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PETITIONER: SURESH H. RAJPUT ETC.

       Vs.

RESPONDENT: BHARTIBEN PRAVINBHAI SONI & ORS.

DATE OF JUDGMENT28/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (7) 199        JT 1995 (9)   210  1995 SCALE  (7)217

ACT:

HEADNOTE:

JUDGMENT:                             WITH Crl.A.  No.1613/95   @  SLP   [Crl.]  No.1924/92,   Crl.  A. No.1614/95 @  SLP [Crl.] No.1987/92, Crl.A. No.1615/95 @ SLP [Crl.]  No.1961/92,   Crl.A.   No.1616/95   @   SLP   [Crl.] No.1960/92, Crl.A.  No. 1617/95  @ SLP  [Crl.] No.  2373/93, Crl. A.  No. 1618/95 @ SLP [Crl.] No.2374/93, and Crl.A. No. 1619/95 @ SLP [Crl.] No.2295/92                          O R D E R      Leave granted.      Facts in  Criminal Appeal  @ SLP [Crl.] No.1755 of 1992 would be sufficient for disposal of all the appeals.      On June 4, 1986, the appellant-Food Inspector inspected the premises  of the  respondent and  purchased  pasteurized toned milk  in the presence of witnesses. He divided samples in three  bottles and gave one of them to the respondent. He took with  him two  samples of  which one was deposited with the court  and the  other was sent to the analyst. Report of the  analyst   indicated  that  the  milk  was  adulterated. Consequently, the  local Health  authority on  June 7,  1986 granted  sanction   under  Section   20  [1]   of  the  Food Adulteration Act, 1954 [for short, "the Act"] for laying the complaint against the respondent. In furtherance thereof, on June 7,  1986, a  complaint was  laid under  Section 16 read with Section  7 of  the  Act  against  the  respondent.  The Magistrate by  order dated  February 8,  1991 acquitted  the respondent on the ground that the consent given by the local health authority  was not  valid in  law, though he found on merits in  favour of the prosecution. On appeal filed by the appellant under  Section 378  [4] of  the Code  of  Criminal Procedure, 1973,  the High  Court by order dated October 28, 1991 refused  leave and  confirmed the acquittal. Thus these appeals by special leave.      Section 20  [1] of the Act provides thus      :      "20. Congnizance and  trial of offences.

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    - [1]  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."      A reading  of Section  20 [1]  clearly  indicates  that before laying  the prosecution for an offence under the Act, not being an offence under s.14A, the condition precedent is that written  consent of the Central Government or the State Government or  the  person  authorised  in  this  behalf  by general or  special order  by the  appropriate Government is mandatory.      It is  not in  dispute that  the local health authority has been  designated with  the power  to accord sanction for laying the  prosecution under  the Act.  Material portion of the consent order reads thus :      "I  hereby  give  consent  to  the  Food      Inspector Shri S.H. Rajput to prosecute      (name of  the accused  was mentioned  in      each case)       x                  x                  x           For contravening  the provision  of      Food Adulteration Act 1954 as alleged in      the above report of the Food Inspector.           This consent  is given  after going      through the  analysis report  of  public      Analyst and  other pertinent  papers and      documents  and  the  nature  of  offence      committed by  the alleged  offenders, as      required  by  Section  20  of  the  Food      Adulteration Act 1954."      It would  thus be clear that the sanctioning authority, viz., local  health authority  had considered  the report of the public  Analyst  and  other  pertinent  papers  and  the documents which  contained the  report of the Food Inspector and  thereafter   accorded   sanction   to   prosecute   the respondent.      The question that emerges is whether the sanction is in accordance with  law. The  learned Magistrate  held that the sanction was  a cyclostyled order and that the authority did not apply its mind to the facts constituting the offence and that, therefore, the grant of sanction is invalid in law. We find it difficult to give acceptance to the reasoning of the learned Magistrate.  Unfortunately, the learned single Judge of the High Court did not apply his mind nor adverted to any of the material questions. He merely concurred with the view expressed by  the Magistrate in a cryptic order. In fact, on merits, the learned Magistrate has held that the prosecution had established  the offence. All that was held was that the sanction was  not in  accordance with  Section 20 [1] of the Act.      Learned counsel  for the  respondents sought to rely on the decision  of this  Court in  A.K. Roy & Anr. v. State of Punjab & Ors. [(1984) 4 SCC 326]. That was a case where sub-

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delegation was  made by  the Local [Health] Authority to the Food Inspector for laying the prosecution. It was not a case of granting  any sanction  by him.  In fact,  this Court had pointed out  in paragraph  9 that  "it is common ground that the prosecution  in the  instant case  has not been launched either by  or  with  the  written  consent  of  the  Central Government or  the State  Government. It, therefore, becomes necessary to  ascertain whether the Food Inspector, Faridkot was duly  authorised to  launch a  prosecution".  Then  this Court had  examined the  question and  held in  paragraph 11 that   "the terms  of Section  20 [1]  of  the  Act  do  not postulate further delegation by the person so authorised; he can only  give his  consent in  writing when he is satisfied that a  prima facie case exists in the facts of a particular case and  records his  reasons for  the  launching  of  such prosecution in  the public  interest". In  other words, this Court had  held that  the local  (Health) authority  has  no power to  delegate the  power to  launch prosecution  to the Food  Inspector,  but  in  terms  of  Section  20  [1],  the authority can  give  its  consent  in  writing  when  it  is satisfied that  prima facie  case exists  in the  facts of a particular case for laying the prosecution.      In the State of Bombay v. Parshottam Kanaiyalal [(1961) 1 SCR  458], far from helping the respondents, this Court at page 461  held that  "this sanction  is accorded after going through Milk  Analysts Report  and other pertinent documents and the  nature of  offence committed  by each  of the above person as  required by  Section 20 of the Prevention of Food Adulteration  Act,   1954".  This  Court  had  approved  the sanction given  by the local (Health) authority of this very Municipality in  this case  and it  was held  that it is not necessary that  the name of the offender should be indicated in the sanction order. After this judgment, to avoid further protraction, the  Form was  revised  and  the  name  of  the offender and  the authority  to whom  sanction is given have been expressly specified in the sanction order.      In State  of Bihar  v, P.P.  Sharma [(1992) Supp. 1 SCC 222], one of us, [K. Ramaswamy, J.] considered the effect of the sanction  under Section  197 of  the Criminal  Procedure Code at page 268 thus :           "It is  equally well  settled  that      before granting  sanction the  authority      or the  appropriate Government must have      before it  the necessary  report and the      material   facts   which   prima   facie      establish  the   commission  of  offence      charged for  and  that  the  appropriate      Government would  apply  their  mind  to      those facts.  The order  of sanction  is      only an  administrative act  and  not  a      quasi-judicial  one   nor   is   a   lis      involved.  Therefore,   the   order   of      sanction  need   not  contain   detailed      reasons  in   support  thereof   as  was      contended by  Sri Jain.  But  the  basic      facts that  constitute the  offence must      be apparent  on the  impugned order  and      the record  must bear out the reasons in      that regard."      It is  seen that  the analysis  report which was placed before the  local (Health) authority and the other pertinent material in connection therewith have been placed before the sanctioning authority.  After going  through  the  material, sanction was  granted for  laying the  prosecution. At  that stage, it  was not  for the  sanctioning authority  to weigh

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pros and cons and then to find whether the case could end in conviction or  acquittal or the adulteration was abnormal or marginal etc.  All these are not matters for the sanctioning authority to  weigh and to consider the pros and cons of the case before granting sanction to lay prosecution against the respondents.      Considered from  this perspective,  we  hold  that  the learned Magistrate  was not right in law in holding that the sanction granted under Section 20 [1] is not valid in law.      In appeal  @ SLP  [Crl.] No.1924  of 1992,  the learned Magistrate had  further held that the Food Inspector did not have  training   for  required  number  of  days  and  that, therefore, he was not competent to take the samples. We find that the  Magistrate illegally proceeded on that assumption. The  qualifications   of  the   Food  Inspector   cannot  be challenged in  collateral proceedings.  What is  material is whether  the   Food  Inspector  had  taken  the  samples  in accordance with  the provisions of the Act or the rules made thereunder. In case the Court finds that if he committed any contravention, what  would be  its effect on the prosecution is a  matter to  be considered but his qualifications cannot be looked into when he lays the prosecution for adulteration of the articles of food under the Act.      Considered from  this perspective,  the  only  question that remains to be considered is whether these are fit cases for interference.  At this  belated stage,  in the facts and circumstances of  the cases,  we think  that it would not be proper under  Article 142  to interfere.  This should not be treated as a precedent in future cases.      The appeals are accordingly disposed of.