Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
CHITTARANJAN DAS
Vs.
RESPONDENT:
THE STATE OF ORISSA
DATE OF JUDGMENT18/09/1973
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
ALAGIRISWAMI, A.
CITATION:
1973 AIR 2708 1974 SCR (1) 656
1974 SCC (3) 383
ACT:
Food Adulteration Act (37 of 1954) s. 20(1)-Person
authorised to give written consent for prosecution for
offence under the Act-Whether the authority should relate to
specific offence or could be general.
HEADNOTE:
Section 20(1) of the Food Adulteration Act, 1954, as it
stood before its amendment by Act 49 of 1964 provided that
no prosecution for an offence under the 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 Government or a local authority.
On the written consent of the Superintendent of Police,
Vigilance, who was authorised to give written consent for
instituting prosecutions for offences, under the Act, the
appellant was prosecuted and convicted for an offence under
s. 16 (1) (a) of the Act. It was contended on his behalf
that while it was permissible under the section, after its
amendment by Act 49 of 1964, to issue such general
notification authorising a person to give written consent,
under the section as it stood before the amendment, the
authority should be in respect of a specified individual
offence.
Dismissing the appeal,
HELD : There is nothing in the language of the section which
makes it imperative to specify a particular offence in the
order authorising a person to give consent to the
institution of prosecution. The legislature had a two fold
object in enacting s. 20 (1) (a) to prevent institution of
prosecutions for offences under the Act except with the
written consent of the authorities mentioned in the section,
and (b) 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. In case the
authority conferred by the State Government or local
authority could not be general but had to relate to an
individual offence the very purpose of the section would be
defeated, for then, it would become necessary for the State
Government or local authority fast to authorise a person to
give written consent in respect of an individual case and
thereafter for the person authorised to give written
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
consent, so that what could be done in one step by the State
Government or local authority would have to be done in two
steps.
The words ’in this behalf’ indicate that the authority
conferred by the State Government or local authority upon a
person should relate to the giving of written consent for
the institution of prosecution for offences under the Act
and not that the authority conferred must relate to some
specified individual offence. The amended section also
contains those words, and must obviously carry the same
meaning. If the interpretation sought to be placed upon
these words is accepted no general authority can be
conferred even under s. 20(1) even as amended , and the
words ’by general or special order’ in the amended section
would become meaningless and lose all significance. The
amendment bad only made more clear what was already
contemplated by the section. [659G--661B]
Corporation of Madras v. Arumagham. AJ.R. 1966. Madras
194, Laxman Sitaram Pai & Anr. v. The State of Mysore,
A.I.R. 1967 Mysore 33 and Public Prosecutor v. Thatha Rao &
Ors., A.I.R. 1968 A.P. 17, approved.
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.
657
The Judgment of the Court was delivered by
KHANNA, J. Chittaranjan Das appellant was convicted by
Magistrate First Class Cuttack under section 16(1) (a) of
the Prevention 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. 50,0 or in default to undergo
rigorous imprisonment for a further period of six weeks.
Appeal filed by the appellant was, dismissed by the Addi-
tional 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 Inspector disclosed his identity to
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
Inspector 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 to 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
accused. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
accused has been mentioned in the Judgments of the trial
magistrate as well as those of the Additional Sessions Judge
and the High Court to be March 14, 1964. This date was
wrong because on reference to the record 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 but 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 by 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 by the Food
Inspector had been taken out of the frying Dan 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 by
the Superintendent of Police, Vigilance for the prosecution
of the accused was not in conformity with section 20 of the
Act as the authority
658
contemplated by that section must be in respect of each
individual case and a general authority given 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 behalf 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 respect
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 permitted the appellant to agitate it before us in
this Court.
The main contention which has been advanced in appeal before
us 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 Government or a local
authority.’
On December 16, 1964 a notification was issued by the Orissa
Government authorising, inter alia, the Superintendent of
Police Cuttack Vigilance Division to give written consent
for instituting prosecutionfor offences under the Act
within the local limits of CuttackMunicipality. The
notification reads as under:
HEALTH DEPARTMENT
NOTIFICATION
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
The 16th December, 1964
"No. 25485-H.-In 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 Government do hereby
authorise the following officers of the
Political 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
659
respect of cases detected by the Food
Inspectors attached to the concerned Vigilance
Divisions:-
Name of officer Local Limits
Cuttack Municipality
(1) Superintendent of Police’.
Cuttack Vigilance Division
By order of the Governor
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 amending Act was in section 20 of the
Act. As a result of 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 authorised in this
behalf, by general or special order, by the
Central Government or the State Government or
a local authority;"
The 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 counsel, essential under section 20, as it stood
before the amendment, that the authority should be in
respect of some specified individual offence. As
notification dated December 16, 1964 was issued before 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 offenses under the Act committed within the
local limits of Cuttack Municipality, the said notification,
it is urged was not in accordance with law.
As against the above, Mr. Chatterjee on behalf of the State
has argued that there is no infirmity in the notification
dated December 16, 1964 and such a notification could have
been validly issued 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 above that the
short question which arises for consideration is whether it
is permissible for the State Government or local authority
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 offenses under the Act
without mentioning a specified individual offence. We have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
reproduced
660
above section 20, as it stood before the amendment, and we
find nothing in its language which makes it imperative to
specify a particular offence in the order authorising a
person to give consent to the institution of prosecution.
The words "in this behalf" hi the above provision, to which
our attention his 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 offenses under the Act. It
is difficult 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
offenses under the Act but must relate to some specified
individual offence. If the interpretation sought to be
placed upon the words "in this behalf" on behalf of the
appellant were to be accepted, in such an event no general
authority can be conferred even under sub-section (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 would
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 offenses
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 local 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.
Perusal 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 offenses under
the Act unless written consent to the. institution of such
prosecutions was given by the State Government 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 it,,,, mind and dealing- with each
individual case of prosecution under the Act. Provision was
accordingly made to 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
661
State Government or local authority 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 authority first to authorise a
person to give written consent in respect of art individual
case of prosecution and thereafter for the person authorised
to pass another order for giving the written consent. The
result would be that what could be done in one step by the
State Government 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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 contemplated 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 offenses. The amendment made in 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(2) and the Andhra
Pradesh High Court in the case of Public Prosecutor v.
Thatha Rao &Ors.(8) 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. Appeal dismissed,
(1) A. I. R. 1966 Madras 194.
(2) A. I. R. 1967 Mysore 33.
(3) A. I. R. 1968 A. P. 17.
662