Judgment:
R.K. Dash, J.
1. The petitioner (hereinafter referred to as 'the accused') assails the order of conviction under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'Act') and sentence of one year rigorous imprisonment and fine of Rs. 2.000/-. in default to undergo rigorous imprisonment for a further period of six months recorded by the learned Judicial Magistrate. First Class, Cuttack, and confirmed by the appellate Court.
2. Shortly put, the prosecution case is that on 20-3-1986 at about 4 p.m. the Food Inspector, Cuttack Municipality (PW 1) inspected the business premises of the accused situated at Malgodown, Cuttack, and having suspected 'Arhar dal' an article of food kept for sale for human consumption, to be adulterated, made a statutory purchase of 600 grams, divided the same into three equal parts, kept each part in clean, dry and empty glass bottles properly packed and sealed the same and sent one of the sample bottles to the Public Analyst for examination and on receipt of the report from the Analyst that the 'Arhar dal' was adulterated, launched prosecution after having obtained written consent as required under the Act. To substantiate the charge the prosecution examined three witnesses including the Food Inspector.
3. The accused when examined Under Section 313, Cr PC admitted taking of sample of 'Arhar dal' by the Food Inspector, PW 1 from his business premises. He however denied the rest part of the prosecution case that the sample of 'Arhar dal' was adulterated and that the Public Analyst's report on which reliance was heavily placed by the prosecution was a never supplied to him.
4. Learned trial Court on consideration of the available evidence accepted the prosecution case and consequently recorded the verdict against the accused. Feeling aggrieved, the accused preferred appeal and the learned Additional Sessions Judge, Cuttack, on reappraisal of the evidence concurred with the ultimate conclusion and findings recorded by the trial Court.
5. Learned counsel eppearing for the accused while assailing the judgments of both the Courts below, raised two-fold contentions :
(1) That 'sanction' accorded by the Chief District . Medical Officer to prosecute the accused was not in accordance with the statutory provision of Section 20 of the Act, inasmuch as the Chief District Medical Officer did not apply his mind to ascertain whether a prime facie case existed against the accused for being put up for trial and therefore, the sanction being bad in law, the whole prosecution case was vitiated; and
(2) That it was obligatory of the prosecution to serve a copy of the Analyst's report upon the accused as envisged under Section 13(2) of the Act and there being no acceptable evidence to prove that copy thereof had been supplied to the accused for affording him an opportunity to challenge its correctness, the order of conviction and sentence is bad in law.
Learned counsel appearing for the complainant-opposite party on the other hand, contended that it does appear from the evidence on record that there was infraction of the mandatory provisions of the Act and findings of both the Courts below being based on appreciation of evidence and the law involved, this Court sitting in revision should not disturb the same.
6. Coming to the first submission as to the validity of consent, at the outset it is necessary to refer to relevant portion of Section 20 of the Act which reads thus :
'20. Cognizance and trial of offences--(1) 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 n; Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government; xx xx xx.'
A plain reading of the section clearly indicates the legislative intention that the prosecution for offence except those covered under Section 14 and 14A of the Act can be instituted by or with the consent of the authority or person authorised in that behalf. The question, therefore arises whether the authority should make an indepth analysis of the relevant materials and documents to arrive at a conclusion about commission of the offence before according consent. The consistent view of this Court is that consent Under Section 20 of the Act being not an empty formality the authority should apply its mind for satisfaction about existence of a prima facie case. (See Jagabandhu Sahu v. Food Inspector, Puri Municipality : 1973 (2) CWR 1556 ; K. C. Anjanayalu v. Chairman, Puri Municipality : AIR 1983 Ori. 158; Gourahari Panda v. Paramananda Agarwalla and Anr. : 1989 (I) OLR 545 ; Amal Kumar Prathihari v. State of Orissa : 1994 (|) OLR 441 ; and Chandrama Singh v. State of Orissa : (1994) 7 OCR 46). In Gourahari Panda (supra). Amal Kumar Prathihari {supra) and Chandrama Singh {supra), the Court while dealing with the question posed, referred to the written consent in detail. It would appear in all these three cases that the authority while according sanction had perused the Food Inspector's report and the relevant documents, but because the written consent did not disclose the nature of relevant documents, more particularly the Public Analyst's report having been considered, the consent orders were held to be defective which ultimately vitiated the trial. In Gourahari Panda (supra) the Court went a step further, saying that when it was not clear from the evidence whether there had been proper application of mind before according sanction, the prosecution should have examined the concerned sanctioning authority. To appreciate the law involved, it would be apposite to refer to recent decision of the Supreme Court in the case of Suresh H. Rajput, etc. v. Bhartiban Pravianbhai Soni and Ors., etc.: (1996) 1 SCC 229, where it was held that the authority can give its consent in writing in terms of Section 20 of the Act when it is satisfied that prima facie case exists in the facts of a particular case tor laying the prosecution. In the said case sanction to launch prosecution being a cyclostited order, learned Magistrate held that the authority did not apply its mind to the facts constituting the offence and therefore, the grant of sanction was invalid in law. The said finding also found favour with the High Court. The matter then came to the apex Court and their Lordships while not agreeing with the aforesaid view observed that it was not for the sanctioning authority to weigh pros and cons of the case before granting sanction. The Court also relied upon an earlier' decision in the case of State of Bihar v. P. P. Sharma : (1992) Supp. 1 SCC 222, where the effect of sanction under Section 197, of the Code of Criminal Procedure was considered.
7. There is a pari materia provision in the Prevention of Corruption Act, 988 for according sanction before laying prosecution. Section 19 envisages that no Court shall take cognizance of the offence punishable under particular provisions of the said Act against a public servant without previous sanction of the Central or State Government or the authority competent to remove the concerned Government servant. The object of the provision for sanction is to afford reasonable protection to the public servant in the discharge of his official functions. Thus existence of a valid sanction is the prerequisite to taking cognizance of the offence alleged to have been committed by the public servant. Therefore, facts constituting the offence should be placed before the authority for his satisfaction to accord sanction for laying prosecution. The question then arises whether it is incumbent upon the sanctioning authority to specifically indicate in the order that he has personally scrutinised the relevant file/documents for his subjective satisfaction that prima facie case has been made but for according sanction. The Bombay High Court in the case of State of Maharashtra v. Iswar Paraji Kalpatri : 1995 (4) Crimes 769, answered the question in the affirmative. Disagreeing with the aforesaid view the apex Court held that law did not require a statement being made while according sanction that the officer signing the order had personally scrutinised the file and had arrived at the required satisfaction. While appreciating the facts of that case, the Court referred to the impugned sanction order where it was categorically stated :
'...and whereas the Government of Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that the accused person should be prosecuted in the Court of competent jurisdiction for the said offence...'
On a scrutiny of the aforesaid sanction order, their Lordships held that there had been application of mind and the relevant materials had been .': examined by the concerned officer before according sanction.
8. Further reference may be made to an earlier decision in the case of State of Bihar v. P. P. Sharma (supra) where almost a similar question about validity of sanction to prosecute a public servant was raised.. In the said case the accused persons were public servants and of them one was an I. A. S. officer. The offence alleged against them was punishable under Section 409 and some other sections of the Indian Penal Code. Prosecution was launched against them after having obtained sanction as required under Section 197, Cr PC. On approach being made by the accused persons by filing writ application, the Patna High Court quashed the FIR and the criminal proceeding initiated against them. Feeling aggrieved by the said order, the State approached the Supreme Court. Various contentions were raised of which one related to sanction accorded by the Government under Section 197. CrPC. It was urged that sanction was vitiated due to non-application of mind on the part of the concerned authority. In the opinion of his Lordship Kuldip Singh. J. Section 197, Cr PC does not require the sanction to be in any particular form. However, if the facts constituting the offence are not shown on the face of the sanction, and validity of the sanction is challenged by the defence, it would be open to the prosecution to prove before the Court that those facts were placed before the sanctioning authority. Concuning with his views, his Lordship K. Ramaswamy, J. in a separate judgment in paragraph 67 observed:
'It is equally well-settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of prima facie evidence of the commission of the offence is only a precondition to grant or refuse to grant sanction. When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts haven been regularly enforced. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of prosecution to produce necessary record to establish that after application of mind and consideration thereof the subject to grant or refusal to grant sanction was made by the appropriate authority...'
9. From a reading of the decision of the apex Court in Kalpatri (supra) and P. P. Sharma (supra) it would thus appear that if the order of sanction shows that there has been application of mind to the material facts constituting the offence, it matters little if the sanctioning authority has not made specific statement to that effect in the order itself. Presumption under Section 114(e) of the Evidence Act that official acts have been regularly performed is raised in favour of the order of sanction. So, if the accused challenges the validity of the said order, heavy burden Iies upon him to rebut the presumption. Once he discharges that burden, then it would be for the prosecution to satisfy the Court by producing necessary records that there had been application of mind by the authority concerned before granting sanction. Where validity of the sanction is not questioned during the course of trial, the accused would be precluded from raising the same for the first time at any subsequent stage of the proceeding since the prosecution does not have the opportunity to bring in evidence the necessary records to satisfy the Court that sanction has been given after due application of mind to the material facts.
10. Written consent Under Section 20 of the Act and sanction either under Section 197, Cr PC or Section 19 of the Prevention of Corruption Act though are contextually different, the intended purpose of the Legislature for having such provision in the statutes is almost same and similar. In Mohammed Yakub Khan v State of Orissa : (1992) 5 OCR 54, a Division Bench of this Court held that though there is no marked distinction between the two expressions, but in the case of sanction it requires indepth and critical analysis of the materials to come to a conclusion about commission of the offence, whereas in the case of. written consent as required under the Act, Public Analyst's report may provide the basis for deciding the question of giving consent. Having so held, the Court approved the earlier Single Bench decision in the case of Gaurahari Panda (supra) and observed that consent required to be given is not an empty formality and there has to be application of mind and satisfaction has to be reached about existence of a prima facie case. The same view has been reiterated in a later Single Bench decision in the case of Amal Kumar Prathihari (supra) where the Court held that when the sanction order does not disclose as to what documents were referred to by the sanctioning authority or when any document was not enclosed with the prosecution report or when there is no evidence to show that there was any material placed before the sanctioning authority or the same was indicated in the prosecution report, the requirement of Section 20 of the Act not being an empty formality, the prosecution is vitiated and bound to fail. The principles laid down in the aforesaid decisions of this Court are to be read and applied keeping in mind the dictum of the apex Court in P. P. Sharma (supra), and Suresh H. Rajput (supra). In the case in hand, it would be necessary to examine whether the consent accorded by the Chief District Medical Officer, Cuttack, is valid or not. Ext. 7, the consent order, is in a typed form where it is specifically indicated that the concerned authority had gone through the Public Analyst's report and other materials before giving consent to lay prosecution against the accused. In that view of the matter and keeping in mind the judicial pronouncements referred to above, I would hold that consent given by the Chief District Medical Officer, Cuttack was a valid consent.
11. The next limb of submission of the learned counsel appearing for the accused is that a copy of the Analyst's report had not been furnished to the accused and the provisions of Section 13(2) of the Act being mandatory in nature the conviction and sentence recorded against the accused cannot be sustained. The position of law is no more res Integra that Section 13(2) of the Act is mandatory and non-compliance thereof vitiates the trial. In the case in hand there is no clinching evidence that Public Analyst's report Ext. 8 had been supplied to the accused. A look at the aforesaid exhibit would indicate that the same was stated to have been sent to the accused by registered post, But PW 3, Despatcher of the office of the Chief District Medical Officer. Cuttack, when cross-examined, gave altogether a different story. According to him. Public Analyst's report had been served upon the accused through a Peon. Admittedly he has no personal knowledge about such service and the Peon who served Ext. 8 and obtained the receipt was not examined by the prosecution. In the circumstances. therefore, it is difficult to believe that the Public Analyst's report Ext. 8 had been supplied to the accused either by registered post or through a Peon of the office of the Chief District Medical Officer, Cuttack. So the mandatory provision of Section 13(2) of the Act having not been complied with, the ultimate finding of guilt recorded against the accused cannot be upheld.
12. In the result, the revision is allowed and consequently the order of conviction and sentence recorded by the trial Court and affirmed by the appellate Court are set aside.