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The State Of Maharashtra v. Nizamuddin Haji Mohamedkasam
Summary of Opinion — Jahagirdar, J.
Factual and Procedural Background
The State challenged an order of discharge dated 6 April 1977 passed by the learned Metropolitan Magistrate of the 28th Court, Bombay, in Case No. 5.S of 1976. The accused, the proprietor of a soda factory, was alleged to have sold bottled drinks; one sample taken on 7 October 1974 was of a drink named "Real Falsa". A sample seized was analyzed by the public analyst who reported presence of a prohibited colour. Before framing charge, the accused tendered the sample for analysis to the Central Food Laboratory, Calcutta; that laboratory's Director reported saccharin beyond the prescribed limit. The two laboratory reports were mutually inconsistent (the public analyst's report did not disclose saccharin; the Central Food Laboratory's report did not disclose prohibited colour). The learned Magistrate discharged the accused on the basis of this inconsistency. The State, via the public prosecutor, petitioned to challenge that discharge.
Legal Issues Presented
- Whether the learned Magistrate was justified in discharging the accused because the report of the public analyst and the report of the Central Food Laboratory were inconsistent.
- Whether the report of the Central Food Laboratory (which, under s. 13 of the Act, supersedes the public analyst's report) required framing of a charge and, if so, whether the absence of a fresh written consent under s. 20(1) for the offence indicated by that report barred proceeding with prosecution.
- Whether the written consent (sanction) given under s. 20(1) for prosecution relating to one type of adulteration can be validly applied to prosecute the accused for a different type of adulteration disclosed by a subsequent report.
- What remedy the Magistrate should follow if it is found that no sanction exists for the particular offence disclosed before the Court.
Arguments of the Parties
State / Public Prosecutor (Mr. Patil)
- Criticised the Magistrate's discharge: it was not open to discharge the accused because both reports indicated adulteration (though differing in kind) and neither report stated the sample was not adulterated.
- Relied on s. 13 of the Prevention of Food Adulteration Act to assert that the Central Food Laboratory report supersedes the public analyst's report, and therefore the Magistrate should have framed a charge in light of that Central Food Laboratory report.
- Contended that the Magistrate effectively tried the case without framing a charge and that the discharge amounted almost to an acquittal.
Accused / Defence (Mr. Baadkar)
- Contended that s. 20 of the Act is mandatory and prohibits institution of any prosecution without the written consent of the authority specified in that section.
- Argued that the sanction in the present case related only to prosecution for the offence indicated by the public analyst's report (presence of prohibited colour) and could not be automatically extended to prosecute for an offence consisting of addition of saccharin beyond the prescribed limit as shown by the Central Food Laboratory report.
- Maintained that a fresh sanction (consent) was necessary in light of the different offence disclosed by the Central Food Laboratory report.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dhian Singh v. Saharanpur Municipality, 1969 2 SCC 371 | Authority can confer power to give consent under s. 20(1) in advance; question of applying mind to the facts of a particular case did not arise in that context; person authorised can give consent and complaint may be filed with such consent. | The Court relied on this authority to confirm that an authorised person may give consent and that the point is settled; it distinguishes this confirmation from the separate question whether the consenting authority must apply its mind to the facts when granting consent for a particular prosecution. |
| Corporation of Calcutta v. Md. Omer Ali, 1976 4 SCC 527 | Latest authority (as of opinion) on the question of authorised person giving consent under s. 20(1). | The Court cited it as confirming the settled law that a person authorised by the competent authority may give the written consent required under s. 20(1). |
| State of Bombay v. Parshottam Kanaiyalal, [1961] A.I.R. S.C. 1, S.C. 63 Bom. L.R. 265 | Discussed whether consent could be given by an authorised person; observed that while applying mind to facts before granting consent appears reasonable, the sub-section did not require that the complainant be named in the written consent; indicated that the authority must consider reasonableness and propriety of prosecuting. | The Court relied on paragraph 13 observations to support the view that sanction must be given for prosecution in respect of a particular offence by a particular person and that sanction for one offence does not entitle prosecution for another offence. |
| Mahadeo v. State of Rajasthan, [1971] Cri. L.J. 1768 (Single Judge, Rajasthan High Court) | Held that sanction given for one offence cannot be utilised for prosecution in respect of another offence. | The Court agreed with this single-judge view and cited it in support of the conclusion that a fresh sanction is required when the offence disclosed changes. |
| K.B. Mahamad v. G.D. Deo, (Unreported) 1973 Criminal Revision Application No. 507 of 1972 (S.K. Desai, J., 1 Oct 1973) | Addressed whether sanction for prosecution in respect of "baby chocolates" could be valid for prosecution in respect of "baby food"; answered in the negative—sanction for one offence cannot be used for another. | The Court cited this unreported decision as additional support for the proposition that sanction in respect of one offence cannot be applied to another distinct offence. |
| Nagraj v. State of Mysore, [1964] A.I.R. S.C. 269 | Held that if at any stage the Court concludes that prosecution could not have been instituted without sanction of a particular authority and such sanction is not shown, the Court must drop the proceedings and reject the complaint. | The Court invoked this authority to state the correct course where no sanction exists: proceedings should be dropped and the complaint returned/rejected rather than ordering discharge. |
Court's Reasoning and Analysis
The Court began with the statutory provision relied upon by the parties. It reproduced s. 20(1) of the Prevention of Food Adulteration Act, which mandates written consent of the Central Government, State Government, local authority or a person authorised by any of these before instituting any prosecution under the Act.
The Court analysed s. 20(1) as comprising two parts: (a) the requirement of written consent; and (b) specification of the authorities who may give such consent. It observed that the authorisation to give consent may be conferred by a general order describing a class of persons and that such authorisation (i.e., the act of delegating the power to give consent) need not itself involve the authority applying its mind to the facts of any particular case.
The Court then addressed the central contention advanced by Mr. Baadkar: that the consent envisaged by s. 20(1) is in the nature of a sanction and that a sanction cannot be validly given unless the facts of the case—that is, the nature of the alleged offence—are disclosed to the sanctioning authority so that it may apply its mind. The Court accepted this contention. It reasoned that:
- What was presented to the consenting authority in the instant case was the public analyst's report indicating adulteration of one specific type (presence of prohibited colour), which informed the formation of the consenting authority's mind in granting sanction.
- After the Central Food Laboratory's report disclosed a different kind of adulteration (saccharin beyond prescribed limits), a different offence (or at least different ingredients of the offence) emerged; a prosecution based on that subsequent report would thus be for a different offence from the one for which sanction had been given.
- Therefore, a fresh application of mind by the consenting authority to the new facts is necessary and a fresh written consent under s. 20(1) would be required before instituting prosecution on the basis of the Central Food Laboratory report.
The Court further observed that, concededly, the Central Food Laboratory's report supersedes the public analyst's report under s. 13; consequently, a charge framed must reflect the Central Laboratory's findings. But, because there was no sanction for prosecution corresponding to the offence revealed by that report, the Magistrate could not legally proceed to try the case on that basis.
The Court also clarified the correct procedural course where sanction is absent: rather than passing an order of discharge, the Magistrate should return the complaint to the complainant. The Court relied on Nagraj v. State of Mysore for the proposition that when sanction is required and is not shown, the only competent order is to drop the proceedings and reject the complaint.
Holding and Implications
Holding: The Court partly allowed the application. It set aside the order of discharge passed by the learned Magistrate in Case No. 5.S of 1976.
Direct effect on the parties and case: The Court directed that the proceedings in Case No. 5.S of 1976 be dropped and that the complaint be returned to the complainant. The Court concluded that prosecution for the offence disclosed by the Central Food Laboratory's report could not be proceeded with in the absence of a fresh written consent under s. 20(1).
Broader implications: The opinion emphasises that the written consent required by s. 20(1) operates as a sanction for prosecution that must correspond to the particular offence and the particular person charged; sanction given for one offence cannot be automatically extended to prosecute for another distinct offence disclosed later. The opinion does not state that it is creating a new precedent but relies upon and applies existing authorities to reach its conclusion.
Disposition: Application partly allowed; order of discharge set aside; proceedings dropped and complaint returned to the complainant.
Jahagirdar, J.:— By this petition the State seeks to challenge the order of discharge passed by the learned Metropolitan Magistrate of 28th Court, Bombay, in Case No. 5.S of 1976. In this case the opponent, who will hereinafter be referred to as the accused, was sought to be prosecuted for an offence punishable under s. 16 of the Prevention of Food Adulteration Act, read with s. 7(i) of the said Act and R. 23 of the Rules framed thereunder. According to the averments in the complaint filed before the Magistrate, on October 7, 1974 samples were taken of several bottled drinks which were being sold by the accused who was the proprietor of a soda factory. One of the drinks was named “Real Falsa”. A sample of this drink was sent to the public analyst who reported that the sample contained certain amount, of prohibited colour. Before the charge was framed the accused tendered the sample which was with him and asked for the same being sent to the Central Food Laboratory at Calcutta which was accordingly done. The report of the Director of that Laboratory shows that the sample which that Laboratory analysed contained saccharin beyond the prescribed limit. The two reports viz. the report of the public analyst and the report of the Director of Central Food Laboratory at Calcutta are mutually exclusive and have no common results of analysis at all. The public analyst's report does not disclose any presence of saccharin in the drinks; the report of the Central Food Laboratory does not disclose the presence of prohibited colour. Considering the inconsistency between the two reports, the learned Magistrate felt obliged to discharge accused No. 1 which he did by his judgment and order dated April 6, 1977.
2. The State has sought to challenge this order of discharge. Mr. Patil, the learned public prosecutor appearing in support of the petition, has criticised the approach of the learned Magistrate and has contended that it was not open to the Magistrate to discharge the accused in the instant case when both the reports showed that the sample seized from him was adulterated in one or another manner. Neither of the report says that the sample is not adulterated. Under s. 13 of the Act the report of the Central Food Laboratory supersedes the report given by the public analyst, and if this is so, says Mr. Patil, the learned Magistrate ought to have framed a charge in the light of the report submitted by the Central Food Laboratory. The learned trial Magistrate, it is complained, had practically tried the case even without framing the charge and the order of discharge which has been passed is almost in the nature of an order of acquittal. Though there is considerable justification in the complaint of Mr. Patil that it was not open to the learned Magistrate to order the discharge of the accused because of the inconsistency between the two reports, the order of discharge is sustainable, as has been pointed out by Mr. Baadkar appearing on behalf of the accused, on other grounds. Mr. Baadkar points out that s. 20 of the Act which is mandatory prohibits the institution of any prosecution in respect of an offence without the consent of the authority mentioned in that section. According to Mr. Baadkar the sanction that was accorded in the instant case was for the prosecution of the accused in respect of an offence which showed that the sample sold by him contained prohibited colour. This sanction could not be automatically extended to the prosecution for an offence which consists of the addition of saccharin beyond the prohibited limit. For reasons which I now proceed to give, I have to accept the contentions of Mr. Baadkar and uphold that the prosecution could not have been proceeded with in the absence of a fresh sanction in the light of the findings of the Central Food Laboratory.
3. Section 20 of the Prevention of Food Adulteration Act as it stood at the time of the institution of this prosecution is as follows:
“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:”
4. Rest of the section need not be taken note of for the purpose of disposal of this petition. Sub-section (1) as reproduced above, consists of two parts. The first part speaks of a written consent without which no prosecution for an offence under that Act shall be instituted. The second part of the sub-section mentions the authorities who can give such written consent. These authorities are the Central Government or the State Government or a local authority. A person authorised by any one of the aforesaid three authorities can also give consent. The authorisation of a person for giving consent which is to be made by one or the other three authorities mentioned therein need not be of a specific person. That authorisation may be by a general order by describing the class of persons who can give consent. While so authorising a person for the purpose of giving consent under sub-s. (1) of s. 20 there is no obligation cast on the authority to apply its mind to the facts of the case.
5. In Dhian Singh v. Saharanpur Municipality . 1969 2 SCC 371, the complaint had been filed by the food inspector of the Municipal Board, Saharanpur. The accused was convicted in the trial Court and this conviction was upheld by the appellate Court. Thereafter a review was sought to be obtained of the order of conviction by contending that the food inspector was not properly authorised by the Municipal Board. Though the Supreme Court did not countenance the raising of such a point for the first time, it proceeded to discuss the relevant question in para. 5 of the judgment. The Supreme Court pointed out that the question of applying one's mind to the facts of the case did not arise as the authority to be conferred under s. 20(1) can be conferred long before a particular offence has taken place. It is now also well settled that the person who is authorised by one or the other of the three authorities mentioned in sub-s. (1) of s. 20 can himself give consent and the complaint may be filed by any person with the consent of the person so authorised. This point is no longer in dispute and it is not necessary to discuss any authorities in that regard. The case of Corpn. of Calcutta v. Md. Omer Ali . 1976 4 SCC 527., is the latest authority on this question.
6. The question which Mr. Baadkar has raised is regarding the application of the mind of the consenting authority to the facts of the case before a prosecution is instituted. The consent envisaged under s. 20 is almost in the nature of a sanction and obviously, says Mr. Baadkar, a sanction cannot be accorded unless the facts of the case are disclosed to the sanctioning authority. In the instant case the facts as disclosed to the sanctioning authority and on the basis of which the sanction was given were the adulteration of the sample seized as shown by the report of the public analyst. The adulteration which is thus shown will be an adulteration of a particular type mentioned in one of the clauses in s. 2 of the Act. After the report of the Director of the Central Food Laboratory was received, another type of the adulteration was disclosed. Therefore, the offence with which the accused would be charged on the basis of the report of the Central Food Laboratory will be different from the offence with which he would have been charged on the basis of the report of the public analyst. When s. 20 says that no prosecution in respect of an offence shall be instituted without the consent in writing of the requisite authority, in the instant case a prosecution for the different offence which now emerges from the report of the Director of the Central Food Laboratory could not be launched; it will naturally be incompetent in the absence of fresh consent given under s. 20(1) of the Act. The nature of adulteration is an important question which must go into the formation of the mind of the consenting authority. What was before the consenting authority in the instant case was the report of the public analyst and the contents of that report along with the facts placed went into the formation of the opinion which opinion may not be the same if the report of the Central Food Laboratory discloses a different kind of offence, though under the same Act. In my opinion, where different ingredients of the offence are disclosed by the report of the Central Food Laboratory, fresh application of mind to the new facts will be necessary before a consent could be given.
7. In any case if, as is conceded, the report of the Central Food Laboratory supersedes the report of the public analyst, a charge in terms of that report will have to be framed by the learned Magistrate. He cannot do so unless a sanction for the offence with which now the accused would be charged is given by the consenting authority. Since such a sanction has not been given for the institution of a prosecution for the offence now disclosed by the report of the Central Food Laboratory, the Magistrate could not legally proceed with this case.
8. In State Of Bombay v. Parshottam Kanaiyalal . [1961] A.I.R S.C 1, S.C 63 Bom. L.R 265., the question that fell for determination by the Supreme Court was whether the consent could be given by an authorised person. I have already mentioned above that this is in law so and has been held to be so by the latest judgment of the Supreme Court referred to above. In para. 13 of the said judgment, however, there are certain observations which lend support to the view I have taken. Pointing out that s. 20(1) of the Act did not prescribe that the complainant shall be named in the written consent either explicitly or by necessary implication, the Supreme Court proceeded to observe as follows (p. 3):
“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 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.” (Italics supplied).
9. In the same paragraph the Supreme Court proceeded to point out that the sub-section itself contains an indication that the written consent is for the launching of a specified prosecution and it is further mentioned that the authority has to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous. In my opinion, these words are a sufficient authority to hold that a sanction must be given for the prosecution in respect of a particular offence committed by a particular person and if the sanction is given for the prosecution in respect of one offence, prosecution in respect of another offence cannot be instituted. The same is the view taken by a single Judge of the Rajasthan High Court in the case of Mahadeo v. State of Rajasthan . [1971] Cri. L.J 1768., and with great respect I agree with the said view.
10. In an unreported judgment of Mr. Justice S.K Desai, K.B Mahamad v. G.D Deo . 1973 Criminal Revision Application No. 507 of 1972, decided by S.K Desai, J., on October 1, 1973 Unrep... Mr. Justice S.K Desai was dealing with the question whether the sanction given for the prosecution of an offence in respect of “baby chocolates” could be valid if the prosecution was for an offence in respect of “baby food”. The answer given by him was in the negative and also that sanction in respect of one offence cannot be utilised for prosecution in respect of another offence.
11. If the Magistrate finds that there is no sanction for prosecution of the particular offence before him, the course open to him is not to pass an order of discharge but to return the complaint to the complainant.
12. In Nagraj v. State Of Mysore . [1964] A.I.R S.C 269., it has been held that if the Court at any stage of the proceedings comes to the conclusion that the prosecution could not have been instituted without the sanction of a particular authority and that sanction is not shown to have been given, then the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint be rejected.
13. In the result, I partly allow this application and set aside the order of discharge passed by the learned Magistrate in Case No. 5.S of 1976. I direct that the proceedings in the above-mentioned case be dropped and the complaint be returned to the complainant.
14. Application partly allowed.
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