Judgment
As delivered
PETITIONER:THE STATE OF BOMBAY
Vs.
RESPONDENT:PARSHOTTAM KANAIYALAL.
DATE OF JUDGMENT:31/08/1960
BENCH:AYYANGAR, N. RAJAGOPALABENCH:AYYANGAR, N. RAJAGOPALADAS, S.K.HIDAYATULLAH, M.
CITATION:1961 AIR 1 1961 SCR (1) 458CITATOR INFO :F 1977 SC 912 (4)R 1986 SC2160 (12)
ACT:Criminal Trial-Statute barring prosecution except withwritten consent of competent authority-Whether consent mustbe 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 FoodInspector for selling adulterated milk. Section 20(1) ofthe Food Adulteration Act, 1954, provided that noprosecution shall be instituted under the Act " except by,or with the written consent of, the State Government orlocal authority or a person authorised in this behalf by theState Government or a local authority ". On the applicationof the Food Inspector consent in writing was given by aperson authorised by the local authority. But it wascontended by the respondent that the written consent was ofno avail as it did not in terms name the person in whosefavour it was given.Held, that where a prosecution was launched on the basis ofa written consent granted by the competent person orauthority, it was not necessary to name the complainant inthe consent. The Act did not in terms require that thecomplainant shall be named in the written consent nor couldsuch a limitation or condition be gathered as a necessaryintendment of the provision. The written consent was forthe launching of a specified prosecution and need notnecessarily be in favour of a complainant authorising him tofile a complaint.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 56 of1959.
Appeal by special leave. from the judgment and order dated-December 18, 1957, of the former Bombay High Court inCriminal Revision No. 1671 of 1957, arising out of thejudgment and order dated June 7, 1957, of the SessionsJudge, 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 deliveredby459AYYANGAR J.-This appeal by special leave of this Courtraises a very short point regarding the construction of s.20(1) of the Prevention of Food Adulteration Act, 1954 (37of 1954).
The respondent owned a milk shop within the Municipal limitsof the city of Baroda. The Food Inspector of theMunicipality visited the shop on July 9, 1956 and purchasedmilk for analysis. This was sent to the Public Analyst andwhen his report was to the effect that the sample wasadulterated, the Inspector applied to the Chief Officer,Borough Municipality, Baroda, for the latter's consent, forinstituting criminal proceedings under the Prevention ofFood Adulteration Act, 1954 (referred to hereafter as theAct), against the respondent. A consent in writing to theinitiation of this prosecution was given by the ChiefOfficer and thereafter the complaint out of which thisappeal arises was instituted charging the respondent with anoffence under s. 16 read with s. 7 of the Act for sellingadulterated food.
The case was tried by the Special Judicial Magistrate, FirstClass, Baroda. Besides denying his guilt, the accusedraised various technical objections, the principal of whichwas that the prosecution was incompetent because of non-compliance with the terms of s. 20(1) of the Act. Thisprovision, omitting the proviso to which it is unnecessaryto refer, runs:
" No prosecution for an offence under this Act shall beinstituted except by, or with the written consent of, theState Government or a local authority or a person authorisedin this behalf by the State Government or a localauthority."
The Magistrate overruled these objections and holding theaccused guilty of the offence charged sentenced him to pay afine of Rs. 300/- and in default to rigorous imprisonmentfor three months. Dealing with the objection based on s.20(1) of the Act with which alone we are concerned, thelearned Magistrate said:
" In the present case Baroda Municipal Borough is the localauthority and it has authorized the Chief Officer and thehealth officer of the Municipality to59460grant sanction to institute proceedings under this Act byits resolution No. 222 dated May 7,1956, the Chief Officerhas given consent in writing to lodge this coin plaintagainst the present accused under the Act on October 13,1956. The said consent in writing is on record at Ex. 10/7and the copy of the Resolution of the Municipalityempowering the Chief Officer and the health officer is alsoon record at Ex. 18/8. Thus in the present case there is avalid consent in writing given by the Chief Officer who hasbeen duly authorised in this behalf by the Baroda MunicipalBorough, to institute proceeding against the present accusedunder the Act............... The Food Inspector can lodgethe complaints under the Act if consent in writing is givenby a local authority or a person empowered in this behalf bythe local authority. The food inspector had in the presentcase submitted all the papers to the Chief Officer who hasbeen invested with the powers by the Municipality to giveconsent in order to seek his necessary consent in writingbefore lodging the complaint against the present accused.And after going through the said papers the Chief Officerhad duly given consent to him to lodge this complaint. Itis true that the consent does not bear the name of the foodinspector but it impliedly follows that the consent wasgiven by the Chief Officer to the person, viz., thecomplainant food inspector who sought the permission andnone else."
Against his conviction and sentence the respondent filed anappeal to the Court of the Sessions Judge at Baroda. TheAppellate Court set aside the order of conviction andsentence on the ground that the Food Inspector was notcompetent to institute the prosecution under s. 20(1) of theAct. Relying on the decision of a single Judge of theMadras High Court in Cannanore Milk Supply Co-operativeSociety, In re(1), the learned Sessions Judge held thatunder the terms of the section, the only authority withwhose " written consent " a prosecution could be institutedwas 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.
461State Government or the local authority " were competent togrant " written consents " for the initiation ofprosecutions. He, therefore, set aside the conviction andsentence and discharged the respondent.
The matter was thereafter brought up before the High Courtof Bombay by the State by an appeal later converted into aCriminal Revision petition. The learned Judges of the HighCourt affirmed the order passed by the learned SessionsJudge. They disagreed with the Sessions Judge in hisinterpretation of s. 20(1) that a prosecution could not beinstituted with " the written consent" of any authorityother than the State Government. They, however, held that "
the written consent " should name the person who couldinstitute the complaint and that as " the consent " in thepresent case bad not named the Food Inspector as the personauthorized to file the complaint, the prosecution was notlegally initiated. It is from this decision of the HighCourt that the State of Bombay, having obtained specialleave of this Court, has brought this matter up before us.There is here no dispute that " the local authority theBaroda Municipality, had authorized the Chief Officer of theMunicipality to grant consents under s. 20(1) of the Act forthe filing of complaints in regard to offenses under theAct. There is no dispute either that the Chief Officergranted on October 13, 1956, his " written consent " to thefiling of this complaint against the respondent. The "
consent " is in the following terms:
"Under authority vested in the Chief Officer of the BarodaBorough Municipality............... sanction is hereby givenfor instituting prosecution against the following milkvendors for contravening the provisions of Government ofIndia's Prevention of Food Adulteration Act, 1954."
The name of the respondent, his address and the date of theoffence are then set out and it is followedby a paragraph which runs:
" This sanction is accorded after going through MilkAnalysis Report and other pertinent documents and the natureof offence committed by each of the462above persons as required by s. 20 of the Prevention of FoodAdulteration Act, 1954."
We may, at the outset, point out that we entirely agree withthe learned Judges of the High Court in their view that onthe terms of a. 20(1) a prosecution could be instituted withthe written consent not merely of the State Government but "
of a focal authority " or " a person authorised in thisbehalf by the State Government or a local authority ". Inour opinion, on the language of the sub-section no otherconstruction appears possible. The learned Judges of theHigh Court said:
" The construction which has been put by the learnedSessions Judge obviously ignores the two commas, whichappear in the section before and after the clause " or withthe written consent of ". One of the commas precedes, andthe other follows the clause " or with the written consentof " The plain grammatical meaning of this section is thatthe written consent may be of the State Government, or alocal authority, or a person authorised in that behalf bythe State Government or local authority. In our view, underthis section, the prosecution can be instituted (1) by theState Government, (2) by- a local authority, (3) by a personauthorised in that behalf by the State Government, or (4) bya person similarly authorised by a local authority.Further, a prosecution can also be instituted with theconsent of any of these four authorities."
Even apart from-the two commas, the construction which foundfavour with the learned Judge of the Madras High Court inCannanore Milk Supply Cooperative Society, In re (1) is notpossible without the sub-section being rewritten in theseterms:
" ............ shall be instituted by or with the writtenconsent of the State Government or by a local authority or aperson authorised in this behalf by the State Government ora local authority."
Without the insertion of the word " by " before the words "
a local authority ", it would not be possible to exclude thewritten consents of local authorities etc. from the contentof the sub-section.
(1) (1956) 2 M.L.J. 465.
463As already stated, the reasoning, however, by which thelearned Judges of the High Court held the prosecution to beincompetent was that " the written consent " did not interms, 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 thepresent case, or a written consent, without mentioning theperson to whom such consent or sanction is given, would, inour view, not be a sufficient compliance with the terms ofthe sanction................ The present written consentdoes not mention the name of the Food Inspector as theperson competent to institute the prosecution, and thereforewe must hold that the institution of the prosecution, waswithout jurisdiction".
The learned Counsel for the appellant-State challenged thecorrectness of this construction. He referred us to theanalogy of the decisions rendered on s. 197 of the CriminalProcedure Code where it has been held that " the sanction "
referred to need not name the person who could institute theprosecution. We consider it unnecessary to canvass therelative scope of the language of s. 197 of the CriminalProcedure Code and of s. 20(1) of the Prevention of FoodAdulteration Act. We prefer to rest our decision on theterms of s. 20(1) itself. To start with, the Statute doesnot in terms prescribe that the complainant shall be namedin the " written consent ". The only question, therefore, iswhether such. a limitation or condition could be gathered asa necessary intendment of the provision. In the firstplace, the reason of the rule could not suggest or implysuch a condition. The rule has undoubtedly been designed toprevent the launching of frivolous or harassing prosecutionsagainst traders. It therefore provides that the complaintshould be filed, either by a named or specified authority orwith the written consent of such authority. To read byimplication that before granting a written consent, theauthority competent to initiate a prosecution should applyits mind to the facts of the case and satisfy itself that aprima facie case exists for the464alleged offender being put up before a Court appearsreasonable, but the further implication that the complainantmust be named in the written consent does not, in ouropinion, follow. In the present case, the Analyst's Reportwas before the Chief Officer of the Municipality and it wasafter considering that report and the connected documentsthat the written consent or sanction was given. In thesecond place, the subsection itself contains an indicationthat the written consent is for the launching of a specifiedprosecution, and not one " in favour " of a complainantauthorising him to file the complaint. Omitting for themoment 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 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.
