Full Judgment Text
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PETITIONER:
A.K. ROY & ANR.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT29/09/1986
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1986 AIR 2160 1986 SCR (3) 961
1986 SCC (4) 326 JT 1986 566
1986 SCALE (2)566
ACT:
Prevention of Food Adulteration Act, 1954: ss. 20(1)
and 24(2)(e)/ Prevention of Food Adulteration (Punjab)
Rules, 1958: r. 3- Prosecution for an offence under the Act
- Sub-delegation of power-Validity of.
Interpretation of Statutes-Use of negative words-
Whether makes the provision absolute.
Administrative Law
Statute-Rules framed thereunder - sub-delegation of
power-Extent of.
HEADNOTE:
Section 20(1) of the Prevention of Food Adulteration
Act, 1954 dealing with cognizance and trial of offences
provides that no prosecution for an offence under that Act
shall be instituted except by, or with the written consent
o’ he Central Government or the State Government or a person
authorised in this behalf, by general or special order, by
the Central or State Government. Section 24(1) empowers the
State Government to frame rules for the purpose of giving
effect to the provisions of the Act, while s. 24(2) (e)
states that such rules may provide for the delegation of the
powers and functions conferred by this Act on the State
Government or the Food (Health) Authority to subordinate or
local authorities.
Rule 3 of the Prevention of Food Adulteration (Punjab)
Rules, 1958 framed by the State Government empowered the
State Government to delegate its powers to appoint Food
Inspectors, to authorise a person to institute prosecutions
for an offence under the Act and such other powers
exercisable by it under the Act as may be specified m the
order of the Food (Health) Authority of the State.
962
In pursuance of the provisions of r. 3 of the Rules the
State Government issued a Notification dated October 10,
1968 purporting to delegate its powers and functions
conferred by s. 20(1) of the Act to institute prosecutions
for an offence under the Act, to the Food (Health)
Authority. In terms of that Notification the Food (Health)
Authority issued a Notification dated September 7, 1972
authorising the Food Inspector, Faridkot to launch
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prosecutions under s. 20(1) for an offence under the Act.
On February 1, 1985 the Food Inspector, Faridkot filed
a complaint against the appellants for having committed an
offence punishable under s. 16(1) (a) (ii) of the Act for
alleged violation of rr. 24, 28, 29 and 32 of the Prevention
of Food Adulteration Rules, 1955.
During the course of the proceedings, the appellants
raised an objection that r. 3 of the Prevention of Food
Adulteration (Punjab) Rules, 1958 framed under s. 24(2) (e)
read with s. 20(1) of the Act was ultra vires the State
Government. Alternatively it was urged that by virtue of the
authority derived under r.3 the Food (Health) Authority
alone had the power to institute prosecution for an offence
under the Act and, therefore, he could not sub-delegate his
powers to launch the prosecution to the Food Inspector by
the Notification dated September 7, 1972. This preliminary
objection was rejected by the Magistrate and he proceeded to
frame charges against the appellants. They thereupon moved
the High Court under s. 482 of the Code of Criminal
Procedure, 1973 for quashing of the aforesaid order taking
cognizance of the offence and consequent framing of the
charge, but the High Court dismissed the petition in limine.
On the question whether the Food Inspector, Faridkot
was competent to lodge a complaint against the appellants
under s. 20(1) of the Act by virtue of the delegation of
powers by the Food (Health) Authority, Punjab under the
Notification dated September 7, 1972 issued by him under r.
3 of the Prevention of Food Adulteration (Punjab) Rules,
1958.
Allowing the appeal by special leave, the Court,
^
HELD 1. The notification dated September 7, 1972 issued
by the Food (Health) Authority is ultra vires the Food
(Health) Authority insofar as he purported to delegate his
powers to institute prosecutions for an offence under the
Act under s. 20(1) to the Food Inspector,
963
Faridkot. The latter was, therefore, not competent to lodge
the complaint against the appellants. [972B-C]
2.1 Where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at
all. Other modes of performance are necessarily forbidden.
The intention of the Legislature in enacting s. 20(1) was to
confer power on the authority specified therein, which power
had to be exercised in the manner provided and not
otherwise. [970E-F]
2.2 The use of the negative words in s. 20(1) that ’no
prosecution for an offence under this Act. . . shall be
instituted except by, or with the written consent of plainly
make the requirements of the section imperative. They
inhibit insufficient of prosecutions for an offence under
the Act except where it is done by the Central Government or
the State Government or a person authorised in that behalf
by the Central Government or the State Government, or where
the prosecution is instituted with the written consent of
any of the four specified categories of authorities or
persons. If either of these two conditions is satisfied,
there would be sufficient authority for the institution of
such a prosecution for an offence under the Act. [970C;
969G-H; 970A-B]
Craies on Statute Law, 6th edn., p. 263 referred to.
3. The use of the expression ’in this behalf’ in s.
20(1) shows that the delegation of such power by the Central
Government or the State Government by general or special
order must be for a specific purpose, to authorise a
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designated person to institute such prosecutions on their
behalf. The terms of the section do not postulate further
delegation of powers by the person 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 public interest. [966E; 971A-B]
4.1. Rules framed pursuant to a power conferred by a
statute cannot proceed or go against the specific provisions
of the statute. The maxim delegatus non potest delegare
merely indicates that sub-delegation of powers is not
normally allowable but the Legislature can always provide
for it. The provision contained in s. 24(2) (e) of the Act
enables the State Government to frame a rule for delegation
of powers and functions under the Act but it clearly does
not envisage any sub-delegation. [971C,D]
964
4.2. Rule 3 of the Prevention of Food Adulteration
(Punjab) Rules, 1958 must, therefore, he read subject to the
provisions contained in s. 20(l) of the Prevention of Food
Adulteration Act, 1954. It cannot be construed to authorise
sub-delegation of powers by the Food (Health) Authority,
Punjab to the Food Inspector. So construed, it means that in
the instant case, the Food (Health) Authority was the person
authorised by the State Government to initiate prosecutions.
[971G-H; 972A]
4.3 It was open to the State Government to have issued
a notification under s. 20(1) conferring authority on the
Food Inspector to launch prosecutions for an offence under
the Act, as is the practice in other States. The Food
Inspector having been authorised by the Director of Health
Service and not the State Government, he was not a person
who had been authorised by any general or special order
issued by the Central Government or the State Governments.
[969G-H]
State of Bombay v. Parshottam Kanaiyalal, [1961] 1 SCR
458 & The Corporation of Calcutta v. Md. Omer Ali & Anr.,
[1976] 4 SCC 527 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
400 of 1986
From the Judgment and order dated 12.2.1986 of the
Punjab and Haryana High Court in Crl. Misc. Petn. No. 202-
M/86.
Dr. Y.S. Chitale, Ravinder Narain, D.N. Misra and P.K.
Ram for the Appellants.
H.K. Puri and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave directed against
the judgment and order of the Punjab & Haryana High Court
dated February 12, 1986 raises a question of some
importance. The question is whether the Food Inspector,
Faridkot was competent to lodge a complaint against the
appellants under s. 20(1) of the Act for commission of an
offence punishable under s. 16(1) (a) (ii) of the Prevention
of Food Adulteration Act, 1954 (for short ’the Act’) by
virtue of the delegation of powers by the Food (Health)
Authority, Punjab under notification dated September 7, 1972
purported to have been issued by him under r. 3 of the
Prevention of Food Adulteration (Punjab) Rules, 1958.
965
Put very shortly, the essential facts are these.
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Appellant No. 2, Messrs Food Specialities Limited is a
company incorporated under the Companies Act, 1956 engaged
in the business of manufacturing and selling various well-
known articles of food including New Maggi 2 minute noodles
with sweet sour taste-maker while appellant No. 1 A.K. Roy
is the Manager, Quality Controller of the Company. On
December 14, 1984 at about 3.30 p.m. the Food Inspector,
Faridkot purchased a sample of New Maggi Noodles from the
shop of a general merchant for purposes of analysis The
Public Analyst by his report dated January 17, 1985 opined
that the said article of food contains carmosine and sunset
yellow acid coal tar dye instead of caramel as described on
the label and was therefore both adulterated as well as
misbranded. He further opined that the label of the article
of food did not comply with the requirements of rr. 24 and
32 of the Prevention of Food Adulteration Rules, 1955
regarding the addition of extraneous colouring matter. On
February 1, 1985 the Food Inspector, Faridkot filed a
complaint against the general merchant as well as the
appellants for having committed an offence punishable under
s. 16(1) (a) (ii) of the Act for alleged violation of rr.
24, 28, 29 and 32 of the Prevention of Food Adulteration
Rules, 1955 by virtue of the delegation of powers by the
Food (Health) Authority under notification dated October 10,
1968 purported to have been issued by him under r. 3 of the
Prevention of Food Adulteration (Punjab) Rules, 1958.
During the course of the proceedings, the appellants
raised an objection inter alia that r. 3 of the Rules framed
by the State Government in purported exercise of powers
under s. 24(2) read with s. 20(1) of the Act, was ultra
vires the State Government and alternatively by virtue of
the authority derived under r. 3 of the said Rules, the Food
(Health) Authority alone had the power to initiate
prosecutions for an offence under the Act and therefore he
could not legally by the impugned notification sub-delegate
his powers to launch the prosecutions to the Food Inspector.
The learned Sub-Divisional Judicial Magistrate by his order
dated December 4, 1985 rejected the preliminary objection
raised as to the power of the Food Inspector to launch the
prosecution under s. 20(1) read with s. 9 of the Act, on the
ground that the State Government having delegated its powers
to the Food (Health) Authority by framing r.3 under s.
24(2)(e) of the Act, the Food (Health) Authority was
competent to issue the impugned notification and therefore
the complaint was validly lodged. The learned Sub-Divisional
Judicial Magistrate further proceeded to frame charges
against the appellants for having committed an offence
punishable
966
under s. 16(1) (a) (ii) of the Act. Thereafter, the
appellants moved the High Court by petition under s. 482 of
the Code of Criminal Procedure, 1973 for quashing the
impugned order passed by the learned Sub-Divisional Judicial
Magistrate taking cognizance of the offence and the
consequent framing of the charge by him. High Court did not
go into the question and dismissed the petition in limine,
It is argued on behalf of the appellants that as a
matter of construction the first part of s. 20(1) of the Act
makes it clear that a prosecution for offences under the Act
not being an offence under s. 14 or s. 14A, can be
instituted only by one of the following authorities, namely:
(i) the Central Government or the State Government, or (ii)
with the written consent of the Central Government or the
State Government, or (iii) a person authorised in this
behalf by a general or special order by the Central
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Government or the State Government, or (iv) with the written
consent of a person so authorised. It is urged that the
opening words of s. 20(1) ’No prosecution for an offence
under this Act ... shall be instituted except by’ being of a
negative character, the requirements of the section are
imperative and that a discretionary power must, in general,
by exercised by the authority to which it has been
committed. Emphasis is placed on the words ’in this behalf’
in the - second part of s. 20(1) of the Act for the
submission that the delegation of powers to launch a
prosecution by the Central Government or the State
Government, by general or special order, must be for a
specific purpose in that behalf viz. to authorise the
institution of prosecutions under the Act. It was
accordingly submitted that r. 3 of the Punjab Rules enables
the Food (Health) Authority to sub-delegate his power ’to
authorise the launching of a prosecution for an offence
under the Act’ to the Food Inspector, was ultra vires the
State Government and could not be sustained on the terms of
s. 24(2) (e) i.e. the general power of the State Government
under s. 24(2) (e) of delegation of its powers and functions
under the Act.
In reply, the learned counsel for the respondents
contends that r.3 is in the nature of a general order in
terms of s. 20(1) of the Act and therefore the State
Government has not only delegated its powers ’to launch a
prosecution for an offence under the Act’ under s. 20(1) to
the Food (Health) Authority i.e. the Director of Health
Services, Punjab but also under the said rule provision has
been made for further sub-delegation of his power to
authorise the launching of prosecutions under s . 20(1) to
the Food Inspectors.
In order to appreciate the contentions it is necessary
to refer to
967
the relevant provisions. Sub-s. (1) of s. 20 of the Act
which is material for our purposes, provides as follows:
"20(1). Cognizance and trial of offences-No
prosecution for an offence under this Act, not
being an offence under section 14 or section 14A
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."
Sub-s. (1) of s. 24 of the Act empowers the State Government
to frame rules after consultation with the Committee and
subject to the condition of previous publication, for the
purpose of giving effect to the provisions of the Act not
falling within the purview of s. 23. Sub-s. (2) thereof
provides that in particular and without prejudice to the
generality of the foregoing power, the State Government may
make rules for the purpose of giving effect to the
provisions of the Act in matters not falling within the
purview of s. 23. S. 24(2) (e) of the Act provides:
"24(2). In particular, and without prejudice to
the generality of the foregoing power, such rules
may-
(e) provide for the delegation of the powers
and functions conferred by this Act on the
State Government or the Food (Health)
Authority to subordinate authorities or to
local authorities. "
In exercise of the powers under s. 24(2) (e) of the Act, the
Punjab Government framed the Prevention of Food Adulteration
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(Punjab) Rules, 1958. R. 3 of the Rules reads as under:
"Rule 3-Power of Food (Health) Authority-The State
Government may, by an order in writing delegate
its powers to appoint Food Inspectors, to
authorise a person to institute prosecutions for
an offence under the Act and such other powers
exercisable by it under the Act as may be
specified in the order of the Food (Health)
Authority of the State of Punjab"
In accordance with r. 3, the State Government issued a
notification dated October 10, 1968 purporting to delegate
its powers and functions conferred by s. 20(1) of the Act
viz. to initiate prosecutions
968
for an offence under the Act, to the Food (Health)
Authority, to the effect:
"In pursuance of the provisions of rule 3 of the
Prevention of Food Adulteration (Punjab) Rules,
1958, the President of India is pleased to
delegate to the Food (Health) Authority its powers
of appointment of Food Inspectors - and to
authorise institution of prosecution for an
offence under the Prevention of Food Adulteration
Act, 1954. "
In terms of the aforesaid notification, the Food (Health)
Authority issued a notification dated September 7, 1972
authorising the Food Inspector, Faridkot to launch
prosecution under s. 20(1) for an offence under the Act, in
these terms:
"No. IV-I-Pb-72/7518- 2(i)
In exercise of the powers conferred by
Section 9 of the Prevention of Food Adulteration
Act, 1954 (Act No. 37 of 1954) read with Rule 8 of
the Prevention of Food Adulteration Rules 1955 and
the powers delegated vide Punjab Government
Notification No. 5575-HB/L-68/29659 dated 10th
October, 1968, Shri Jagrup Singh is hereby
appointed as Government Food Inspector for all the
local areas in the District, in which the official
is posted as Government Food Inspector.
In exercise of powers conferred by Section 20
of the Prevention of Food Adulteration Act, 1954
(Act No. 37 of 1954) read with Punjab Government
Notification No.5575 2HBI 1/68/29659 dated 10th
October, 1968 the Director, Health Services,
Punjab also authorises the above mentioned Food
Inspector to institute prosecution against the
persons committing offences under the said Act
within the limits of local areas."
In this appeal, two main questions arise, namely: (i)
Whether r. 3 of the Prevention of Food Adulteration (Punjab)
Rules, 1958 framed under s. 24(2) (e) of the Act being
contrary to the legislative mandate contained in s. 20(1) of
the Act, was ultra vires the State Government and therefore
the impugned notification issued by the State Government
dated October 10, 1968 purporting to delegate its powers
under s. 20(1) to the Food (Health) Authority viz. to
authorise the institution
969
of prosecutions for an offence under the Act, was liable to
be struck down. Consequently, whether the impugned
notification dated September 7, 1972 issued by the Food
(Health) Authority authorising the Food Inspector, Faridkot
to institute such prosecutions was illegal, bad in law and
void ab initio. (ii) Even if r. 3 of the said Rules could be
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regarded as a general order issued by the State Government
in terms r of s. 20(1) of the Act authorising the Food
(Health) Authority to launch prosecutions for an offence
under the Act by the framing of a rule under s. 24(2) (e) of
the Act, whether the Food (Health) Authority by the impugned
notification dated September 7, 1972 could, in his turn,
sub-delegate his powers to the Food Inspector, Faridkot. The
ultimate question is whether the terms of s. 20(1) of the
Act do not postulate further delegation by the person
authorised to institute prosecutions for an offence under
the Act; he can only give his written consent to such
prosecution.
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. The Food Inspector had been conferred powers of
the State Government under s. 20(l) of the Act viz. to
initiate prosecutions for an offence under the Act, by the
Food (Health) Authority i.e. the Director of Health
Services. A mere perusal of the impugned notification dated
September 7,1972 makes it manifest that it was the Director
of Health Services and not the State Government who had
authorised the Food Inspector to launch prosecutions for an
offence under the Act. It is therefore clear that the Food
Inspector is not a person who has been authorised by any
general or special order issued by the Central Government or
the State Government. There would be no problem if the State
Government were to issue a notification under s. 20(l) of
the Act conferring authority on the Food Inspector, Faridkot
under s. 20(l) to launch prosecutions for an offence under
the Act as is the practice in the other States.
A careful analysis of the language of s. 20(l) of the
Act clearly shows that it inhibits institution of
prosecutions for an offence under the Act except on
fulfillment of one or the other or the two conditions.
Either the prosecutions must be instituted by the Central
Government or the State Government or a person authorised in
that behalf by the Central Government or the State
Government, or the prosecutions
970
should be instituted with the written consent of any of the
four specified categories of authorities or persons. If
either of these two conditions is satisfied, there would be
sufficient authority for the institution of such a
prosecution for an offence under the Act. The provision
contained in s. 20(1) of the Act does not contemplate the
institution of a prosecution by any person other than those
designated. The terms of s. 20 (1) do not envisage further
delegation of powers by the person authorised, except that
such prosecution may be instituted with the written consent
of the Central Government or the State Government or the
person authorised. The use of the negative words in s. 20(1)
"No prosecution for an offence under this Act .. shall be
instituted except by or with the written consent of" plainly
make the requirements of the section imperative. That
conclusion of ours must necessarily follow from the well-
known rule of construction of inference to be drawn from the
negative language used in a statute stated by Craies on
Statute Law, 6th edn., p. 263 in his own terse language:
"If the requirements of a statute which prescribe
the manner in which something is to be done are
expressed in negative language, that is to say, if
the statute enacts that it shall be done in such a
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manner and in no other manner, it has been laid
down that those requirements are in all cases
absolute, and that neglect to attend to them will
invalidate the whole proceeding."
Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all. Other
modes of performance are necessarily forbidden. The
intention of the Legislature in enacting s. 20(1) was to
confer a power on the authorities specified therein which
power had to be exercised in the manner provided and not
otherwise.
The first part of s. 20(1) of the Act lays down the
manner of launching prosecutions for an offence under the
Act, not being an offence under s. 14 or s. 14A. The second
part provides for delegation of powers by the Central
Government or the State Government. It enables that
prosecutions for an offence under the Act can also be
instituted with the written consent of the Central
Government or the State Government or by a person authorised
in that behalf, by a general or special order issued by the
Central Government or the State 3 Government. The use of the
words ’in this behalf’ in s. 20(1) of the Act shows that the
delegation of such power by the Central Government or
971
the State Government by general or special order must be for
a specific purpose, to authorise a designated person to
institute such prosecutions on their behalf. The terms of s.
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 the case of statutory powers the important question
is whether on a true construction of the Act, it is intended
that a power conferred upon A may be exercised on A’s
authority by B. The maxim delegatus non potest delegare
merely indicates that this is not normally allowable but the
Legislature can always provide for sub-delegation of powers.
The provision contained in ss. 24(2) (e) enables the State
Government to frame a rule for delegation of powers and
functions under the Act but it clearly does not envisage any
sub-delegation. That apart, a rule framed under s. 24(2) (e)
can only provide for delegation of minor administrative
functions e.g. appointment of Food Inspectors, Food (Health)
Authority etc. In the case of important executive functions
like the one contained in s. 20(1) of the Act to authorise
launching of prosecutions for an offence under the Act which
is in the nature of a safeguard, the Courts may be disposed
to construe general powers of delegation restrictively.
Keeping in view the language of s. 20(1) and 24(2) (e) of
the Act, r. 3 of the Punjab Rules can be treated to be a
general order issued by the State Government to authorise
the Food (Health) Authority i.e. the Director of Health
Services to institute prosecutions for an offence under the
Act. Unfortunately, the draftsmen of r. 3 more or less
employed the language of s. 20(1) of the Act. If r. 3 were
to be literally interpreted, the words "to authorise the
launching of prosecutions" may lead to the consequence that
the Food (Health) Authority who had been delegated the power
of the State Government under s. 20(1) of the Act could, in
his turn, sub-delegate his powers to the Food Inspector.
Such a consequence is not envisaged by s. 20(1) of the Act.
It is well-settled that rules framed pursuant to a power
conferred by a statute cannot proceed or go against the
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specific provisions of the statute. It must therefore follow
as a logical consequence that r. 3 of the Prevention of Food
Adulteration (Punjab) Rules, 1958 must be read subject to
the provisions contained in s. 20(1) of the Prevention of
Food Adulteration Act, 1954 and cannot be construed to
authorise sub-delegation of powers by the Food (Health)
Authority, Punjab to the Food Inspector, Faridkot. If so
construed, as it must, it would mean that the Food (Health)
Authority was the
972
person authorised by the State Government to initiate
prosecutions. It was also permissible for the Food (Health)
Authority being the person authorised under s. 20(1) of the
Act to give his written consent for the institution of such
prosecutions by the Food Inspector, Faridkot as laid down by
this Court in State of Bombay v. Parshottam Kanaiyalal,
[1961] 1 SCR 458 and The Corporation of Calcutta v. Md. Omer
Ali & Anr., [1976] 4 SCC 527.
In the premises, the impugned notification dated
September 7, 1972 issued by the Food (Health) Authority must
be declared as ultra vires the Food (Health) Authority
insofar as the purported to delegate his powers to institute
prosecutions for an offence under the Act under s. 20(1) to
the Food Inspector, Faridkot. It must accordingly follow
that the Food Inspector, Faridkot was not competent to lodge
the complaint against the appellants for having committed an
offence punishable under s. 16(1) (a) (ii) read with s. 9 of
the Prevention of Food Adulteration Act, 1954.
In the result, the appeal must succeed and is allowed.
The judgment and order passed by the High Court and that of
the Sub Divisional Judicial Magistrate, Moga are set aside.
P.S.S. Appeal allowed.
973