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PETITIONER: FOOD INSPECTOR, ERNAKULAM AND ANR.

       Vs.

RESPONDENT: P.S.  SREENIVASA SHENOY

DATE OF JUDGMENT:       09/07/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

     THOMAS, J.

     Delay condoned.  Leave granted.

     When  Report  of a Public Analyst was superseded by  a certificate  of  Director of Central Food Laboratory, is  it necessary to obtain a fresh consent to institute prosecution and  recommence the proceedings under the Prevention of Food Adulteration  Act,  1954  (for short the Act)?   A  Single Judge of the High Court of Kerala held that it is necessary, and directed the trial magistrate to wait for some more time and  in  the  event of no such consent of  the  appropriate authority  is  obtained and produced before  the  magistrate within a reasonable time  not exceeding one month  for the purpose,  discharge  the accused.  The Food  Inspector  who instituted  the prosecution as well as the State have  filed this  appeal by special leave against the said order of  the High Court.

     The  facts out of which the said order happened to  be passed, are the following:  Appellant  Food Inspector filed a  complaint  against  the  respondent  with  the  following allegations:   While  the  complainant was  acting  as  Food Inspector  of Mobile Vigilance Squad (Ernakulam) he  visited the  grocery  shop  of  the   respondent  on  15.4.1996  and purchased  750 gms.  Of Toor Dal for the purpose of taking sample  as  per the provisions of the Act.  The  sample  was taken in the manner provided by the Act and one of the three parts  of  the  sample was sent to the Public  Analyst  who, after  analysis,  sent  a  Report stating  that  the  sample contained   Kesari  Dal  and   hence  it  was   adulterated. Thereupon  the  complaint was filed on the premise that  the respondent  has committed the offence under Section  16(1-A) of the Act read with Section 2(1)(h) and Section 7(1) of the Act.

     Additional Chief Judicial Magistrate, Ernakulam before whom  the  complaint  was  filed   issued  process  to   the respondent  as  accused.  After entering appearance  in  the case  the  respondent  moved an application  for  sending  a second  part  of the sample to the Director of Central  Food Laboratory.  It was sent accordingly and upon the same being analysed at the Central Food Laboratory the Director thereof sent  a  certificate  to the trial court  stating  that  the

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sample does not contain Kesari Dal but the food article in the  sample  was adulterated as it contained synthetic  Coal Tar  Dye  (Tarterzine).  On receipt of the said  Certificate the  trial magistrate converted the case from summary  trial to  a  warrant case trial.  After examining three  witnesses for  the  prosecution the trial magistrate framed  a  charge against  the accused on 10.3.1997.  The material portion  of the  charge  reads  thus:  Whereas on 15.4.1996 at  2  p.m. Food  Inspector had purchased 750 grams of Toor Dal  exposed for  sale in your shop in a bag for Rs.21/- and when it  was sent  for  analysis  to the Central Food Laboratory  it  was found  that  the  Toor  Dal purchased  from  you  was  below standard   and  had  contained   synthetic  colour  and  was adulterated  as  revealed  from examination  of  prosecution witnesses  and records and your act is an offence punishable under  Section  2(1-A)(a)(h);  7(i) read with 16(1-A)(I)  of the  Prevention of Food Adulteration Act, 1954 and that  you are  to  be  tried  for the aforesaid  offence  before  this Court.

     Respondent  filed a revision before the High Court  in challenge  of  the  order framing charge.  The  counsel  for respondent  contended  before  the High Court that  no  such charge could be framed since a new offence had been revealed by  the  Certificate  of  the   Director  of  Central   Food Laboratory.  He also contended, alternatively, that when the Report  of the Public Analyst was found to be wrong the only course  open to the court was to acquit the accused  because the  complaint  was  based on that Report.  Lastly,  it  was contended  that  the complainant had not  obtained  sanction under Section 20 of the Act on the strength of the new facts revealed  in  the  Certificate  issued by  the  Director  of Central  Food  Laboratory  and  hence a  fresh  sanction  is necessary for proceeding with the case.

     Learned  Single Judge did not accept the first set  of contentions.   However, learned Single Judge found the  last contention acceptable in the light of a decision rendered by the  Calcutta  High  Court in M/s.  S.M.  Anwar  &  Co.   v. State  of  West  Bengal (1994 All India Prevention  of  Food Adulteration  Journal 594).  Learned Single Judge  extracted the following passage from the above said Calcutta decision: Since  however, the certificate of the Director of  Central Food  Laboratory  discloses  a  totally  different  kind  of adulteration  than  what was mentioned in the report of  the Public  Analyst  and since the report of the Public  Analyst has been totally overturned and negatived to the point of no offence,  by  the certificate of the Director, Central  Food Laboratory, I must hold that the prosecution cannot continue on  a  totally new fact about the nature of adulteration  as indicated  in  the  certificate  of  the  Director   without obtaining necessary consent from the appropriate authority.

     However,  learned  Single Judge of the High  Court  of Kerala  did not choose to consider how far the said decision of  the Calcutta High Court is legally adoptable, but merely followed  that  decision  and held  thus:   Accepting  this decision,  I have to hold that a fresh sanction is necessary to  proceed further with the case.  Therefore, I direct that the learned Magistrate, before proceeding further, will give the  prosecution an opportunity to place the certificate  of the   Director  of  Central   Food  Laboratory  before   the appropriate  authority  for  consideration and  consent  for continuance  of the prosecution and in the event of no  such consent  of  the  appropriate   authority  is  obtained  and

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produced  before the Magistrate shall discharge the  accused and drop the present proceedings.

     Ms.   Malini Poduval, learned counsel for the State of Kerala,  contended  first that there was no question of  any fresh sanction or consent to be obtained in this case as the prosecution was not instituted even earlier with any consent of the Government, because the complainant was an authorised person,  falling within the purview of Section 20(1) of  the Act, to institute the complaint.  The said sub-section reads thus:   No  prosecution for an offence under this Act,  not being  an offence under Section 14 or Section 14-A, shall be instituted  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 order,  by the Central Government or the State Government.

     Provided  that a prosecution for an offence under this Act  may be instituted by a purchaser or recognised consumer association  referred to in Section 12, if he or it produces in  court  a copy of the report of the public analyst  along with the complaint.

     (As  the  sub-section  stands now  subsequent  to  the amendments carried out therein by Act 34 of 1976)

     The    sub-section     envisages     five    different authorities/persons  any  one  of  whom  can  institute  the prosecution  for  an  offence thereunder.  First is  by  the Central  Government;   second is by a person  authorised  in this  behalf  by  general or special orders of  the  Central Government;   third is by State Government;  fourth is by  a person  authorised  in  this behalf by  general  or  special orders  of the State Government, and fifth is by any  person with   a   written  consent  of   any  of  the  other   four authorities/persons.

     Learned  counsel for the appellant  State invited our attention  to  a  notification issued by the  Government  of Kerala  dated  20.3.1996  (it was published in  the  Gazette dated SRO 320 of 1996) by which food inspectors of the State have  been authrorised to institute prosecution  proceedings under  Section 20 of the Act.  But the said notification was not considered by the High Court.

     Shri  Romy Chacko, learned counsel for the  respondent submitted  that  the High Court was not told about the  said general  authorisation  and hence the learned  Single  Judge would have proceeded on the premise that the prosecution was instituted on the strength of the written consent granted to the complainant in respect of this case.  We do not think it necessary  to  countenance the said contention  whether  the prosecution   was  instituted  with   the  written   consent envisaged  in  Section  20  of the Act  or  whether  it  was instituted  under a general authorisation made by the  State Government.   We  propose  to  proceed  on  the  assumption, without  prejudice  to  the aforesaid contention,  that  the appellant  instituted  the  prosecution proceedings  on  the strength  of  the written consent of one of the  authorities concerned.

     The stage at which the prosecution proceedings reached in the trial court was, as pointed out above, the receipt of the  Certificate  from  the  Director of  the  Central  Food

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Laboratory  holding  that there is no Kesari Dal in  sample, nevertheless  the  sample  is  adulterated  inasmuch  as  it contained  synthetic  Coal  Tar Dye.  When  the  Certificate superseded  the  Report  of the Public  Analyst  the  latter stands  sunk to the bottom and in that place the Certificate alone would remain on the surface of evidence and hence that certificate  alone can be considered as for the facts stated therein  regarding  the  sample concerned.   Thus  the  real contention posed is whether a fresh consent of the authority concerned  is  required when the said Certificate has  taken the place of the Report of the Public Analyst.

     Shri  Romy Chacko, learned counsel for the respondent, based  his  contention on the language of Section 20 of  the Act  as  well  as  Section  216  of  the  Code  of  Criminal Procedure.   He  made an endeavour to take support from  the decisions  of certain High Courts, including the decision of a  Full  Bench  of  the Himachal Pradesh  High  Court.   Ms. Malini  Poduval,  on  the  other hand,  contended  that  the consent  contemplated  in Section 20 of the Act is only  for the  institution of the prosecution and once the prosecution has  been  instituted there is no provision for  instituting the  same complaint over again.  Learned counsel invited our attention  to  the decisions of certain other  High  Courts, including  a  Full  Bench  decision of  the  High  Court  of Gujarat, in support of her contention.

     Before  we refer to the decisions of the High Court it is  necessary to examine the relevant provisions of the Act. Section  10  of  the Act empowers a Food Inspector  to  take sample  of any article of food from any person selling  such articles  and to send such sample for analysis to the Public Analyst appointed for the local area within which the sample has  been taken.  Section 11 says that when a food inspector takes  a sample of food article for analysis he shall divide the  sample  then and there into three parts in  the  manner prescribed  therein and send one of the parts of the  sample to  the Public Analyst, while the remaining two parts of the sample shall be forwarded to the Local Health Authority.

     The  purpose of sending the remaining two parts of the sample  to  the  Local Health Authority  is  two-fold.   One purpose  is  to use one of the parts if and when the  Public Analyst  or the food inspector requisition the Local  Health Authority for sending one of those parts of the sample again to  the Public Analyst on the ground that the first part  of the  sample was lost or damaged.  This is actually a reserve purpose  to meet any contingency.  The second purpose is  to send  one  of the parts to the Director of the Central  Food Laboratory, if so required under Section 13 of the Act.

     Section  13(1) of the Act says that the Public Analyst shall  deliver a report of the result of the analysis of the food  article  submitted  to  him,   to  the  Local   Health Authority.   Sub-section (2) of Section 13 is the  important provision in this context and hence it is extracted below:

     On  receipt  of  the  report of  the  result  of  the analysis  under  sub-section  (1)  to the  effect  that  the article of food is adulterated, the Local (Health) Authority shall,  after  the  institution of prosecution  against  the person from whom the sample of the article of food was taken and  the  person,  if  any, whose name,  address  and  other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of

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the result of the analysis to such person or persons, as the case  may be, informing such person or persons that if it is so  desired, either or both of them may make an  application to  the  court within a period of ten days from the date  of receipt  of the copy of the report to get the sample of  the article  of  food  kept  by  the  Local  (Health)  Authority analysed by the Central Food Laboratory.

     Thus  the  stage  for sending the other  part  of  the sample  to  get it analysed by the Central  Food  Laboratory arises only during the post-institutional proceedings of the prosecution  in  the court.  It is the courts  function  to dispatch the other part of the sample to the Director of the Central  Food  Laboratory.  The Director shall complete  the analysis within one month of the date of receipt of the part of sample and send the Certificate to the court before which the prosecution is pending.

     Section 13(2-D) says that the court shall not continue with  the proceedings pending before it until the receipt of the  Certificate  of the analysis from the Director  of  the Central  Food Laboratory.  The purpose of keeping the  trial under suspended animation is that further proceedings can be revived  only after receipt of the Certificate, because  the Certificate  must,  under law, supersede the report  of  the Public  Analyst.  It is a statutory operation as can be seen from sub-section (3) which says that the certificate issued by  the  Director  of  the  Central  Food  Laboratory  under sub-section  (2-B)  shall supersede the report given by  the Public  Analyst  under sub-section (1). In this  context  a reference  to sub-section (5) will also be advantageous  and it  is  extracted below:  Any document purporting to  be  a report  signed  by  a  public analyst, unless  it  has  been superseded under sub-section (3), or any document purporting to  be  a certificate signed by the Director of the  Central Food Laboratory, may be used as evidence of the facts stated therein  in  any proceeding under this Act or under  Section 272 to 276 of the Indian Penal Code (45 of 1860):

     Provided   that  any  document   purporting  to  be  a certificate  signed  by  the Director of  the  Central  Food Laboratory  not  being  a certificate with  respect  to  the analysis  of  the part of the sample of any article of  food referred  to in the proviso to sub-section (1-A) of  Section 16  shall  be  final and conclusive evidence  of  the  facts stated therein.

     The  aforesaid  scheme  of the Act,  particularly  the setting  of  different  sub-sections  in  Section  13   very forcefully  indicate that the certificate of the Director of the  Central Food Laboratory can be brought in evidence only in  the  post-institutional  stage of a  case,  whereas  the report  of  the Public Analyst can be obtained  during  pre- institution stage of the prosecution.  There is no scope for countenancing  a situation when prosecution proceedings  can be  instituted  with the certificate of the Director of  the Central  Food Laboratory.  What was in evidence in the  form of  Report of the Public Analyst stands substituted,  during the  evidence  stage, by the Certificate of the Director  of Central  Food  Laboratory.  In other words,  after  evidence stage is commenced a new document would take the place of an existing  material already admitted in evidence.  Thereafter no  legal provision requires the case to be switched back to the pre-institution stage.

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     That  apart,  what is the need for obtaining  a  fresh consent  when the certificate of the Director of the Central Food  Laboratory  has reached the court.  Shri Romy  Chacko, learned  counsel,  contended that the  authority  consenting prosecution must apply his mind to the facts of the case for satisfying himself that the facts warrants a prosecution and a  prima  facie  case exists against the  alleged  offender. Learned  counsel  relied  on the decisions in the  State  of Bombay  v.   Parshottam Kanaiyalal (AIR 1961 SC 1) and  A.K. Roy  and  anr.  V.  State of Punjab and ors.   {1986(3)  FAC 66}.  The purpose of insisting that the consenting authority should seriously apply his mind before according consent for launching   prosecution,  is  to   prevent  unnecessary   or frivolous  prosecution  at the instance of  any  complainant against  traders in food articles.  But once prosecution  is instituted  validly  the  matter  is in  the  hands  of  the judicial   functionary  and  further   proceedings  can   be controlled  by  such  functionary.  The  authority  granting consent  for  institution of prosecution is in no  way  more suited  for preventing unnecessary prosecution than judicial functionaries.    Therefore,   a   switch    back   to   the pre-institution stage is unnecessary and hence unwarranted.

     Different  High Courts have taken two different  views on  the above legal proposition.  We may first refer to  the decision  rendered  by a Division Bench of the Gujarat  High Court  in State of Gujarat v.  Ambalal Maganlal {1978(2) FAC 53}.   That case happened to be referred to a Division Bench as  Ahmadi,  J.   (as the learned Chief  Justice  then  was) doubted  the  correctness of a decision rendered by  another Single  Judge  of  the  Gujarat High Court  who  upheld  the acquittal  of an accused on the ground that the  Certificate issued  by the Director of Central Food Laboratory indicated deficiency  in  milk solid non-fat as against the report  of the  Public Analyst which indicated deficiency only in  milk fat,  and that sanction for prosecution was accorded only on the  strength of the report of the Public Analyst.  Upon the reference  being made by Ahmadi, J., a Division Bench of the Gujarat  High Court after considering various aspects of the matter held that once the written consent to prosecution is given  by  any  of  the   four  competent  authorities,  the institution of prosecution should be regarded as if it is by that authority;  no further question as regards the validity of  written  consent as a result of subsequent  event  would arise  in such a case, where cognizance of offence is  taken by  the court. The reasoning of the Division Bench is  that the consent once given, cannot become invalid merely because the  evidence  by which the offence is sought to  be  proved changes  as  a result of subsequent events.  Learned  Judges observed  that the offence being one and the same,  another written consent because of difference of opinion between the Public  Analyst  and  the  Director   of  the  Central  Food Laboratory,  cannot be insisted upon before proceeding  with the trial of such a case.

     Subsequently  a  Full Bench of the same High Court  in Prahladbhai  Ambalal  Patel  v.  State of Gujarat  and  anr. {1984(2)  PFA  Cases  27}  has approved  the  ratio  of  the Division Bench in Ambalal Maganlal (supra).  S.B.  Majumdar, J.   (as his Lordship then was) speaking for the Full Bench, after  referring  to various passages of the  said  Division Bench decision, has observed that the aforesaid decision of the  Division  Bench in our view succinctly brings  out  the correct  legal position pertaining to prosecution of accused

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under the Act.

     But  a Full Bench of the Himacahal Pradesh High Court, after  considering  the aforesaid decisions of  the  Gujarat High  Court took a different view in Rattan Lal v.  State of Himachal Pradesh {1989 (2) PFA Cases 190}.  The ratio of the said  decision  is extracted below:  We are clearly of  the opinion,  that  where the report of the Director  finds  the sample to be adulterated for a reason, though different from the  one  found by the Public Analyst, which does not  alter the  nature of the offence in the sense of bringing about  a change of specie for which it is punishable under Section 16 of the Act, there is no necessity of seeking a fresh written consent  for  continuance  of the  proceedings  against  the offender.  Where, however, the difference in the two reports is  such that it results in altering the basic nature of the offence,  in the sense of the specie thereof, for which  the consent  was obtained earlier on the basis of the report  of the  Public  Analyst, the complainant must bring  the  facts found  by  the  Director to the notice  of  the  appropriate authority for a decision whether the offender deserved to be prosecuted or not.

     We  find  the reasoning of the Division Bench  of  the Gujarat  High Court in State of Gujarat v.  Ambalal Maganlal (supra)  as  sound and in accordance with law.  There is  no good  reason  for making two different categories  of  cases with  the  help  of  Certificates  issued  by  Central  Food Laboratory.   The  Full Bench of the Himachal  Pradesh  High Court  missed  the basic legal position in this regard  that report  of  the  Public Analyst alone  is  contemplated  for instituting  the  prosecution  and consent  or  sanction  is necessary  only  for  such  institution, and  that  a  post- institutional development while exercising a statutory right conferred  on the accused for challenging the report of  the Public Analyst during trial is not a premise for turning the key  backward  for a fresh institution of  the  prosecution, whatever  be the result of the analysis made by the  Central Food  Laboratory.   Hence  in our view  the  legal  position propounded  by the Full bench of Himachal Pradesh High Court is erroneous.

     Nor  would the alternative contention advanced by Shri Romy  Chacko,  learned counsel for the respondent, based  on Section  216(5) of the Code of Criminal Procedure, help  the respondent.   That section deals with alteration of  charges framed by courts.  The section enables the court to alter or add to any charge at any time before judgment is pronounced. Sub-section  (5) thereof reads thus:  If the offence stated in the altered or added charge is one for the prosecution of which  previous sanction is necessary, the case shall not be proceeded  with  until  such sanction  is  obtained,  unless sanction  has been already obtained for a prosecution on the same  facts as those on which the altered or added charge is founded.

     What is intended is that a prosecution, which requires previous  sanction, cannot be started without such  sanction even by way of amending the charge midway the trial.  If the amended  charge  includes a new offence for  which  previous sanction  is necessary then prosecution for such new offence cannot  be  started  without such  sanction.   However,  the second  limb  of  the  sub-section makes it  clear  that  if sanction  was  already obtained for prosecution on the  same facts as those on which the new or altered charge is founded

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then no fresh sanction is necessary.

     The  facts  on which prosecution is founded under  the Act  were broadly that the accused had sold adulterated Toor Dal to the Food Inspector on 15-4-1996.  Variation regarding the  reasons or the data by which two different analysts had reached the conclusion that the sample is adulterated is not sufficient  to  hold  that  the basic  facts  on  which  the prosecution  is  founded, have been altered.  Hence  Section 216(5)  of  the Code would not improve the position  of  the accused  for  the purpose of obtaining fresh consent on  the facts of this case.

     We are, therefore, of the view that if the prosecution has  been  validly instituted, neither any new data nor  any added  reasons  contained in the Certificate issued  by  the Director  of the Central Food Laboratory would be sufficient to  annul  the  sanction  already obtained  with  which  the prosecution  was  already  instituted.   The  trial  has  to proceed  with the Certificate on record which superseded the Report of the Public Analyst.

     For the aforesaid reasons we allow this appeal and set aside the impugned order of the High Court.