ORDER
G. Sasidharan, J.
1. Proceedings in a criminal case in which the allegation is regarding the commission of the offences under the Prevention of Food Adulteration Act are sought to be quashed by one of the accused mainly on two grounds; one, non-compliance of the provision in Section 13(2) of the Act and two, not obtaining proper sanction for prosecution as envisaged in Section 20 of the Act before filing complaint in Court. Petitioner is the third accused in the case and the allegation against him and the other two accused is that they committed the offences under Section 2(1a)(m) read with Section 7(i)(v) and Appendix B.A. 25.02.01 punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act').
2. On 19.11.1996 at 11.15 a.m. the Food Inspector, Vellinizhy Grama Panchayat (Mannarkkad Circle), after observing necessary prescribed formalities, inspected the grocery shop in 7/491 where the first accused was doing business. According to the Food Inspector, the first accused told him that he was the licensee and salesman of the shop. On giving Form VI notice to him the Food Inspector obtained the counterfoil signed by him. On paying Rs. 100/- and on obtaining a cash receipt the Food Inspector purchased from the first accused one packet of mixed fruit chewing gum (chiclets) exhibited in the shop of the first accused for sale. Thereafter, he divided the chiclets purchased into three equal parts and on properly packing, sealing and labelling the same, one sample along with Form VII Memorandum was sent to the Public Analyst, Regional Analytical Laboratory, Kozhikode for Analysis. Remaining two parts of the sample were sent to the Local Health Authority, Vellinizhy Panchayat along with copies of Form VII Memorandum and specimen impressions of the seal used to seal the sample. The Public Analyst in Form III Report dated 24.12.1996 gave the opinion that the mixed fruit chewing gum does not conform to the standard prescribed for chewing gum under the Prevention of Food Adulteration Rules, 1955 and hence adulterated. According to the Food Inspector, the second accused is the stockist and distributor for the third accused. The Food Inspector, who is the first respondent in this petition, filed Annexure-I complaint in the Court of the Judicial Magistrate of the First Class, Ottapalam alleging commission of offences under the Act. According to the first respondent, the third accused, who is the petitioner, is the depot manager from whom the second accused obtained the adulterated chiclets. There is also statement in the complaint that the District Food Inspector, Palakkad informed the first respondent that there was no nomination under the Act for the Company.
3. First respondent gave the complaint to the Magistrate on 31st January, 1998 and the Magistrate returned the same to the Food Inspector with a direction to resubmit the same on or before 28th February, 1998. The complaint was returned by the Magistrate by sending the same by registered post with acknowledgment due. The Magistrate, while returning the complaint, said that Document No. 9 in the List of Documents was not produced and directed the complainant to produce the property separately and produce a copy of nomination regarding Accused Nos. 2 and 3. On 16thFebruary, 1998 the complaint was resubmitted in the Court of the Magistrate clarifying that Accused No. 2 is the distributor for Accused No. 3, the Depot Manager of the Company from whom Accused No. 2 and Accused No. 1 got the adulterated chiclets. The complainant also stated that the Company had not made any nomination before the District Food Inspector, Palakkad. The Magistrate again returned the complaint to the Food Inspector and on 26th February, 1998 the complaint was resubmitted with necessary corrections. At that time the complainant clarified that the third accused was not the Manager or Director of the Company but was only a stockist and distributor of food items of the Company.
4. The submission made by the learned counsel appearing for the petitioner is that notice under Section 13(2) of the Act was issued by the Food Inspector even before resubmitting the complaint on 26.21998 and that is violation of the mandatory provision in Section 13(2) of the Act. What the counsel would submit is that since the complaint filed in court on 31st January, 1998 was returned to the Food Inspector and it was finally resubmitted only on 26.2.1998 it cannot be said that the notice issued under Section 13(2) of the Act was after institution of the prosecution. Section 13(2) of the Act says that on receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, informing such person or persons that if they want, they may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. It is clear from the above provision that the copy of the report of the result of analysis has to be sent after the institution of prosecution. The purpose for which the copy of the result of the report of analysis is sent is for giving an opportunity to the person from whom the sample of article of food was taken to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. It is also necessary that the person to whom the copy of report of result of analysis is sent must be informed that such person, if he so desires, may make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
5. Before the amendment of the Act, what the section said was that three samples had to be taken by the Food Inspector and one sample had to be sent to the Public Analyst, another sample had to be given to the accused and the other sample had to be kept by the Food Inspector for the purposes of depositing the same in court. After getting the report of chemical analysis the prosecution had to be launched against the accused, if the report of chemical analysis said that the food article was adulterated. Section 13 as it stood before amendment, gave a right to the accused to make an application in court with a prayer to send the sample which was kept with him to the Central Food Laboratory and the court, after complying with all formalities with regard to the condition of the sample and the seal, had to send the same to the Central Food Laboratory. The report of Central Food Laboratory would override the report of the Public Analyst. After the amendment, the Food Inspector need not give a sample to the accused. One sample has to be sent to the Public Analyst for chemical analysis and the remaining two samples have to be sent to the Local (Health) Authority. As a result of the amendment, the two samples have to be kept by the Local (Health) Authority and hence there is the necessity of giving a notice at the time of sending the copy of the report of Public Analyst informing the accused of his right to get one of the samples kept by the Local (Health) Authority examined in the Central Food Laboratory and the Legislature made provision for that in the Act.
6. According to the petitioner, the copy of the report of the Public Analyst was despatched to him on 7th February, 1998 whereas the complaint was filed only on 26th February, 1998. The submission made by the learned counsel appearing for the petitioner is that there is breach of the mandatory provision contained in Section 13(2) of the Act inasmuch as the copy of the report of analysis was forwarded to the petitioner prior to the institution of the prosecution against the clear mandate in Section 13(2) that the copy of the report of the analysis has to be sent after the institution of prosecution. The submission is that even though the complaint was given in court at the first instance on 31st January, 1998 since the complaint was returned to the Food Inspector for curing defects it cannot be said that the prosecution was instituted on 31st January, 1998. It was on 26th February, 1998 that the complaint was resubmitted after curing the defects and according to the petitioner, only on 26th February, 1998 the prosecution was instituted and since the mandatory provision in Section 13(2) is that the copy of the report of the result of analysis has to be sent after institution of prosecution there is clear violation of the mandatory provision and for that reason alone the proceedings have to be quashed.
7. In Rameshwar Dayal v. State of U.P. (1996 SCC (Crl.) 75) the Supreme Court said that serious prejudice had been caused to the accused in the case which came up for consideration before that Court because of non-supply of the copy of the report of Public Analyst as required under Section 13(2) of the Act and on that ground the conviction and sentence were set aside. That was a case in which the report of the Public Analyst was not supplied to the accused as required under Section 13(2) of the Act. The Supreme Court said that the right to get one sample examined by the Central Food laboratory is a very valuable right given to an accused and if that right is denied to the accused, serious prejudice would be caused to him. That was a case in which admittedly the copy of the report of the result of analysis was not given to the accused. In the present case, the copy of the report of result of analysis was given to the accused and the complaint of the accused is that there is violation of the provision in Section 13(2) of the Act because the copy of the report of the result of the analysis was given to him even before institution of prosecution.
8. In State of Kerala v. K.C. John and Anr. (1978 (II) FAC) 275) this Courthad the occasion to consider about the result of violation of the provision in Section 13(2) ofthe Act. This Court said that the provision is mandatory and violation of the mandatory provision would result in deprivation of a valuable right conferred on the accused resulting in serious prejudice to him. That was a case in which the trial Court acquitted the accused for the reason that there was no sale of the food article to the Food Inspector. Appeal was filed before this Court against the order of acquittal and this Court found that there was sale of food article to the Food Inspector and that the finding by the trial Court that there was no sale, was not correct. But on taking note of the fact that there was violation of mandatory provision in Section 13(2) of the Act this Court sustained the order of acquittal. That was a case in which admittedly the provisions of Section 13(2) have not been complied with and this Court, on taking note of that fact, said that the right conferred on accused under Section 13(2) of the Act is a very valuable right and the provisions contained therein are mandatory in nature.'
9. The High Court of Madras in the decision in State v. Panchanadham (1982 Crl. L.J.I 11) had the occasion to consider the question whether the provision in Section 13(2) was mandatory in nature. That was a case in which the copy of the report of the result of analysis along with notice under Section 13(2) of the Act was given to the accused before filing of the complaint in court. The notice under Section 13(2) of the Act along with the copy of the report of result of analysis was issued to the accused on 7.11.1976 and the complaint was filed in court thereafter on 10.11.1976. The High Court of Madras held that there was violation of mandatory provision of Section 13(2) of the Act.
10. In this context it is necessary to consider what is meant by 'institution of prosecution' as envisaged in Section 13(2) of the Act. According to the learned counsel appearing for the petitioner, the institution of prosecution was on the date on which the complaint was filed in court after curing the defect. The date on which the complaint was filed originally, according to the learned counsel appearing for the petitioner, cannot be said to be the date on which prosecution was instituted for the reason that the complaint was returned for resubmitting the same after curing defect. The learned counsel appearing for the petitioner placed reliance on the decision in Bhimappa Bassappa v. Laxman Shivarayappa (AIR 1970 SC 1153). In the above decision, the Supreme Court, on examining what is meant by 'instituted', referred to Section 190 of the Criminal Procedure Code and said that there are three different ways in which cognizance is taken by Magistrates of offences. Under that section, a Magistrate can take cognizance of an offence upon receiving a complaint of the facts which constitute an offence, upon a report in writing of such facts made by any police officer and upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. When it is said that cognizance can be taken upon information received from any person other than a police officer that refers to a case in which cognizance is taken upon a complaint of facts constituting an offence.
11. The word 'complaint' is defined in Section 2(d) of the Criminal Procedure Code and it means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report. The attempt made by the learned counsel appearing for the petitioner on citing the above decision of the Supreme Court is to maintain that institution of prosecution is at the time of taking cognizance of the offence. The question which was agitated before the Supreme Court in the above decision was regarding the right of a person who was the complainant to file an application in the High Court for special leave to appeal against acquittal of the accused. An application for special leave for appeal filed against the order of acquittal was dismissed by the High Court by saying that the appellant had no locus standi to invoke Section 417(3) of the old Code of Criminal Procedure. The order of the High Court was challenged in the Supreme Court. The appellant before the High Court contended that he had a right to move the High Court for special leave as the order of acquittal was passed in a case instituted upon his complaint. It was in that context that the Supreme Court considered the question what was meant by 'instituted'. In that case police filed charge-sheet against two accused and Bhimappa, the appellant before the Supreme Court, filed a complaint in which he said that in addition to the two persons mentioned in the charge-sheet, another person also participated in the commission of the offences. The Supreme Court, on taking into consideration the fact that Bhimappa was entitled to have a hearing of his petition for special leave because he was the complainant in respect of one of the accused, held that he must be given an opportunity of hearing. The Supreme Court said that whether Bhimappa could ask for leave against the additional accused whose name was mentioned in the complaint filed by him alone or against other two accused also, was a point which had to be decided by the High Court. In that decision, even though the meaning of the term 'instituted' was considered, that was done in the context of the dispute which arose as to whether the criminal case was instituted on a complaint made by a particular person. The Supreme Court did not consider in that case the point of time when prosecution can be said to be instituted.
12. Code of Criminal Procedure does not contain definition of the term 'institution of a case'. In Madhavan Nair v. Gopala Panicker (AIR 1969 Kerala 97) a learned Judge of this Court held that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. That was a case in which a private complaint was filed in the court of the Magistrate and the Magistrate sent the complaint under Section 156(3) of the Code of Criminal Procedure to the police for investigation. After investigation the police filed final report and when the case came up for trial objection was raised that the Public Prosecutor should not conduct the prosecution and the complainant must make his own arrangements for the prosecution of the case. The Magistrate decided that the complainant had to make his own arrangements for prosecuting the trial of the case and the decision of the Magistrate was challenged before this Court. In the above decision, the learned Judge referred to a decision of the Allahabad High Court in Badri Prasad Gupta v. Kripa Shanker (AIR 1967 All. 468) in which it was held that the complaint originally filed will not assume a different garb when the police report is received and the proceedings will continue to be proceedings instituted on complaint. Sadasivan, J. in State of Kerala v. Wilfred (1968 KLT 57) referred to the decision of Raman Nayar, J. in K. Damodaran v. V.K. Sippi (AIR 1960 Ker. 389) wherein it was held that any case instituted upon complaint means 'any case of which the court has taken cognizance upon complaint.' In Cheeran Sankaran v. Narayanan Rajappan (1966 KLT 635) Madhavan Nair, J. came to the same conclusion arrived at by Raman Nayar, J. following the decision of the Supreme Court. Referring to the above decisions of Madhavan Nair, J. and Raman Nayar, J. in Madhavan Nair v. Gopala Panicker (AIR 1969 Ker. 97) T.C. Raghavan, J., on following the decision in Jamuna Singh v. Bhadai Shah (AIR 1964 SC 1541), said that a case can be said to be instituted in a court only when the court takes cognizance of the offence. It was on the basis of the above principle that the question whether the prosecution of the case can be done by the prosecutor or whether the complainant has to make his own arrangements, was decided by the court. The order of the Magistrate that the complainant had to make his own arrangements for conducting the case was found to be erroneous. In the above decision T.C. Raghavan, J. considered the meaning of the words 'institution of a case' for the purpose of deciding the question whether the Public Prosecutor had to conduct the prosecution or whether the complainant had to make his own arrangements for prosecution of the case.
13. In the decision of the Supreme Court in Jamuna Singh v. Bhadai Shah (AIR 1964 SC 1541), which had been referred to in the decision of the Kerala High Court (supra) it was held that theCodedoesnotcontainany definition of the words 'institution of a case' and it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. In Rasulbaksh v. Emperor (AIR (31)1944 Sind 103) relied on by the learned counsel appearing for the petitioner it was held that the mere presentation of a challan by the police under Section 173 Cr. P.C. in a Magistrate's Court or the mere presentation of a complaint by a private individual cannot be said to constitute the institution of criminal proceedings.
14. The learned Director General of Prosecutions would submit that notice under Section 13(2) of the Act was given on 7.2.1998 and another notice was sent on 13.3.1998. It is submitted that the institution of prosecution was on 31.1.1998, the day on which the complaint was given to the Magistrate. It is maintained by the learned Director General of Prosecutions that irrespective of the fact that the complaint was returned by the Magistrate for representation after curing defects the institution of prosecution has to be 31st January, 1998, the date on which the complaint was given in court. The learned Director General of Prosecutions placed reliance on the decision in Food Inspector, Corporation of Trivandrum v. Sadasivan (1981 (2) ILR (Ker.) 673) in support of the argument that the institution of prosecution is on the day on which the complaint is given in court. In the above decision the learned Judge refers to the definition of 'complaint' in Section 2(d) of the Criminal Procedure Code and on taking note of the fact that 'institution' has not been defined in the Act, observes that institution of prosecution is an act done by the prosecuting agency and the court has nothing to do with that. On the other hand, taking cognizance of an offence is an act done by the court before which, the complaint is filed. In the above decision it was held that taking cognizance of an offence is an act done by the court after the institution of a complaint or prosecution and that taking cognizance of an offence by a Magistrate and institution of a complaint or prosecution in that court are quite different, distinct and separate acts, the former done by the Magistrate and the latter by the prosecuting agency; Taking into consideration the circumstances in which there is possibility of the Magistrate by oversight keeping a complaint on his file for days together and taking cognizance only thereafter this Court in the above decision says that in such circumstances it cannot be said that the complaint or prosecution is instituted only on the date on which the Magistrate takes cognizance of the offence or issues summons to the accused. In the above decision, the learned Judge referred to the decision in Bikkar Singh v. State of Punjab (ILR (1971) 2 Punjab 369) in which while construing the expression 'institution of prosecution' it was held that the stage of the institution of a prosecution is reached certainly before cognizance of the offence involved is taken by the Magistrate and the taking of such cognizance is no part of the institution of the prosecution and that institution of the prosecution is an act attributable to the prosecuting agency and the court has to take no part therein. In Pramod Kumar v. State (1981 (1) FAC 161) Allahabad High Court held that the prosecution against an accused under the provisions of the P.F.A. Act will be deemed to have been instituted on the date on which the complaint was presented in the court of the Magistrate.
15. A reading of Section 13(2) of the Act would go to show that on receipt of report of result of analysis to the effect that article of food is adulterated, the Local (Health) Authority has to send a copy of the report of result of analysis after the institution of prosecution against the person from whom the Sample of article of food was taken. What has to be understood from the above provision is that the institution of prosecution is also something which has to be done by the Local (Health) Authority. The first thing he has to do on receipt of report of result of analysis under Sub-section (1) to the effect that the article of food is adulterated is to institute the prosecution against the person from whom the sample of article of food was taken. Institution of prosecution is an act which has to be done by the Local (Health) Authority and after institution of prosecution he has to send a copy of report of analysis to the accused. The court where the complaint is made alleging commission of the offences under the Act may not be taking cognizance of the offences even on the day on which the complaint is given. Section 13(2) does not say that the Local (Health) Authority has to wait till the court takes cognizance of the offence for sending a copy of the report of the result of analysis to the accused. The interpretation which can be given to the term 'institution of prosecution' used in Section 13(2) is the filing of complaint in court alleging commission of the offences under the Act.
16. This is a case in which the complaint was filed in court on 31.1.1998 and the complaint was returned by the court for curing the defect. The complaint was filed in court on 16th February, 1998 and again it was given back for being resubmitted after curing defect. It was on 26th February, 1998 that the complaint was again filed in court. The submission made for and on behalf of the petitioner is that even though the notice under Section 13(2) of the Act was given on 7.2.1998 that has to be treated as a notice issued prior to the filing of the complaint since the complaint after curing all the defects was filed only on 26.2.1998. There are decisions which would show that the provisions in Section 13(2) of the Act are mandatory and the non-compliance of the provisions goes to the root of the case. The non-compliance of the provisions of Section 13(2) of the Act will result in denying the accused the valuable right to get the sample of food examined by the Central Food Laboratory. In case the report of the Central Food Laboratory made after analysis is against what is said in the report of the Public Analyst the report of the Central Food Laboratory will have to be preferred. In the decisions referred to in which it was said that the provisions under Section 13(2) are mandatory and non-compliance of the same would result in prejudice to the accused the notice under Section 13(2) was not issued to the accused. Here the position is different. Notice was actually issued to the accused on 7.2.1998 and the contention taken up is that the notice was issued even prior to the institution of prosecution.
17. When issuing notice the accused has to be informed that if he so desires, he can make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. A period of ten days from the date of receipt of copy of the report is given to the accused to make an application to the court. That does not mean that it is mandatory that the application has to be made within ten days from the date of receipt of copy of the report and that all applications filed beyond ten days have to be disallowed by the court. The provision which says that an accused may make an application to the court within a period of ten days from the date of receipt of copy of report cannot be said to be mandatory and it can only be directory. The court is not bereft of jurisdiction to allow an application filed for the above purpose after ten days of receipt of copy of report. There may be cases in which an accused is prevented by sufficient cause from making an application to court within a period of ten days from the date of receipt of copy of the result of analysis and in such circumstances the court can entertain an application filed beyond the period of ten days mentioned in Section 13(2) of the Act.
18. Petitioner did not file an application under Section 13(2) of the Act requesting that the sample of article of food kept by the Local (Health) Authority may be sent to the Central Food Laboratory for analysis. The petitioner would have filed an application for the above purpose and would have contended before the Magistrate that the application filed by him had to be allowed since it was to be treated as an application filed within ten days in the circumstances pointed out by the petitioner. In the above circumstances, the question to be considered is whether this Court can say that the petitioner, who did not even move the Magistrate for sending the sample of article of food kept by the Local (Health) Authority to the Central Food Laboratory for analysis, can contend that he is prejudiced because he is denied the opportunity or the valuable right he has under the above provision of the Act.
19. In Sukamal Gupta v. Corporation of Calcutta (1948-1997 FAC (SC) 265) the Supreme Court held that the accused, who did not utilise the right under Section 13(2) of the Act of sending the sample to the Director of Central Food Laboratory, cannot be said to be, in any way, prejudiced by the proceedings. In Ajit Prasad Ram Kishan Singh v. State of Maharashtra (1948-1997 FAC (SC) 294) the Supreme Court said said to be, in any way, prejudiced by the proceedings. In Ajit Prasad Ram Kishan Singh v. State of Maharashtra (1948-1997 FAC (SC) 294) the Supreme Court said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director. The petitioner did not file an application as provided in Section 13(2) of the Act and hence he cannot say that prejudice was caused to him because the notice issued informing him of the right to request the court for sending the sample to be examined by the Central Food Laboratory is not in accordance with the provisions of Section 13(2) of the Act. Only if prejudice is caused to the accused, non-compliance of Section 13(2) of the Act becomes relevant. It is not open to the petitioner to get the proceedings quashed on the ground that the valuable right under Section 13(2) of the Act is denied to him and that there is non-compliance of the above provision in the Act.
20. Section 20(1) of the Act says that no prosecution for an offence under the 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 that behalf, by general or special order by the Central Government or the State Government. According to the petitioner, neither has the prosecution been launched by the Central or State Government nor any such consent has been filed before the court and consequently no cognizance would have been taken oh the basis of the complaint. It is submitted for and on behalf of the petitioner that it was the mandatory duty of the court to have examined the consent before taking cognizance of the offence. The proceedings are sought to be quashed on the ground that no written consent had been obtained by the complainant from the authorities mentioned in Section 20(1) of the Act for launching the prosecution.
21. Section 20(1) of the Act, as it originally stood, 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 that behalf by the State Government or a local authority. By Act 49 of 1964, the above clause in Section 20 was amended and the words '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' were substituted for the words 'the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority'. In 1976 the section was further amended by Act 34 of 1976 and the words 'or a local authority' at both the places where they occurred were omitted. As a result of omission of the above words, now the position after 1976 is that only the Central Government or the State Government or a person authorised in that behalf by general or special order by the Central Government or the State Government can institute prosecutions under the Act. Prosecution can also be launched with the written consent of the Central Government or the State Government or a person authorised in that behalf by general or special order by the Central Government or the State Government.
22. The provision for obtaining sanction for prosecution is made in the Act for the purpose of safeguarding the liberty of a citizen against vexatious or unreasonable prosecution. A responsible officer of the Government has been authorised to give sanction and such an officer will have to apply his mind to satisfy himself that the facts warrant a prosecution before he gives sanction for prosecution. The submission for and on behalf of the petitioner is that the prosecution has been launched on the basis of a notification issued by the Government and that there is nothing on record to show that there was application of mind by an officer of the Government to satisfy himself that in the facts of the case there was need for prosecution. In Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy (2000 SCC (Crl.) 1116) the Supreme Court said that the purpose of insisting that the consenting authority should seriously apply his mind before according consent for launching prosecution, is to prevent unnecessary or frivolous prosecution at the instance of any complainant against traders in food articles.
23. In City Corporation of Trivaridrum v.. V.P.N. Arunachalam Reddiar (AIR 1960 Ker.356) dealing with the need for getting written consent for instituting prosecution as provided in the Act before its amendment this Court said that the sanction must be for the prosecution of specified individuals and for specific offences. It was also observed that sanction required by Section 20 was not an empty formality and the sanction must show that the authority giving the sanction had applied his mind to the alleged commission of an offence by the accused person and was satisfied that the accused had to be prosecuted for the said offence.
24. In State of Bombay v. Parshottom Kanaiyalal (AIR 1961 SC 1) the Supreme Court considered the question whether it was necessary that the written consent granted by a competent person or authority had to specify the name of the complainant. After observing that the provision which requires sanction has been incorporated in the Act to prevent the launching of frivolous or harassing prosecutions against traders, the Supreme Court said that the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up for trial before a Court. It was observed by the Supreme Court that it was not necessary that the complainant must be named in the written consent. The Supreme Court was definite in saying that where prosecutions filed on the basis of written consents granted by the competent person or authority the specification of the name of the complainant is not a statutory requirement, the consent being to a specified prosecution.
25. In A.K. Roy v. State of Punjab (AIR 1986 SC 2160) the Supreme Court said that the use of the negative words in Section 20(1) that 'no prosecution for an offence under this Act................ shall be instituted except by or with the written consent of plainly makes the requirements of the section mandatory. The Supreme Court said that 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 and that other modes of performance are necessarily forbidden. The intention of the Legislature in enacting Section 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.
26. In A.K. Roy's case (supra) the prosecution was not launched either by or with the written consent of the Central Government or the State Government. The Food Inspector, Faridkot launched the prosecution. The Food Inspector was given powers of the State Government under Section 20(1) of the Act to initiate prosecutions for an offence under the Act by the Food (Health) Authority i.e., the Director of Health Services. There was a notification from which it was seen that 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. The Food Inspector who launched the prosecution was not a person who had been authorised by any general or special order issued by the Central Government or the State Government. If it were a case in which State Government issued a notification under Section 20(1) of the Act conferring authority on the Food Inspector, Faridkot under Section 20(1) to launch prosecution for an offence under the Act, there would not have been any problem. The Supreme Court in the above decision said that Section 20(1) does not envisage further delegation of power 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. It was in that context the Supreme Court said that where the power is given to do a certain thing in a particular manner the thing must be done in that way or not at all. There is nothing in Section 20(1) of the Act which would show that the further delegation by the person authorised as provided in that section is permissible. A person, who has been given authorisation as provided in Section 20(1) of the Act, can launch prosecution or he can give consent in writing for launching prosecution if he is satisfied that a prima facie case exists in the facts of a particular case for launching prosecution in the public interest. The notification issued by the Director of Health Services authorising the Food Inspector to launch prosecutions for offence under the Act was declared as ultra vires on finding that the Food (Health) Authority being the person authorised under Section 20(1) of the Act to give his written consent for the institution of prosecution cannot issue a notification further delegating his powers.
27. S.R.O. 319/96 dated 20th March, 1996 was issued by the Government of Kerala in exercise of the powers conferred by Sub-section (1) of Section 9 of the Act appointing the officers mentioned in that order to be Food Inspectors for the local area mentioned therein. That notification cannot be said to be one issued under Section 20(1) of the Act. S.R.O. 320/96 dated 20th March, 1996 was issued by Government of Kerala in exercise of the powers conferred by Sub-section (1) of Section 20 of the Act. In the above notification it is stated that the officers mentioned in Column (2) of the Schedule were authorised to institute prosecution for offences under the Act within the local area mentioned in Column (3) thereof. Food Inspector, Mannarkad is also mentioned in Column (2) of the notification. The submission made by the learned counsel appearing for the petitioner is that the Food Inspector, Mannarkad is mentioned in the notification and there is no application of mind regarding the need for initiating prosecution against the petitioner for giving consent to the Food Inspector, Mannarkad for initiating prosecution. S.R.O. 320/96 is not a notification by which consent was given to the Food Inspector, Mannarkad for initiating prosecution against the petitioner. That is a notification issued under Section 20(1) of the Act by the Government of Kerala authorising the Food Inspector, Mannarkad for initiating prosecution. In the Explanatory Note to the notification mention is made to Section 20 of the Act and it is stated that prosecution for offences under the Act as per the section shall be instituted except by or with the written consent of the State Government and hence it is necessary that the Food Inspectors are authorised to institute prosecutions for offences under the Act The notification is one issued by the Government of Kerala authorising the different Food Inspectors to launch prosecution for the offence under the Act and it can be said to be a general order made as provided under the above section of the Act, It can never be a written consent given by the State Government to the Food Inspector, Mannarkad as provided in Section 20(1) of the Act.
28. A reading of Section 20(1) of the Act would make it clear that the first part of the section says about launching of prosecution for an offence under the Act not being an offence under Section 14 or Section 14A. The latter part of the above clause says about the delegation of power by the Central Government or the State Government. In A.K. Roy's case (supra) it was said that Section 20(1) enables that prosecutions for an offence under the Act can be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf by general or special order issued by the Central Government or State Government.
29. 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. Prosecutions can also be instituted with the written consent of any of the above four specified categories of authorities or persons. The provision contained in Section 20(1) of the Act does not contemplate the institution of a prosecution by any person other than those designated. Section 20(1) does not contemplate further delegation of powers by the person authorised except that prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised. In the present case, the Food Inspector, Mannarkad is a person authorised by the State Government under Section 20(1) of the Act for instituting prosecutions. When the Food Inspector himself is authorised under Section 20(1) of the Act by the State Government, there is no need for having a written consent as envisaged in the Act. When a person authorised under Section 20(1) of the Act by the State Government initiates prosecution it is not at all necessary to show that there was a written consent given to him for initiating prosecution and there was application of mind and also there was sufficient reason for giving consent. Since the prosecution is launched by a person authorised by the State Government under Section 20(1) of the Act there is no need for this Court to go into the question whether there was any written consent for the prosecution. There is no substance in the contention that the prosecution is bad for the reason that written consent as provided in Section 20(1) of the Act had not been obtained for initiating prosecution.
There is no reason for quashing the proceedings. Petition is dismissed.