Chittaranjan Das v. the State of Orissa

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. 11 CHITTRANJAN DAS v. ORISSA (Khanna, !.) The Judgment of the Court was delivered by Kl!ANNA, Chittaranjan Das appellant was convicted by Magistrate First Class Cuttack under section 16(1)(a) of the Pre· vention 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. 500. or in default to undergo rigorous imprisonment for a further period of six weeks. Appeal filed by the appellant was dismissed by the Additional 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 Juspeotor disclosed his identity N> 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 Jnspector 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 ro 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 acdllsed.

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 accused has been mentioned in the judgments of the trial magistrate as well as thme of the Additional Sessions Judge and the High Court to be March 14. 1964. This datll was wrong because on reference to the reoord 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 bnt 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 bv 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 bv the Food Inspector had been taken out of the frying pan 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 bv the Superintendent of Police, Vigilance for the prosecution of the accused • was not in conformity with section 20 of the Act as the authority S1JPREI\1E COURT REPORTS ( 1974 j 1 S.C.P. contemplated by that section must be in respect of each imlivi<.Iual case and a' general authority give!) 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 beh:ilf 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 respeot 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 per mitted the appellant to agitate it before us in this Court. The main contention which has been advanced in appeal !x:forc Liii 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 Govermncnt or a local authority." On December 16, 1964 a notification was issued by the Orissa Government authorising, inter alia, the Superintendent of Police Oittaeik Vigilance Division to give written consent for instituting prosecutions for offences under the Act within the local limits of Cuttack Municipality. The notificatiqn reads as under : HEALTH DEPARTMENT NOTIFICATION The 16th December, 1964 "No. 25485-H.-II' 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 Govemment do hereby authorise the following officers of the Politi" cal 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 ClllTl.ll<l,J.1:-0 D.IS v. ORISS.\ (Klu11111a, J.) G;;J respect of cases delectcd by the Food Inspectors attached 10 the concerned Vigilance Divisions:- N amc of ofliccr I I ) Superintendent of Police, Cuttack Vigilance Division Local Limits Cuttack Municipality By order of the Govern0r 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 amentling Act was in section 20 of the Act. As a result 0f 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 autl1oriscd in this behalf, by general or special order, by the Central Government or the State Government or a local authority;" fhe 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 oounsel, essential under section 20, as it stood before· the amendment, that the authority should be in respect of some specified individual offence. As nolification dated December 16, 1964 was issued heforc 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 offences under the Act committed within the local limits of Cultack Municipality, the said notification, it is urged. was not in accordance with law. As against the above, Mr. Chatterjee on behalf of the State ha< argued ·that there is no infirmity in the notification d:itcd Decemhcr 16, 1964 and such a notification could have been validly i;sucd 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 abow that the short question which arises for consideration is whether it is permissible for the State Government or local autl1ority 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 offences under the Act without mentioning a specified individual offence. We have reproduced sup;{EME COURT REPORTS [ 197·l] 1 s.c.R. above section 20, as it stood before the amendmen~ and we find nothing in its language which makes it imperative to specify a pa.iii· cular offence in the order authorising a person to give consent to the institution of prosecution. The words "in this behalf" in the above provision, to which our attention has 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 offences under the Act.

It is diffi~ult 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 offences under the Act but must relate to some specified individual oiience. If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appelfant were to be accepted, in such an event no general authority can be conferred even under su~tion ( 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 \Vould 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 offences 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 !peal 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. Petusal 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 offences under the Act unless written consent to the institution of such prosecutions was given by the State Govenunent 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 its mind and dealing with each individual case of prosecution under the Act. Provision was accordingly made 1io 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 CH!TTARANJAN D.\S v. ORISSA (Khanna, J.) 66 l State Government or local authmity 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 autho· rity first to authorise a person to give written consent in respect of an individual case of prosedution and thereafter for the person autho· riscd to pass another order for giving the written consent.

The result would be that what could be done in one step by the State Govern· meat 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 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 contemp· lated 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 · off.mces. The amendment made ia 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(') and the Andhra Pradesh High Court in the case of Public Proseoutor v. Thatha Rao &Ors.(') 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. (I) A. I. R. 1966 Madras 194. (2) A. I. R. 1967 Mysore JJ. (3) A. I. R. 1968 A. P. 17. Appeal dismissed.