or more  persons  to be present at the time  he  purchased  the sample  of groundnut oil from the accused.  In this  respect we  find that the judgment of the High Court shows  that  no such  argument  was advanced before the  High  Court.   This argument  involves  questions  of fact and  as  the  accused appellant  failed  to agitate it before the High  Court,  we have not permitted the appellant to agitate it before us  in this Court. The main contention which has been advanced in appeal before us  on  behalf of the appellant is that there was  no  valid consent  to  the  prosecution of the  accused  appellant  in accordance  with  sub-section (1) of section 20 of  the  Act and,  as such, the prosecution of the appellant was  not  in accordance with law.  To appreciate this contention it would be  relevant to reproduce the material part  of  sub-section (1)  of  section  20  of the Act, as  it  stood  before  its amendment by Act 49 of 1964.  It was as under:               "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.’ On December 16, 1964 a notification was issued by the Orissa Government  authorising, inter alia, the  Superintendent  of Police  Cuttack Vigilance Division to give  written  consent for instituting prosecutionfor  offences  under  the  Act within the local limits of CuttackMunicipality.         The notification reads as under:                             HEALTH DEPARTMENT                                NOTIFICATION

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                        The 16th December, 1964               "No.   25485-H.-In  exercise  of  the   powers               conferred by sub-section (1) of section 20  of               the Prevention of Food Adulteration Act, 1954               (37  of 1954), the State Government do  hereby               authorise   the  following  officers  of   the               Political and Services (Vigilance)  Department               to   give  written  consent  for   instituting               prosecutions for offences under the said  Act,               within the local limits specified against each               in               659               respect   of  cases  detected  by   the   Food               Inspectors attached to the concerned Vigilance               Divisions:-               Name of officer                  Local Limits                                  Cuttack Municipality               (1) Superintendent of Police’.               Cuttack Vigilance Division                            By order of the Governor                            C. VENKATARAMANI                            Joint Secretary to Government." The  Prevention of Food Adulteration Act was amended by  Act 49  of  1964  with effect from March 1, 1965.   One  of  the amendments made by the amending Act was in section 20 of the Act.   As a result of amendment, the material part  of  sub- section (1) of section 20 reads as under :               "S.  20  (1) :-No prosecution for  an  offence               under this Act shall 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;" The  contention  which  has been raised  on  behalf  of  the appellant  is that while it is permissible under section  20 of the Act, as it stands after the amendment made by Act  49 of  1964,  to  issue a general  notification  authorising  a person to give written consent under the above provision  of law, such a course was not permissible under section 20,  as it  stood before the above amendment.  It was, according  to the learned counsel, essential under section 20, as it stood before  the  amendment,  that the  authority  should  be  in respect   of   some  specified   individual   offence.    As notification  dated December 16, 1964 was issued before  Act 37  of  1954 was amended by Act 49 of 1964 and as  the  said notification gave a general authority to the  Superintendent of  Police,  Vigilance  to  give  consent  for   instituting prosecutions for offenses under the Act committed within the local limits of Cuttack Municipality, the said notification, it is urged was not in accordance with law. As against the above, Mr. Chatterjee on behalf of the  State has  argued that there is no infirmity in  the  notification dated  December 16, 1964 and such a notification could  have been  validly  issued under section 20 of. the  Act,  as  it stood  before the amendment.  In our opinion there is  force in the submission of Mr. Chatterjee. It  would  appear from what has been stated above  that  the short question which arises for consideration is whether  it is  permissible for the State Government or local  authority under section 20, as it stood before the amendment, to  give a  general  authority  to a person to give  consent  to  the institution  of  prosecutions  for offenses  under  the  Act without mentioning a specified individual offence.  We  have

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reproduced 660 above  section 20, as it stood before the amendment, and  we find  nothing in its language which makes it  imperative  to specify  a  particular offence in the  order  authorising  a person  to give consent to the institution  of  prosecution. The words "in this behalf" hi the above provision, to  which our attention his been invited, indicate that the authority’ conferred by the State Government or local authority upon  a person  should relate to the giving of written  consent  for institution of prosecutions for offenses under the Act.   It is difficult to spell out an inference from those words that the  authority  conferred  upon a  person  under  the  above provision  cannot  be  a general  authority  in  respect  of offenses  under  the Act but must relate to  some  specified individual  offence.   If the interpretation  sought  to  be placed  upon  the words "in this behalf" on  behalf  of  the appellant  were to be accepted, in such an event no  general authority  can  be conferred even under sub-section  (1)  of section  20, as amended by Act 49 of 1964, because even  the amended section contains those words.  The words "by general or special order" in the amended section in that event would become  meaningless  and  lose  all  significance.   It  is, indeed,  not  disputed  that under  the  amended  section  a general authority can be conferred upon a person for  giving consent  to  the institution of  prosecutions  for  offenses under  the Act.  The words "in this behalf"  in  sub-section (1)  of section 20, as it existed before the  amendment,  as well  as after the amendment must obviously carry  the  same meaning.   If  those  words in the amended  section  do  not postulate   that  the  authority  conferred  by  the   State Government  or  local authority should have reference  to  a specified  individual  offence  committed  by  a  particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a  different connotation. Perusal  of sub-section (1) of section 20 of the Act, as  it existed before the amendment, shows that the legislature had two fold object in enacting this provision.  One object  was to  prevent institution of prosecutions for  offenses  under the  Act unless written consent to the. institution of  such prosecutions  was given by the State Government or  a  local authority  or  a  person authorised in this  behalf  by  the State Government or local authority-.  The other object  was to  relieve the State Government or local authority  of  the necessity  of  applying it,,,, mind and dealing-  with  each individual case of prosecution under the Act.  Provision was accordingly  made  to enable the State Government  or  local authority to assign the function of giving written con  sent to  some other person.  In case the authority  conferred  by the 661 State Government or local authority could not be general but had to relate to an individual offence, the very purpose  of the  latter part of sub-section (1) of section 20  would  be defeated, for it would in such an event become necessary for the State Government or local authority first to authorise a person to give written consent in respect of art  individual case of prosecution and thereafter for the person authorised to  pass another order for giving the written consent.   The result  would be that what could be done in one step by  the State  Government or local authority by straightaway  giving its written consent would have to be done in two steps.   It is  difficult  to accede to the contention  that  the  above provision instead of simplifying the matter was intended  to

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make it needlessly more cumbersome. The change made in section 20 by Act 49 of 1964 has now  put the thing beyond any, pale of controversy.  Even without the change  made in the section the authority conferred  by  the State Government or local authority upon a person for giving the  consent  contemplated by the section, in  our  opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offenses.  The amendment made in this section had the   effect   of  making  more  clear  what   was   already contemplated by the section. The  Madras High Court in the case of Corporation of  Madras v. Arumugham,(1 the Mysore High Court in the case of  Laxman Sitaram Pai & Anr. v. The State of Mysore(2) and the  Andhra Pradesh  High  Court  in the case of  Public  Prosecutor  v. Thatha  Rao &Ors.(8) have all taken the view that a  general authorisation  to  launch,  prosecutions under  the  Act  is sufficient.  For the reasons stated above, we agree with the view taken in the above three cases. We see no cogent ground to interfere with the sentence.  The appeal fails and is dismissed. V. P. S.           Appeal dismissed, (1)  A. I. R. 1966 Madras 194. (2)  A. I. R. 1967 Mysore 33. (3)  A. I. R. 1968 A. P. 17. 662