Full Judgment Text
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CASE NO.:
Appeal (crl.) 449 of 2002
PETITIONER:
SHRI RANAJOY BOSE
Vs.
RESPONDENT:
SHRI A.B. ROY & ANR.
DATE OF JUDGMENT: 05/04/2002
BENCH:
D.P. Mohapatra & Brijesh Kumar
JUDGMENT:
D.P.MOHAPATRA,J.
Leave granted.
This appeal filed by the accused is directed against
the order passed by the High Court at Calcutta dismissing
the application filed by him under Section 482 of Code of
Criminal Procedure (’Crl. P.C.’ for short) and confirming
the order passed by the Senior Municipal Magistrate
declining to accept his prayer for discharge in Complaint
Case No.44-D of 1978. The application filed by the
appellant under Sections 245(2) and 245(3) Cr. P.C. for
discharge was dismissed by the learned Magistrate.
A criminal case was instituted against the appellant
and some others alleging the commission of the offence
punishable under Section 16(1) (a)(i) read with Section 7 of
the Prevention of Food Adulteration Act, 1954 (for short
’P.F.A. Act’), on the allegation that he was selling
adulterated tea leaves. The case of the prosecution was
that the Food Inspector inspected the shop/godown/
factory of M/s Brook Bond India Ltd. on 5.4.1978 and
collected some samples of tea Grade PD-1. The said
samples on analysis by the Public Analyst were found not
conforming to the prescribed standard in respect of crude
fibre content in the Tea and was found to be adulterated.
The complaint was filed against the appellant after
obtaining consent from the District Health officer IV (South
West), Municipal Corporation of Calcutta. The Learned
Magistrate on perusal of the complaint and the materials
produced by the complainant, took cognizance of the
offence under section 16(1)(a)(i) read with section 7 of the
P.F.A. Act and issued process against the accused persons
in May, 1978.
On consideration of the application filed by the
appellant and other accused persons for discharge from
prosecution, the learned Magistrate by the order passed on
25.08.1981 discharged the accused company M/s Brook
Bond India Limited and Shri P.K. Banerjee, the Manager of
the company from the prosecution but rejected the prayer
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of the appellant. The Revision Petition filed by the
appellant challenging the said order was dismissed by the
High Court by order dated 22.12.1986. The appellant filed
special leave petition, SLP(Crl.) 832/87 before this Court
challenging the order of the High Court. The said SLP was
later withdrawn by the appellant.
Thereafter the appellant filed an application under Sections 245(2) and 245(3) Cr.
P.C. on 2.2.95 seeking discharge from prosecution on the grounds of delay in concluding the
trial and want of a valid order giving consent for launching the prosecution against him. Th
e
learned Senior Municipal Magistrate rejected the application by the order dated 23.6.1995.
The appellant challenged the order by filing the application under Section 482 of Cr.P.C.
in
the High Court which was registered as C.R.R.No.1978 of 1995. The High Court by the order
dated 14.11.2000 dismissed the said petition with a direction for expeditious disposal of th
e
case by the trial court. Hence this appeal.
On 19.11.2001 when the case was taken up the
learned counsel appearing for the appellant submitted that
he will not be pressing the question of delay in trial of the
case. In view of the said order the only question that
remains for consideration relates to the validity or
otherwise of the order granting consent for the prosecution
against the appellant.
The main thrust of the submissions of learned
counsel for the appellant was that Dr. K.B.S. Chakraborty,
District Health Officer-IV, Local (Health) Authority who had
given consent for filing the complaint by the order dated
30.5.78 was not competent to accord such consent under
the P.F.A. Act. He placed strong reliance on the judgment
dated 14.2.1983, of the Calcutta High Court in the
Criminal Revision Nos. 1275-1276 of 1982 titled Rasiklal
Saxena vs. The State of West Bengal in which the High
Court took the view that the Health Officer Calcutta
Corporation was the only person competent to give consent
for filing a complaint under the P.F.A.Act and that the
District Health Officer-II and District Health Officer IV
have no such authority for the purpose. Elucidating the
point the learned counsel submitted that the Calcutta
Corporation is split up into different districts and the
District Health Officers are kept in-charge of each District;
there is another officer who is designated as Health Officer
of Calcutta Corporation. According to the learned counsel
it is the latter officer who is authorised for according
consent for prosecution under Section 20(1) of the P.F.A.
Act. The District Health Officers in-charge of different
Districts are not authorised for the purpose.
Per contra learned counsel appearing for the
Corporation contended that on a fair reading of the
relevant provisions of the P.F.A. Act the Calcutta
Municipal Act, 1951 and the notifications issued under
Section 20(1) of the P.F.A.Act it is clear that the District
Health Officers of the Calcutta Corporation are authorised
to give consent for filing complaints within their respective
areas. Referring to column-II of the notification
No.PII/213/3F-15/76 dated 25.1.1978 the learned counsel
contended that the Health Officer-in-charge of every
District of the Calcutta Corporation is authorised under
the notification to exercise the power of granting consent
for prosecution under Section 20(1). He further contended
that if it was the intention of the State Government that
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only the Health Officer of the Calcutta Corporation should
exercise the power of granting consent under Section 20(1)
then the entry in column-II of Item No.3 of the notification
which reads "the area comprised in every District or areas
added to the Calcutta Corporation" will be redundant.
Regarding the expression "Health Officer" in column-I of
item No.3 of the notification, learned counsel contended
that the words in singular includes the plural and vice
versa as provided in Section 13(2) of the General Clauses
Act, 1897.
It will be convenient to notice some statutory
provisions relevant for appreciating the point raised in the
case before dealing with the merit of the case.
In Section 2(vii) of the P.F.A. Act "local area" means
any area, whether urban or rural, declared by the Central
Government or the State Government by notification in the
Official Gazette, to be a local area for the purposes of this
Act. Under Section 2(viii) "local authority" means, a local
area which is (a) a municipality, the municipal board or
municipal corporation. In Section 2(viiia) the expression
"Local (Health) Authority" in relation to a local area is
defined to mean the Officer appointed by the Central
Government or the State Government, by notification in
the Official Gazette, to be in-charge of Health
administration in such area with such designation as may
be specified therein.
In Section 20 PFA Act provision is made regarding
cognizance and trial of offences which reads as follows:
"(1) No prosecution for an offence
under this Act, not being an offence
under Section 14 or Section 14-A 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 :
Provided that a prosecution for an
offence under this Act may be
instituted by a purchaser (or
recognized consumer association)
referred to in Section 12, (if he or it
produces) in Court a copy of the report
of the public analyst along with the
complaint."
In Section 76 of the Calcutta Municipal Act, 1951
(West Bengal Act XXXIII of 1951) (CM Act for short) it is
laid down that the State Government shall appoint a
person to be the Finance Officer and the Chief Accountant
of the Corporation and the Corporation shall appoint
proper persons to be the Chief Engineer, Health Officer
and the Secretary and may appoint one or more Deputy
Commissioners. It is relevant to state here that in the C.M.
Act neither the expression "Health Officer" nor "District
Health Officer" is defined.
The Government of West Bengal issued three
notifications on 25.1.1978 which are relevant for the
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purpose of the present case. By the Notification
No.PII/211/3F-15/76 dated 25.1.1978 issued in exercise
of the powers conferred by clause (vii) of Section 2 of the
P.F.A.Act and in supersession of all previous notifications
on the subject, the Governor has been pleased to declare
certain areas as local areas as mentioned in the Schedule
for the purposes of the P.F.A. Act. In clause 3 of the said
notification, it is stated that the area comprised in every
district or the area added to, the Calcutta Corporation will
be a local area as described in Schedule I to the C.M.Act.
In the notification No.PII/212/3F-15/76 dated
25.1.78 the Governor of West Bengal in exercise of power
conferred by clause (viii-a) of Section 2 of the P.F.A.Act has
appointed officers as mentioned in column I of the
Schedule as the Local (Health) Authority in relation to the
Local Areas declared in notification No.PII/211/3F-15/76
dated 25.1.78 each in column II of the said schedule to be
in charge of the Health Administration in such areas as
noted in column II of the said schedule. Against item
No.3(1)(v) therein it is stated that the Health Officer,
District No.IV of the Corporation of Calcutta shall be the
Local (Health) Authority in-charge of the areas comprised
within District No.IV of the Calcutta Corporation.
In another notification issued on 25.1.78
PII/213/3F-15/76 the Governor in exercise of power
conferred under sub-section (1) of Section 20 of the P.F.A.
Act and in supersession of the Department’s notification
dated 2nd July, 1976 appointed the authorised officers
specified in column I of the schedule in respect of the Local
Area specified in column II of the said schedule as the
authority for the purpose of sub-section (1) of Section 20.
Against item No.3 therein it has been stated "Health Officer
of the Corporation of Calcutta" in relation to the areas
comprised in every District of, or areas added to, the
Calcutta Corporation.
The question formulated earlier is to be considered in
the light of the statutory provisions and the notifications
applicable to the matter. As noted earlier, the main
contention of the learned counsel for the appellant is that
under the notification issued by the Governor of West
Bengal on 25.1.78 the Health Officer of the Corporation of
Calcutta is the only person authorised to grant consent for
launching prosecution under Section 20(1) of the P.F.A.
Act.
Considering the rival contentions raised by the
learned counsel appearing for the parties, we are of the
view that the contention raised by the learned counsel for
the Corporation is to be accepted. While issuing the
notifications if the intention of the authority was to vest
the power to accord consent for launching prosecution
under Section 20(1) of the P.F.A. Act, then it would have
been so stated in column-II against item No.3 of the
notification, ’the areas comprised in or areas added to, the
Calcutta Corporation’ instead of ’the areas comprised in
every District of the Calcutta Corporation’. If the entire
Corporation was to be taken as one unit for the purpose of
vesting power under Section 20(1) P.F.A. Act then
reference to every District was redundant. For
ascertaining the intention of the authority issuing the
notification the entry should be read in its entirety.
Construing a portion of the notification which will result in
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rendering the other portion redundant should be avoided.
The matter can also be viewed from another angle. If
the area of the Corporation has been split up into different
Districts for convenience of administration, then it is
reasonable to think that the State Government intended to
delegate the power under Section 20(1) of the PFA Act to
the Health Officers in-charge of the Districts. The
necessity to deal with matters relating to accord of
consent under Section 20(1) for launching prosecution
against persons allegedly involved in offences under the
P.F.A. Act is important keeping in view the menace of food
adulteration in society. Every effort should be made to
eradicate such a menace for the sake of a healthy society.
Therefore, the interpretation that each District Health
Officer is authorised to exercise the power under Section
20(1) to accord consent under Section 20(1) P.F.A. Act in
respect of the respective District in his charge appears to
us to be more rational and in keeping with the purpose of
delegation of the power of the State Government.
Coming to the decision of the Calcutta High Court in
Rasiklal Saxena vs. The State of West Bengal (supra) on
which strong reliance was placed by learned counsel for
the appellant, we find that the High Court has not properly
considered the notification No.PII/213/3F-15/76 dated
25.1.78 while holding that the District Health Officers have
no authority to grant consent for launching prosecution
under Section 20(1) of the P.F.A. Act. The decision is
erroneous and it is declared as no longer good law.
The High Court in the order under challenge did not
disturb the view taken in the earlier decision in Rasiklal
Saxena vs. The State of West Bengal (supra) and decided
the case against the appellant and in favour of the
Corporation applying the ’de facto doctrine’. It was fairly
stated by the learned counsel appearing for the
Corporation that the said doctrine has no application in
the case. If the authority who granted consent for
launching prosecution was not vested with such power
under the statute then question of applying the ’de facto
doctrine’ to the order passed by such authority does not
arise. However, as we have not accepted the contention
raised on behalf of the appellant on merits of the case and
have taken the view that the District Health Officer is
competent to pass the order granting consent for
prosecution, the order of dismissal of the Revision Petition
filed by the appellant is to be maintained. Therefore, the
appeal is dismissed though for reasons different from those
given in the impugned order.
.J.
(D.P.MOHAPATRA)
.J.
(BRIJESH KUMAR)
April 5 , 2002