J.M. SHETH, J.
1. This is an appeal filed by a Food Inspector of Bhavnagar Municipality against the acquittal order passed by the learned Judicial Magistrate, First Class, Bhavnagar, Mr. D. A. Chhaya, in a Criminal Case No. 860 of 1965 in favour of respondent No. 1 (who will be hereinafter referred to as the accused). The accused was prosecuted for allegedly selling adulterated honey. He was prosecuted for an offence punishable under State. 16 (1) (a) (i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954) which will be hereinafter referred to as the Act, alleging that the accused had sold adulterated honey on 25th June, 1965 to the Food Inspector, Bhavnagar. It was taken for the purposes of analysis. At the time the sample was taken, the accused had declared that the honey sold by him to the complainant was purchased by him from Khed-Brahma Madhu Udyog Kendra, Ahmedabad and in support of that version of his, he had produced some original bills, Exs. 12 to 14. He had requested that a process be issued against the proprietors of the said concern and accordingly, a process was issued against them and they appeared before the trial Court. Finding that there was no evidence to incriminate them, they were discharged under Section 253 (1) of the Criminal Procedure Code. A charge was framed against the accused. The prosecution led the evidence to establish that charge. The accused was examined under Section 342 of the Criminal Procedure Code. He volunteered to be a witness for himself and he examined himself as a witness for the defence. (Para 11)
2. On consideration of the evidence led by the prosecution, the trial Court found that the accused had sold honey to the complainant which did not conform to the prescribed standards laid down in the relevant rules of the Prevention of Food Adulteration Rules, 1955. That position was not assailed before the trying Magistrate. The defence of the accused in the trial Court was that he had sold the honey which he had purchased from Khedbrahma Madhu Udyog Kendra, Ahmedabad as pure honey and so he could not be said to have committed any offence. The learned trying Magistrate found that in the bills under which the accused purchased honey, there was a mention that this concern was dealing in `pure honey'. It could, therefore, be inferred in law that there was a requisite warranty. It was further borne out, according to the trying Magistrate, from the prosecution evidence as well as the evidence of the accused that the honey sold to the complainant by the accused was sold in the same state as he held purchase it. In his opinion, therefore, the accused cannot be said to have sold adulterated honey to the complainant. He sold the honey which was purchased by him in the same condition. In short, the learned trying Magistrate was of opinion that the accused was entitled to avail of the defence referred to, in Section 19 of the Prevention of Food Adulteration Act, 1954. On that ground, he acquitted the accused of the offence in question.
3. The appeal came for hearing before our learned Brother Sarela, J. Sarela J., was of opinion that there being no such warranty as has been referred to in Section 19(2) of the Act, the accused was not protected. Furthermore, he was of opinion that there was no proof adduced as required by Clause (b) of Section 19, sub-clause (2) of the Act. In that view of the matter taken by him, the learned Advocate Mr. D. D. Vyas, appearing for the accused, took up a contention that the prosecution launched in this case was not by a proper person or a competent authority. The authority was given to the Health Officer to institute such a prosecution. That authority did not extend to the giving of the written consent to the filing of the prosecution. Therefore, although the Health Officer could under the authority file a complaint by himself, he could not give written consent to its filing in the absence of such express authorisation. In short, a contention was raised before Sarela, J., that in the absence of any such express authorisation with regard to the consent to filing of prosecution, such a complaint filed by a Food Inspector of Bhavnagar Municipality was not by a proper person and eventually, the prosecution was bad, and consequently, the Court could not take cognisance of the offence. Sarela, J., on examination of several decisions of this Court, given by single Judges and certain observations made by a Division Bench of this Court and on analysis of the material section 20(1) of the Act, felt a doubt about the view taken in several decisions by single Judges of this Court. That doubt was especially raised in view of the position that in none of those decisions, certain observations made by the Supreme Court in State of Bombay (now Gujarat) v. Parshottam Kanaivalal, AIR 1961 SC 1, were considered. Sarela, J., in his referring judgment, has referred to the statement of law made by the Bombay High Court and approved by their Lordships of the Supreme Court, which runs as under:
'The plain grammatical meaning of this section is that the written consent may be of the State Government, or a local authority, or a person authorised in that behalf by the State Government or local authority. In our view, under this section, the prosecution can be instituted (1) by the State Government, (2) by a local authority, (3) by a person authorised in that behalf by the State Government or (4) by a person similarly authorised by a local authority. Further, a prosecution can also be instituted with the consent of any of these four authorities.' At the time the Supreme Court was called upon to construe the section the words `Central Government' were not in the section and, therefore, the authorities mentioned were four.
4. Sarela, J., in his referring order, observes:
'These observations of the Supreme Court do not appear to have been brought to the notice of the Court in any of the decisions of this Court just referred to .
Having regard to the different views expressed in these decisions and to the fact that the implication of the Supreme Court's observations in AIR 1961 SC 1 do not appear to have been canvassed before any of the Judges and having regard to the important question involved I refer the case to the Division Bench.'
This is how this appeal has come to us.
5. The important question for consideration is the interpretation of Section 20(1) of the Act. To appreciate the rival contentions urged at the Bar and to arrive at a correct meaning, we first propose to set out the relevant part of Section 20(1) of the Act.
6. We will first set out the relevant part of Section 20(1) of the Act as it stood before its amendment by the Amending Act No. 49 of 1964, known as 'The Prevention of Food Adulteration (Amendment ) Act, 1964, dated 25th December, 1964, which came into force from 1st March, 1965. It reads:-
'20(1) 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.'
There is a proviso to that section which is not material for our purposes and so it is not set out. The aforesaid amending Act, by its section 11, made the amendment. That Section 11 of the Amending Act reads:-
'In Section 20 of the particular Act in sub-section (1), 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', 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' shall be substituted.'
If we incorporate this amendment, the material section reads as under:-
'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............'.
It will be significant to note at this stage that the accused-respondent was accused of having committed the offence in question on 20th May, 1965, i.e., after the aforesaid amendment came into force.
7. The argument advanced on behalf of the appellant by Mr. D.U. Shah as well as by Mr. A.H. Thakar, the learned Hon. Assistant Government Pleader, appearing on behalf of respondent No.2, the State of Gujarat, was that this prosecution was filed by a proper person. According to them, the Health Officer of Bhavnagar Municipality having been authorised by Bhavnagar Municipality by its Resolution, Ex.5, to institute prosecution for such offences under Section 20 of the Act, and the Health Officer, in his turn having given a written consent to filing of such prosecution by the Food Inspector, Bhavnagar, the requirements of Section 20(1) of the Act were satisfied. Eventually, the prosecution filed was by a proper person. It was, therefore, contended that once the local authority authorised a person like a Health Officer to institute such prosecutions, it necessarily carried with it the power to consent to such filing of prosecution. That argument was advanced on the basis that the legislation itself contemplated that such person could give a written consent to filing of such prosecution. A delegate like a Health Officer who derived the authority from his principal, namely, Bhavnagar Municipality to institute such prosecution, was empowered by this very statute to give a written consent to filing of such prosecution. It was, therefore, not necessary for a Health Officer to derive any authority from his principal to consent to such filing of prosecution. That power, he derived from the statute itself and that was the interpretation they suggested for the second part of Section 20(1). The section will be analysed by us at an appropriate stage.
8. As against this argument advanced by them, Mr. D.D. Vyas, appearing for the accused, contended that the legislature contemplated several persons or authorities instituting such prosecution by themselves. Further, the legislature contemplated such authorities to give consent to filing of such prosecution. Such powers could be delegated by these authorities as the legislature itself contemplated such delegation of powers. But according to him, so far as the delegate is concerned, namely, a person like a Health Officer who derives his authority to institute prosecution from a local authority like, Bhavnagar Municipality, will not be entitled to consent to filing of such authority to consent to filing of such prosecution from his principal. For deriving such powers, he has to look to his own principal, namely, the Bhavnagar Municipality, and he cannot look to the Statute for deriving any such authority. In short, his argument was that there were two distinct powers given to the authorities themselves. One was the power to institute such prosecution by themselves, and the second power was that they could give a written consent to filing of such prosecution. The Legislature itself clothed them with such authority or with such power which they could delegate. So far as the fourth category of persons is concerned, namely, a person authorised by general or special order by the Central Government or the State Government or a local authority authorised to institute such prosecutions as it could be done by the Central Government or the State Government or a local authority. But so far as the second power is concerned, namely, to consent to filing of such prosecution, he cannot rely upon any alleged delegation of the powers by the legislature itself. He himself being a delegate, his power is restricted to the power that is delegated to him expressly. He should derive the second power which is a distinct power from his principal, namely, the power to consent to filing of such prosecution. Mr. Vyas laid emphasis on the position that the power to institute prosecution and the power to consent to filing of prosecution are two distinct powers and one power will not necessarily carry the other. It was, therefore, contended by him that a person of the fourth category or fourth class can give consent to filing of such prosecution only if he is empowered in that behalf by his principal, meaning thereby that he must have been expressly authorised by his principal to consent to filing of such prosecution. In the absence of any such authorisation, he is not entitled to give such consent to filing of prosecution. He laid emphasis on the user of the phrase - 'a person authorised in this behalf'. He laid emphasis on the position that this phraseology has been advisedly used in two different contexts by the legislature, (1) when one is considering the position about different categories of authorities or persons, referred to in Section 20(1) of the Act, filing the prosecution by themselves, and (2) when one is considering the position when different authorities or persons are consenting to filing of such prosecution. He urged that in the argument advanced on behalf of the State as well as the complainant that while reading the second clause of this section, both these powers should be clubbed together and one should consider a composite power, there is fallacy. It was urged by Mr. Vyas that the Legislature undoubtedly considered these two powers distinctly so far as three principal authorities were concerned, namely, the Central Government or the State Government or a local authority. It would not be correct to consider that position differently when one was considering the position of a delegate who was a person authorised in this behalf by a general or special order, by the Central Government or the State Government or a local authority. Even so far as the position of that fourth category of persons is concerned, the correct approach should be to consider that position similarly and if that is done, the correct position that emerges is that such a delegate can consent to such filing of prosecution only if his principal has authorised him in that behalf, meaning thereby that there is an express authority conferred on him to consent to filing of such prosecution and the authority conferred on him to institute such a prosecution will not entitle him to consent to filing of such prosecution.
9. On a plain and a fair reading of the wording of this Section 20(1) of the Act and bearing in mind that the word `by' is followed by a comma (,) and there is user of disjunctive `or' between the word `by' and the clause `with a written consent of' and that clause is followed by a Comma (,), there is, in our opinion, a considerable force in these arguments advanced by Mr. Vyas.
10. In our opinion, the material part of this Section 20(1), can be divided in two different parts and those parts will read as under: -
(1) 'No prosecution for an offence under this Act shall be instituted except by, 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.'
That part will indicate that such a prosecution can be instituted by, (1) the Central Government, or (2) the State Government, or (3) a local Government, or (4) a person authorised in this behalf, by general or special order, by the Central Government, meaning thereby that a person authorised to institute such prosecution by general or special order, by the Central Government, or (5) a person similarly authorised by the State Government, or (6) by a person similarly authorised by a local authority.' That would be a fair reading of that first part of Section 20(1) of the Act.
The second part will read as under: -
'No prosecution for an offence under this Act shall be instituted except with the written consent of (1) the Central Government , or (2) the State Government, or (3) a local authority, or (4) a person authorised in this behalf, by general or special order, by the Central Government, or a (5) a person similarly authorised by the State Government or (6) a person similarly authorised by a local authority. On a fair reading of that second part, it appears to us that such prosecution can also be instituted with a written consent of the Central Government or with a written consent of the State Government or with a written consent of a local authority. Those authorities are themselves principals. The legislature itself contemplated by this section that these authorities who are themselves principals and who can, in view of the first part of section 20(1) of the Act, institute such prosecution themselves, they can get such prosecution instituted by giving a written consent to filing of such prosecution. In short, the legislature by the statute itself, indicated its mind that such principals can delegate such powers vested in them. So far as the other categories of persons are concerned, such prosecution can be instituted with a written consent of a person authorised in that behalf by, general or special order by the Central Government or the State Government or a Local Authority. These categories of persons are not principals themselves. They have not, on their own, the power to institute such prosecution. They would be clothed with that authority or power if they derived it from their principals on account of authorisation in that behalf. That being the position, one has to keep in mind as to why the legislature advisedly used the words, `written consent of' in reference to such persons in the position as obtains in the section itself and not at the end. If the legislature intended that such persons, also like the three principal authorities could consent to such filing of prosecution and that power depended upon the statute itself and that category of persons had not to derive that power from its principal, the legislature, in our opinion, could have conveyed that intention of it by the simple user of the following phraseology:
'No prosecution for an offence under this Act shall be instituted except by 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 or with the written consent of any of these authorities or persons.'
If that phraseology had been used, an argument could have been very well advanced that the legislature intended that even such a person who had been authorised to institute prosecution was contemplated to have power to consent to filing of such prosecution. In that event, the argument advanced by Mr. Shah as well by Mr. Thakar, could have got a considerable force. But the legislature had advisedly not used that phraseology. The words, 'with the written consent of' have been, in our opinion, correctly placed in the position they are found in this section, as the intention of the legislature was to keep in mind the two distinct powers and the two distinct powers which were to be exercised by the principal authorities were intended to be so, also in relation to the fourth category of persons, namely, a delegate. Those two powers were not intended to be clubbed together so far as that fourth category of persons was concerned. It was not contemplated or intended by the legislature that the fourth category of persons will have a composite power, one including the other. Ordinarily also, a delegate has to look to his principal for his authority or power and not to the statute. In our opinion, the legislature has advisedly used the words, `authorised in this behalf'. These words have to be understood in the two different contexts and there is nothing wrong in arriving at a conclusion that the legislature intended to give different meanings when they were to be considered in the two different contexts. On a proper analysis of this section harmoniously interpreting this section, seeing that any of the words used in that section are not rendered nugatory and keeping in mind that the important woods have been properly placed, and different contexts are borne in mind, the only reasonable conclusion that can be arrived at, in our opinion, is that the legislature intended to give two different meanings to the phrase, 'authorised in this behalf'. When it is considered with reference to the first power, namely, the power to institute a prosecution, such a person who is to be given power to institute a prosecution must be authorised by his principal to institute such prosecution. That authorisation can be general authorisation which may be given by a general or special order, by any of the authorities, namely, the Central Government or the State Government or a local authority. While considering that phrase with reference to the second power, namely, giving the written consent to filing of such prosecution the legislature clearly intended that such express authorisation must be obtained or derived from his principal by that person. The authority must be to consent to filing of such prosecution. That may be the general authorisation which may be given by a general or special order, by the Central Government or the State Government or a local authority. Merely, a conferment of the power to institute such prosecutions on such person by his principal will not necessarily carry the power to consent to filing of such prosecutions. Those two powers are quite distinct. The legislature, by adopting this phraseology, in our opinion, has kept in mind these two distinct powers. We are, therefore, of opinion on the ultimate analysis of this section that such a person will be entitled to consent to filing of such prosecution only, if that person has got such authorisation from his principal. That authorisation must be an express authorisation to consent to such filing of prosecution. If there is no such conferment of the power to consent to filing of prosecution, that person will not be entitled to give a written consent to filing of such prosecution to any person and eventually, the prosecution filed by any person with the written consent of such a person who has not been expressly authorised to consent to filing of such prosecution, will be a prosecution launched by a person without a proper authority and consequently it would be bad.
11. We will now consider the decisions cited at the Bar and try to examine the question critically whether the observations made by the Supreme Court, which have been quoted by our learned Brother Sarela, J., and which we have referred to earlier really run counter to the view that we are inclined to take.
12. We will first refer to certain observations made by P.T. Raman Nayar, J., in Municipal Health Officer and Food Inspector v. Anthala Tea Estate Co., AIR 1961 Ker 84. After quoting Section 20(1) of the Act, as it stood before aforesaid amendment of 1964 came into force, the pertinent observations made at page 85, are as under: -
'What I might call the first clause of the section requires that the prosecution shall be instituted by, or with the written consent of, the State Government or a local authority while, what I might call the second clause, offers the alternative of the prosecution being instituted by, or with the written consent of, a person authorised in that behalf by the State Government or a local authority.
Now, the institution of a prosecution whether it be by the State Government or a local authority under the first clause, or by a duly authorised person under the second clause, can only be for a particular offence committed by a particular person. and it is fairly clear that the written consent, whether by the State Government or local authority, or by the authorised person, must be with reference to a particular offence committed by a particular person. There can be no general consent for the prosecution of all offenders. It seems to me equally clear that the authorisation under the second clause can be general authorisation to institute, or give consent to prosecutions for offences under the Act.
What the second clause enables is a general delegation of the power given to the State Government and local authorities under the first clause, and, the words, 'authorised in this behalf' appearing in the second clause mean, authorised to institute, or give consent to, any prosecution for an offence under the Act, in other words, to exercise the power conferred on the State Government and local authorities by the first clause.
They cannot be restricted in their scope by relating them to the words, 'an offence' appearing at the beginning of the section and saying that the authorisation must be in respect of each offence. For, if that were what the second clause meant then it might as well not have been enacted at all. The written consent permitted by the first clause would have served the purpose. The State Government or local authority could as well act under the first clause and give written consent in each case instead of considering each case and then authorising somebody else to institute, or to give consent, to a prosecution.
The special provision for authorisation contained in the second clause would become quite meaningless. It is obvious that the very object of the second clause is to enable the State Government and local authorities to appoint some other person to exercise on their behalf the discretion vested in them by the first clause since, if the State Government or the local authorities had to consider each particular case and determine whether a prosecution should be launched or not, the section would become altogether unworkable having regard to the large number of offences that are committed. And that very object would be defeated by the interpretation sought to be place on the clause.'
We are quite conscious of the position that Raman Nayar, J., had not to decide exactly the point which we are called upon to decide in this case. But at the same time, he has tried to analyse this section, keeping in mind the distinct powers and his observation that the words, 'authorised in this behalf' appearing in the second clause mean, authorised to institute, or give consent to, any prosecution for an offence under this Act, in other words, to exercise the power conferred on the State Government and local authorities by the first clause, are weighty observations and we are in respectful agreement with his opinion in this behalf and also we are in respectful agreement with the analysis of the section 20(1) made by him.
13. In State v. Parshottam, AIR 1960 Bom 244, a Division Bench of the Bombay High Court, consisting of Datar and Miabhoy JJ., has made the following observations at pp. 245 and 246:-
'The construction which has been put by the learned Sessions Judge obviously ignores the two commas, which appear in the section before and after the clause 'or with the written consent of'.
One of the commas precedes, and the other follows the clause 'or with the written consent of'. The plain grammatical meaning of this section is that the written consent may be of the State Government, or a local authority or a person authorised in that behalf by the State Government or local authority. In our view, under this section, the prosecution can be instituted (1) by the State Government, (2) by a local authority, (3) by a person authorised in that behalf by the State Government, or (4) by a person similarly authorised by a local authority.'
In our view, under this section, the prosecution can be instituted, (1) by the State Government, (2) by a local authority, (3) by a person authorised in that behalf by the State Government, or (4) by a person similarly authorised by a local authority. Further, a prosecution can also be instituted with the consent of any of these four authorities. It would be proper at this stage to note that this statement of law made by the Division Bench of the Bombay High Court has been approved by the Supreme Court decision, referred to above in the appeal which was filed against this very decision of the Bombay High Court.
It is further observed in this decision by Datar, J., speaking for the Division Bench:
'In the present case, the complainant, the Food Inspector relies upon the written consent of the Chief Officer. By a resolution No. 222 dated 7-5-1956, the Baroda Borough Municipality authorised the Chief Officer and the Health Officer, as per Section 20 of the Prevention of Food Adulteration Act, 1954 to allow them to give permission to file complaints for the commission to offences under the said Act. In view of this authority vested in the Chief Officer, the Chief Officer accorded sanction for prosecuting the present accused by his letter dated 13-10-1956. In that letter, it was stated that under authority vested in the Chief Officer of the Baroda Borough Municipality by Resolution No. 222 of 7-5-1956 of the Baroda Municipal Board, sanction was given for instituting prosecution against the accused for contravening the provisions of Government of India's Prevention of Food Adulteration Act, 1954. The name of the accused, his address, and the date of the offence were mentioned. It was further stated in the letter that the sanction was accorded after going through the Milk Analysis Report and other pertinent documents and the nature of offence committed by the accused as required by Section 20 of the Prevention of Food Adulteration Act, 1954. Therefore, if this sanction were a written consent, as required by Section 20, there would not be any difficulty in the way of the Food Inspector instituting the present prosecution against the accused. We have already held that the written consent may be given not only by the State, but also by the local authority, or by a person duly authorised either by the State or by the local authority in that behalf. In this case, the Chief Officer was a person who had been duly authorised by his local authority to accord sanction, and in the exercise of this authority vested in him, he gave the sanction for the prosecution of the present accuse.'
This decision was given by a Division Bench of the Bombay High Court on 18th December, 1957, i.e. prior to the bifurcation of the Bombay State. It is significant to note that in that case, the authority vested in the Chief Officer was the authority to give permission to file complaints for the commission of offences under the Act. It is true that a view taken in that decision that a written sanction of a nature which they had in that case or a written consent without mentioning the person to whom such consent or sanction was given, was not a sufficient compliance with the terms of the section, was not accepted as a correct view by the Supreme Court in the aforesaid decision.
14. That Supreme Court decision, as said earlier, is reported as AIR 1961 SC 1. In para 7 of the judgment, the Supreme Court has made a pointed reference which is to the following effect:-
'There is here no dispute that `the local authority' - the Baroda Municipality had authorised the Chief Officer of the Municipality to grant consents under Section 20(1) of the Act for the filing of complaints in regard to offences under the Act. There is no dispute either that the Chief Officer granted on October 13, 1956, his `written consent' to the filing of his complaint against the respondent. The `consent' is in the following terms:
`Under authority vested in the Chief Officer of the Baroda Borough Municipality.......sanction is hereby given for instituting prosecution against the following milk vendors for contravening the provisions of Government of India's Prevention of Food Adulteration Act, 1954.'
In Para 9, at p. 3, the following pertinent observations are made: -
'We may, at the outset, point out that we entirely agree with the learned Judges of the High Court in their view that on the terms of Section 20(1) a prosecution could be instituted with the written consent not merely of the State Government but `of a local authority' or `a person authorised in this behalf by the State Government or a local authority'. In our opinion, on the language of the sub-section no other construction appears possible. The learned Judges of the High Court said:...........' We nee not repeat those observations of the Bombay High Court, quoted by their Lordships of the Supreme Court, as we have already quoted them earlier. Emphasis is laid on behalf of the complainant as well as the State before us on the statement of law further referred to therein, 'further, a prosecution can also be instituted with the consent of any of these four authorities'. It was urged that the statement was significant enough to indicate that the Supreme Court was of the view that a person who was authorised by the State Government or a local authority to institute such prosecution, would be entitled to give a written consent to filing of such prosecution and that was the reason why it had been stated 'further, a prosecution can also be instituted with the consent of any of these four authorities.' It appears to us that is because of these observations made by the Bombay High Court and approved by their Lordships of the Supreme Court and they having been not referred to in the decisions of this Court, our learned brother Sarela JJ., felt some doubt about the correctness of the view expressed by the single Judges in the decisions of this Court. If we critically examine this statement of law, approved by the Supreme Court, the position that emerger is:
(1) the prosecution can be instituted, by the State Government,
(2) or by a local authority,
(3) or by a person authorised in that behalf by the State Government, or
(4) by a person similarly authorised by a local authority,
and further, a prosecution can also be instituted with the consent of any of those four authorities.
It would mean that such a prosecution can be lodged also by third and fourth categories of persons referred to therein. But at the same time, the position remains that those persons should have been authorised by the State Government or a local authority. The question, as to what that authority should be in different positions remains for consideration. The question whether the authority to institute prosecution merely, would necessarily carry the authority to consent to filing of such prosecution, was not posed for decision before their Lordships. On the contrary as said earlier, their Lordships have made a specific reference to the authority vested in the Chief Officer, namely, 'the Chief Officer was authorised by the Municipality to grant consents under Section 20(1) of the Act for the filing of complaints in regard to the offences under the Act'. It, therefore, clearly means that in that case, this class of persons whom we have referred to as a class of delegates, derived authority from its principal to consent to filing of such prosecution and it was such a delegate who had given a written consent to the complainant to file that particular prosecution. It is in the context of those circumstances and those facts that the aforesaid observations have been made by their Lordships of the Supreme Court. On critical reading of this decision, we do not find anything to indicate that any view that is contrary to the view that we are inclined to take, has been expressed by their Lordships.
15. In para 13, it has been observed:
'In the second place, the sub-section itself contains an indication that the written consent is for the launching of a specified prosecution, and not one `in favour' of a complainant authorising him to file the complaint. Omitting for the moment the State Government and `the local authority' which are specified in the provision as competent by themselves to initiate prosecutions, persons `authorised by' these two authorities are further included. The expression `person authorised in this behalf' obviously refers to a named person who is so authorised. In the case of these four categories, the authority or person filing the complaint has itself or himself to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is called for. Turning next to the other class, the relevant words are `no prosecution.........shall be instituted except.......with the written consent of......' Here the emphasis is on the consent to the filing of the prosecution, not to the person filing it. The preliminary examination of the facts to ascertain the desirability and propriety of the prosecution is in this last case, the responsibility of the person or authority giving the written consent - not of the person who figures as the complainant. The two classes are distinct and the employment of different phraseology to designate the two types of devolution of authority, constitutes an indication that in the second class of cases - where prosecutions are 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.'
16. In State v. Shankar Gambhire, AIR 1965 Bom 17, a Division Bench of the Bombay High Court has taken a similar view as taken in the earlier decision of the Bombay High Court, AIR 1960 Bom 244. After analysing this Section 20(1), in para 6 of the judgment as prosecution. 18, the relevant observations made are
'In the present case, the Municipal Borough of Sholapur, which is the local authority, had authorised the Standing Committee to sanction prosecutions under the Act and the Standing Committee in its turn gave written consent to the Chief Food Inspector to launch the prosecution. It was contended that this amounts to delegation by a delegate and therefore the authorisation is invalid. We are unable to accept this argument. All that is necessary under Section 20 of the Act is that there should be written consent of the proper authority. In the present case, we have to see whether the local authority had given its written consent to the institution of the prosecution. The Standing Committee has given express authority to the Chief Food Inspector to launch the prosecution. The General Body had given standing authorisation to the Standing Committee to give written consent. There is nothing in Section 20 of the Act to suggest that the delegation of authority by the Standing Committee is in any way invalid or is vitiated.'
In that decision also, the observations made by the Supreme Court referred to above, have been referred to. It thus appears from this decision of a Division Bench of the Bombay High Court that Naik and Tulzapukar, JJ., who decided that case, had to deal with the position about giving of a written consent in a case where a General Body had given standing authorisation to the Standing Committee to give written consent and the Standing Committee, in its turn, had given express authority to the Chief Food Inspector to launch prosecution. In the instant case, such authority is not given to the Health Officer of Bhavnagar Borough Municipality. A copy of that resolution is produced at Ex. 5. The material part of the resolution reads:-
The Health Officer, Bhavnagar Municipality was given authority in accordance with Section 20 of the Act to institute prosecution.
There is no express authority conferred on him to give written consent to institute such prosecutions.
17. Mr. Thakar invited our attention to the decision of a Single Judge of Delhi High Court, Jagjit Singh, J., in Nawal Kishore v. State, AIR 1969 Delhi 198, in support of his argument. In para 8, at prosecution. 200, it is observed:
'Regarding the contention that the complaint was filed by an unauthorised person, it will be noticed that Shri Nirmal Kumar Jain was authorised under Section 20 of the Act, through a resolution of the Municipal Corporation (No. 973 dated 10-2-1961). A copy of that resolution, Exhibit PK, is on the record of the trial Court. The resolution shows that the recommendations of the Medical Relief and Public Health Committee for authorising Shri Nirmal Kumar Jain under Section 20 of the Act, to institute and conduct all prosecutions arising under the Act, were approved.'
The contention raised therein by the learned Counsel for the petitioner was that there could be no general authorisation by the local authority prior to amendment of Section 20 of the Act by Section 11 of the Prevention of Food Adulteration (Amendment) Act, 1964 (No. 49 of 1964). It was in context of the consideration of that position, the following observations were made in para 13, at page 201:
'It seems me that provisions of Section 198-B of the Code of Criminal Procedure are not in pari materia with those of Section 20 of the Act before its amendment by Act 49 of 1964. Section 198-B of the Code of Criminal Procedure prohibits a Court from taking cognizance of certain offences including those under Sections 500 and 501 of the Indian Penal Code except upon complaint made by a person aggrieved by such offence. The normal procedure, therefore, is that it is for the person defamed to himself make a complaint to the Court in order to enable the Court to take cognizance of the offence complained of. The provisions of Section 198-B, as was held by the Supreme Court, were enacted for the specific purpose of allowing the State to prosecute a person for defamation of a high dignitary of a State or a Public servant, when such defamation is directed against the conduct of such person in the discharge of his public functions. Obviously, therefore, the sanctioning authority is to apply its mind to the facts of the particular case before according sanction.
In Gurnam Singh Lal Singh v. State, 1963 (1) Cri LJ 708 (Punj), the Punjab High Court did not accept the contention that a general authorisation of a Food Inspector to prosecute all offences under Act was invalid. D. Falshaw, J., (as he then was) observed that what the section meant was that the prosecution must be instituted either by some person duly authorised with delegated power or else by some person not so delegated but with the written consent of an authorised person. The Bench decision in the State v. Moti Ram, 1962-64 Punj LR 1039 also proceeded on the same basis. With great respect I am in agreement with the view taken in these cases.'
It is significant to note that in that case, the person authorised himself had instituted the prosecution. The prosecution was not launched by a person who was given a written consent by a person merely authorised to institute the prosecution and not authorised to consent to filing of such prosecution.
18. We will now refer to the two decisions referred to, in the aforesaid Delhi High Court decision as there is no independent reason given in that decision by Jagjit Singh, J., who heard the appeal.
19. In State v. Moti Ram, ILR (1963) 1 Punj 63, at prosecution. 66, it has been observed: -
'In each of these cases, the complaints under sub-clause (i) of clause (a) of sub-section (I) of Section 16 of the Act had been filed by a Food Inspector for the local area concerned. It is not disputed that each of these Food Inspectors was authorised under sub-section (1) of Section 20 of the Act by the State Government to institute prosecutions for offences under the Act.'
It is thus evident that in that case also, the person who instituted the prosecution was himself a person authorised by the local authority to institute a prosecution. The question for consideration was whether such general delegation of power was contemplated by this section or not, and the answer to that question was given in the affirmative.
20. After referring to the decision of Kerala High Court in AIR 1961 Kerala 84, to which we have already made reference, it has been observed at prosecution. 68 as under:-
'A complaint in this case was laid by a Food Inspector, and all Food Inspectors had been generally authorised by the State Government of Kerala to institute prosecutions for offences under the Act. The learned Judge held that sub-section (1) of Section 20 enabled general delegation of the power given to the State Government and local authorities, and the words 'authorised in this behalf' meant the authority to institute or give consent to institute a prosecution for an offence under the Act, in other words to exercise the power conferred on the State Government and local authorities. He further held that the use of the words `an offence' in the opening part of the Section would not justify the interpretation that authorisation must be in respect of each particular offence, such a restrictive interpretation would defeat the very object of the section which was to enable the State Government and the local authority to appoint some other person to exercise on their behalf the discretion vested in them. If the State Government or the local authorities had to consider each particular case and determine whether a prosecution should be launched or not, there would be no point at all in conferring on them the power to delegate, and moreover, the section would become altogether unworkable having regard to the large number of offences that are committed.'
The Division Bench of the Punjab High Court in this case quoted certain observations made by Falshaw, J., (as he then was), in Gurnam Singh v. The State, Criminal Revn. No. 999 of 1961, D/-21-11-1961 (1) Cri LJ 708 (Punj):
'With due respect it seems that this decision is based on a misunderstanding of the purport of the section which has been interpreted by the learned Judges as if the words 'by or with the written consent of the State Government ...........' were 'by and with the written consent of the State Government ......' In my opinion the written consent is only necessary where the prosecution is being instituted by some person who has not already been given powers to institute such prosecutions. The learned counsel for the petitioner was quite right in suggesting that it would be meaningless for a person authorised to institute prosecutions under the Act to give himself written consent to institute a particular prosecution, but in my opinion as far as persons who have been duly delegated with authority to institute prosecutions under the Act are concerned, the section can be read as if the words 'or with the written consent of' were omitted altogether, and what the section means in my opinion is that the prosecution must be instituted either by some person duly authorised with delegated power or else by some person not so authorised but with the written consent of an authorised person.'
and observed, 'with respect, I entirely agree with these observations.'
21. The observations made, after referring to the decision of the Supreme Court, referred to by us earlier, are at prosecution. 72 in the following terms: -
'Analysing the statute, the learned Judges observed that `the sub-section itself contains an indication that the written consent is for the launching of a specified prosecution, and not one `in favour' of a complainant authorising him to file the complaint. Omitting for the moment 'the State Government' and 'the local authority' which are specified in the provision as competent by themselves to initiate prosecutions, persons 'authorised by' these two authorities are further included. The expression 'person authorised in this behalf' obviously refers to a named person who is so authorised. In the case of these four categories, the authority or person filing the complaint has itself or himself to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is called for. Turning next to the other class, the relevant words are 'no prosecution ...........shall be instituted except.........with the written consent of'.............Here the emphasis is on the consent to the filing of the prosecution, not to the person filing it. These observations contain to my mind a complete answer to the argument put forward on behalf of the respondents. In the cases before us no question of any written consent arises. The Food Inspector who was authorised by the State Government to file the complaint, had himself to consider the reasonableness and propriety of the prosecution, and this requirement must be deemed to have been fulfilled when he chose to file the complaint.'
22. In 1963 (1) Cri LJ 708 (Punj), D. Falshaw, J., has dealt with this question in a similar manner. As the relevant observations made by him have been referred to, in the aforesaid decision of the Division Bench, we need not repeat them. It is significant to note that the position in dispute in that case was that food inspectors generally and the complainant in particular had been delegated with powers to institute prosecutions under Section 20(1) of the Act. But it was argued that the consent of such authority was necessary for the prosecution of any particular individual and general delegation will not suffice. That contention was repelled.
23. Mr. Thakar invited our attention to the decision of a Division Bench of Rajasthan High Court in Municipal Council, Ajmer v. Sadulla, AIR 1969 Raj 39, and urged that decision supported his interpretation of this material section. In our opinion, that argument of his is not well founded. The relevant observations made therein are:
'The language of Section 20 does not in any manner indicate that the legislature by making this provision in the Act intended that before launching a prosecution against a person under this Act any sanction was at all necessary. The only safeguard that has been provided by this provision is that nobody except the authorities mentioned in this section and the persons empowered by the authorities can launch the prosecution.
Where by a general resolution the Municipal Council had delegated power to the Law Superintendent or the Municipal Prosecuting Inspector of the Council to institute the prosecution under the provisions of the Act, and the complaint in the case was filed by such officer about two months after passing of the resolution, the Sessions Judge acted erroneously in setting aside the conviction on the ground that the resolution could not serve as a sanction for prosecuting the accused under the Act. The general delegation made under the resolution was permissible under Section 20.'
The ration of that decision is that general delegation made under the resolution is permissible under Section 20 of the Act. The delegation need not be for a particular prosecution.
24. After referring to these decisions, we will now refer to certain other decisions to examine the question whether there is anything in those decisions which really run counter to the view that we are inclined to take.
25. In Madurai City Co-operative Milk Supply Union v. Food Inspector, Madurai Municipality, 1962 (1) Cri LJ 166 (Mad), Veeraswami, J., a Single Judge of the Madras High Court, after referring to Section 20(1) of the Act at pp. 167 and 168, made the following pertinent observations: -
'The object of sub-section (1) obviously is to avoid indiscriminate prosecution without scrutiny in each case of particular facts and circumstances justifying penal action under the Act. The section therefore, requires certain conditions to be complied with before a Court can take cognizance of a prosecution under the Act. It states that the prosecution may be instituted (1) by the State Government, (2) a local authority, (3) a person authorised by the State Government, and (4) a person authorised by the local authority. In addition, the section also provides that a prosecution may be instituted with the written consent of any of the four categories of authorities aforesaid. When the section speaks of institution of prosecution with the written consent of any of those authorities, it plainly means that the consent should be specifically related to a particular offence with reference to which it is intended to institute a prosecution. If the authority that institutes a prosecution is the State Government or a local authority, in that case no written consent is of course required.
But the argument is that if the person instituting a prosecution is one authorised by the State Government or a local authority, the authorisation should be specific in relation to a particular case and not in general terms applicable to all prosecutions, as and when they may arise. This construction by Sri Mohan Kumaramangalam appearing for the petitioners is based on the words 'in this behalf' in sub-section (1). He contends that these words import an intention that 'the State Government or a local authority' before it authorises a person should apply its mind to the facts of the particular prosecution and not leave it to the person authorised to decide whether a particular prosecution should be laid. According to the learned counsel, in this 'behalf' has reference to 'no prosecution..........shall be instituted except........', that is to say, to the particular institution of a certain prosecution in view. It is further contended that this construction is reinforced by the fact that the written consent contemplated by the sub-section is undoubtedly related to each particular prosecution.
I am unable to agree with the construction contended for. The words 'in this behalf' do not bear, in the context, the meaning attributed to them. In my view, they mean no more than the authority vested in the State Government or a local authority is for the purpose of enabling the person to institute a prosecution. The intention appears to be to provide for a delegation by the State Government or a local authority of its power to institute prosecutions under the Act. To construe the section in the way the learned Counsel has asked me to do would defeat the very purpose of this provision for delegation of the power to institute a prosecution. Once authorised to institute a prosecution, the authority so vested in the person is of the same quality and virtue as the power of the State Government or a local authority to institute a prosecution. This is in contrast with a case of a person enabled to institute a prosecution with the written consent by any of the parties enumerated by the sub-section. In my opinion, therefore, the food Inspector in this case was competent to lay the complaint.'
It may appear on a first impression that this decision lays down something which runs counter to the view that we are inclined to take. But on a careful reading of these observations in the context in which they have been made, it appears that these observations have been made by the learned Single Judge in relation to instituting of such prosecutions by a person authorised to institute such prosecutions by the State Government or a local authority. He had not to deal with a question that is posed before us. He had to deal with a question as to whether such general delegation was permissible and the answer was that such delegation was permissible. This decision therefore, in our opinion, does not help the complainant as well as the State.
26. In State of Gujarat v. Ranchhod Bhula Rabari, 6 Guj LR 406 = (AIR 1965 Guj 83), a Single Judge of this Court, Raju, J., after referring to Section 20(1) of the Act, observes: -
'Now, in this particular case, the Municipality has authorised the Chief Officer under Section 20 of the said Act. The Chief Officer has asked the Food Inspector to file a complaint against respondent Ranchhod Dhula (Bhula) Rabari, and the Chief Officer is a person who can give his written consent under Section 20 of the Prevention of Food Adulteration Act, because he is authorised by the local authority. The prosecution was, therefore, perfectly valid, as it was with the consent of the Chief Officer.'
This decision, no doubt, lends support to the argument advanced by Mr. Thakar, if it is found that the authorisation was merely to institute a prosecution and was not to consent to filing of such prosecution. A perusal of the judgment indicates that there is no mention as to the nature of authority given to a person authorised. Brother Sarela, J., has in his referring judgment observed that he had called for the papers of this case and to satisfy himself as to whether authorisation given to the Chief Officer was to institute prosecutions or to consent to filing of such prosecutions. For satisfying ourselves, we have also called for the relevant papers of that case and from the paper-book, we find that the relevant resolution of the Baroda Municipal Borough at Ex. 10 reads as under:-
'It is hereby resolved that Chief Officer B.A. Patel is authorised to file complaints regarding offences under the Food Adulteration Act and in his absence, the Health Officer, Shri V.T. Kothari, is authorised to file such complaints.'
The Chief Officer in his turn, had, by Ex. 9, of that case, consented to the Food Inspector, M.B. Nisaldar, to prosecute Rabari Ranchhod. It is, therefore, evident that Raju, J., has made the aforesaid observations, even though the position was that a person consenting to a particular prosecution was a person merely authorised by a local authority to institute such prosecutions and was not expressly authorised to consent to filing of such prosecutions. But we do not find any specific reference in this decision in relation to it and there is no discussion as to how the conclusion was arrived at. We, therefore, find that that decision is not of much assistance to us for deciding to question that is posed before us.
27. It is significant to note that Raju, J., himself in State of Gujarat v. Mohanlal Chhaganlal, ILR (1965) Guj 391, has taken a contrary view, decided on February 10, 1965. The date of his earlier decision referred to above was 22nd January, 1965. It is no doubt true that the material question that arose for decision was whether general delegation was permissible or authority must be given in the case of each complaint. At pp. 393 and 394, he has made the following pertinent observations: -
'The learned Counsel for the respondent contends that the sanction in this case is not proper. The Chief Officer has given authority to the Food Inspector to file a complaint, and the Food Inspector has filed this complaint.'
After referring to the relevant part of Section 20(1) of the Act, the further observations made are:-
'The contention is that the State Government or a local authority, as the case may be, must in each case pass an order authorising a person in this behalf, and the learned counsel for the respondent relies on Gour Chandra v. Public Prosecutor, Cuttack, AIR 1963 SC 1198, which is on Section 198-B of the Criminal Procedure Code. The Scheme of that section is quite different. It provides that the complaint in writing shall be filed by the Public Prosecutor. Sub-section (3) of Section 198-B of the said Code further provides that 'no complaint shall be made by the Public Prosecutor except with the previous sanction..............It is clear that according to the section, the Public Prosecutor must, before filing a complaint, take the previous sanction. In other words, before filing any complaint, he must take the previous sanction. It is, clear therefore, that the previous sanction must be of a competent person in respect of each complaint. But the wording of Section 20 of the Act is different. It contemplates the institution of prosecutions, and it also contemplates the authorisation by the State Government or a local authority of a person who may institute a complaint by or give written consent for doing so. The expression 'authorised in this behalf' means having authority to file a consent to the filing of a complaint. A person can, therefore, have authority to file a complaint or to give a written consent to the filing of a complaint, although that authority need not be given in the case of each complaint. The Scheme of Section 20 of the Act and the scheme of Section 198-B of the Code of Criminal Procedure are, therefore, different'.
The observations made by Raju, J., himself, in his later decision, support the conclusion that we are inclined to arrive at. In our opinion, those observations are correct observations made by him. The observations made by him in the decision referred to, by us earlier, are not correct. With the greatest respect to Raju, J., we differ from him in respect of those observations made in 6 Guj LR 406 = (AIR 1965 Guj 83) which have been made by him, as pointed out earlier, without assigning any reason for coming to that conclusion.
28. In Criminal Appeal No. 397 of 1966, D/-25-6-1968 (Guj), a Single Judge of this Court, Sompura, J., had to deal with a similar question. The resolution in that case also was the very resolution with which we are concerned in this case as the local authority concerned was this very Municipality and the prosecution was also for selling adulterated honey on this very date, namely, 25th June, 1965. The relevant observations made therein are as under: -
'Mr. Vyas, appearing on behalf of the accused has raised a contention that the consent given by the Health Officer in this case is not by a person who is authorised under Section 20 of the Act. The Relevant portion of Section 20 of the Act provides that no prosecution under the Act shall be instituted except by or with the written consent of a local authority or a person authorised in this behalf by the local authority. Under the circumstances, the prosecution should be launched either by the local authority itself or by a person authorised in this behalf by the local authority or with the consent of such person so authorised by the local authority. It is the case of the prosecution that the Health Officer has been authorised to give consent for prosecution by the local authority, that is, the Bhavnagar Municipality by its resolution dated 11th April, 1963, which is produced at Ex. 5.'
After referring to the contentions of the resolution, Sompura, J., observed: -
'Mr. D.U. Shah, appearing on behalf of the Municipality submitted that the words, 'Prosecution Karvani Satta' in Gujarati are wide enough to include the authority to give consent to the filing of prosecution. In my view, these words are not so wide enough to include the consent for launching prosecution. This phrase provides for the launching of the prosecution by the Health Officer himself. It is one thing to prosecute and another to give consent for prosecution. The words 'Prosecution Karvani Satta' do not indicate that the power for giving consent for launching prosecution was given by this resolution.
Under the circumstances, as the consent for filing prosecution was given by a person who was not authorised by the local authority to give such consent under Section 20 of the Act, the prosecution is bad. Therefore, the appeal is dismissed.'
It is true that in this decision, the problem that is posed before us has not been viewed from different aspects of the case. But at the same time, we are in respectful agreement with the conclusion arrived at by our learned brother Sompura, J., on the grounds mentioned by us earlier.
29. In Criminal Appeal No. 647 of 1966, Criminal Appeal No. 693 of 1966, D/-12-8-1968 (Guj), our learned Brother, B.G. Thakore, J., following the aforesaid decision of Sompura, J., has taken the same view.
30. We are fortified in the conclusion that we are inclined to reach by certain observations made by a Division Bench of this Court in the State of Gujarat v. Gandhi Jayantilal Sankalchand, 5 Guj LR 696 = (1966 Cri LJ 475). We may, at this stage, note that these observations are undoubtedly in the nature of obiter dicta. The question that arose for decision in that case was, whether general authorisation was permissible or not, and the answer given was that such a general authorisation was permissible under Section 20(1) of the Act. M.U. Shah, J., speaking for the Division Bench, analysed this section and made certain observations in paras 6, 7 and 8 as under:
'This section provides for the manner in which and the Courts by which cognizance of offences can be taken under this Act and also specifies Courts which can try the offences under the Act. The section makes provision for institution of a complaint by the State Government or a local authority or by a person authorised in that behalf by the State Government or a local authority. It also makes a provision for institution of a complaint with the written consent of the State Government or a local authority or of a person authorised in that behalf by the State Government or a local authority. The plain meaning of this section is that the prosecution can be instituted by any of the four stated authorities or with the consent of any of these four authorities.
Section 20 may conveniently be divided into two parts. The first part speaks of institution of a complaint by or with the written consent of the State Government or a local authority and the second part speaks of institution of a complaint by, or with the written consent of a person authorised in that behalf by the State Government or a local authority. We are here concerned with the second part of the section in the present matter. Perhaps it may be possible to argue and we do not desire to express any opinion on the question that written consent by the State Government or a local authority under the first part or by a duly authorised person under the second part can have relation to a particular offence committed by a particular person. But this argument obviously cannot be available in the case with which we are concerned here. It is clear that authorisation under the second part can be a general authorisation to institute or give consent to prosecutions for offences under the Act.
The second part enables a general delegation of the power given to the State Government and local authorities under the first part and the words 'authorised in this behalf' appearing in the second part mean authorised to institute, or give consent to, any prosecution for an offence under the Act. The authority cannot be restricted in its scope by relating the expression 'authorised in this behalf' to the words 'an offence' appearing at the beginning of section and it cannot be said that the authorisation must be in respect of each offence.
These observations, which no doubt, are in the nature of obiter dicta, further fortify our opinion regarding a correct analysis of Section 20(1) of the Act. We are, therefore, of the view that if a person who is merely authorised by a local authority or the Central Government or the State Government to institute a prosecution, consents to filing of such prosecutions by some persons like the Food Inspectors, the prosecutions filed by such persons would be bad in law. If such a person is authorised by the Central Government or the State Government or a local authority to consent to filing of such prosecutions and that person to institute a particular prosecution and that person institutes that prosecution, it will be a prosecution filed by a proper and competent person. In the instant case, there is no doubt that the prosecution has been instituted by the Food Inspector whom the Health Officer of the Bhavnagar Municipality had given a written consent. A perusal of the complaint and the endorsement thereon clearly indicates that the papers of this case were sent to the Health Officer by the Food Inspector concerned and after going through these papers, the Health Officer had given such a written consent. The only difficulty that lay in this prosecution was and is that the Health Officer had been merely Authorised by the Bhavnagar Municipality which is undisputedly a local authority within its meaning to institute such prosecutions. There is such general delegation. But it has not authorised the Health Officer to consent to filing of such prosecutions. That authority which is necessary, is wanting, in this case. The consequence of it, in view of the conclusion that we have arrived at, is that the prosecution has not been launched by a proper and competent person.
31. The result is that the prosecution is bad, and eventually, the Court cannot take cognizance of such an offence and try such an offence. The result necessarily would be that the proceedings will have to be droped.
32. As Mr. Vyas succeeds in this preliminary objection taken by him, it is not necessary for us to consider another contention taken by him, that the prosecution had not established by the evidence led by it that the provisions of Section 10, sub-section (7) of the Act, were complied with. That provision is to the following effect:
'Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.'
In the instant case, the evidence of the Food Inspector does not specifically refer to the fact that the sample in question was taken in the presence of panchas. No doubt, he has referred to the panchanama and it has been referred to, in his evidence as Ex. 8. We need not consider in this case as to the consequence that would arise if these provisions of Section 10 of sub-section (7) are not complied with. It is also not necessary for us to consider the submission made on behalf of the complainant as to whether the accused was entitled to take the defence contemplated by Section 19 of the Act when there was no such warranty given as has been contemplated by the proviso found in Rahul Kanna. 12-A of the Prevention of Food Adulteration Rules. We may briefly note that the submission made on behalf of the accused was that there was such a warranty given by his vendor as in the bills under which he came to purchase honey from his vendor from time to time, there was a mention regarding 'pure honey'. It will be more correct to state factually that the mention made was that this particular vendor was a merchant dealing in 'pure honey'. We need not dilate on this point in view of our conclusion that the trial Court had no jurisdiction to take cognizance of this offence and try this offence, the complaint having been not lodged by a proper and competent person.
33. We will be failing in our duty if we do not put on the record that we have received valuable assistance from both the sides in this case.
34. The result is that the prosecution having been not launched by a proper person, is bad in law and the proceedings have to be dropped.
The proceedings are, therefore, ordered to be dropped, and the appeal is accordingly disposed of.
35. Orders accordingly.