V.K. Mehrotra, J.
1. Criminal Revision No. 20 of 1985 (Rattan Lal v. State of Himachal Pradesh) was filed in this Court on April 4, 1985. Rattan Lal was convicted by the Chief Judicial Magistrate, Bilaspur, under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for brief 'the Act') by judgment and order dated November 17, 1984. He was sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/-. The offence found proved against him was of selling adulterated cow milk to the Food Inspector. In appeal, the conviction was upheld by the learned Sessions Judge, Shimla, on March 22, 1985. The sentence awarded to the petitioner was also upheld.
2. The sample of milk was found to be adulterated by the Public Analyst on account of the fact that the milk fat was found to be only 2.6% which was deficient by 29% than the minimum prescribed standard. One part of the sample was also sent, as per the request of the petitioner, to the Central Food Laboratory. It was found to be adulterated, inasmuch as, it had only 2.6% fat and solids (Nonfat 6.6%.) The contents of fat were found to be the same as had been found by the Public Analyst. There was, however, a different in the result of the analysis by the two authorities in regard to milk solids non-fat. The Public analyst had found the solids non-fat to be 9.6%.
3. The petitioner has taken several grounds in the memorandum of revision. One of the grounds is that the variation to the extent Of 3.0% of milk solid non-fats in the two reports showed that the sample of milk was not a representative sample. The revision was heard in part by one of us (V.P. Bhatnagar, J.). On March 28, 1989, one of the submissions made was that after the receipt of the report from the Director, Central Food Laboratory, a fresh sanction for the prosecution was necessary to be obtained and, inasmuch as, it had not been obtained, the whole proceedings were vitiated. This question had already been referred for consideration by a larger Bench in Criminal Revision No. 104 of 1986 (Meher Chand v. State). The case, therefore, was directed to be heard along with that revision petition.
4. In Criminal Revision No. 104 of 1986 (Meher Chand v. State), the facts are these :
The Government Food Inspector visited the business premises of petitioner Mehar Chand, who was running a Karyana shop, on October 26, 1982 and purchased a sample of hard boiled sugar confectionery from Mehar Chand, who had 5 Kgs. thereof in his possession. Out of the 900 gms. of hard boiled sugar confectionery purchased by the Food Inspector, three samples were prepared. On analysis by the Public Analyst, the sample was found to contain an orange coal tar-dye, other than the prescribed one, rendering the sample to be adulterated. The petitioner was prosecuted. He requested that the opinion of the Director, Central Food Laboratory be also obtained. Second part of the sample was sent to the Director. The report of the Director showed that the sample was adultered, though for different reasons. The Director found that it contained ash insoluble in dilute HC1 more than the maximum prescribed limit. It also contained mineral oil.
5. The Chief Judicial Magistrate, Hamirpur, who tried the case, convicted Mehar Chand for an offence under Section 16(1 A)(i) of the Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-. This was by an order of May 20, 1985.
6. In appeal, the learned Sessions Judge, Hamirpur, set aside the conviction of Mehar Chand by his judgment dated September 26, 1986. He remanded the case with the direction to frame fresh charge against Mehar Chand and to hold trial in accordance with law. In the opinion of the learned Judge, it had become necessary to do so because Mehar Chand had been charged for the offence under Section 16(1)(a) after the receipt of the report from the Public Analyst, yet as had been convicted for an offence under Section 16(1A)(i) which was an offence of a different nature. The learned Sessions Judge felt that after the receipt of the report from the Central Food Laboratory, the report of the Public Analyst stood superseded and the accused was liable to be charged only on the basis of the report of the Director, Central Food Laboratory.
7. One of the submissions, which had been made before the learned Sessions Judge, was that a fresh consent for the prosecution of Mehar Chand was necessary after the receipt of the report of the Director, which held the sample to be adulterated on grounds entirely different from those on which the Public Analyst had held it to be adulterated. The argument was not accepted. To quote the words of the learned Sessions Judge '....In the present case, the report of the Director, Central Food Laboratory is dated 19-3-83. After the receipt of this report, the Food Inspector was fully authorised to file the complaint and he did not require any written consent of the Chief Medical Officer.....'. The decision of this Court in Voltas Limited v. The Food Inspector Chamba, ILR (1985) Him Pra 796 was distinguished by the Sessions Judge on the ground that the complaint in Voltas case was returned to the Food Inspector as the initial complaint was filed by him on 14-7-1983 and after the opinion of the Director, Central Food Laboratory dated 19-8-1983, the Food Inspector could file a fresh complaint only with the written consent of the Chief Medical Officer in view of the Government notification mentioned therein. In the case of petitioner, Mehar Chand, the position was entirely different.
8. The case of Mehar Chand was heard by R.S. Thakur, J. He found it difficult to agree with the view taken by another learned single Judge (V.P. Gupta, J.) in the case of M/s. Voltas Limited. Consequently, by a detailed order dated May 22, 1987, he directed the matter to be placed before the Chief Justice for appropriate orders being passed for the reconsideration of the decision in M/s. Voltas Limited. Thereafter, two of us (V.P. Bhatnagar and Bhawani Singh, JJ.) heard the matter on May 11, 1989, and passed the following order :--
'Heard. We are of the view that the questions raised in Reference Order dated May 22, 1987, by a learned single Judge are of considerable importance. The reasons which necessitated the making of the Reference have been elaborately stated in that order. We direct that this case be placed before the Hon'ble Chief Justice for constituting a Full Bench for hearing the Reference in question.'
9. Thereafter, both the cases were listed before this Full Bench and were heard on June 2, 1989.
10. The question which merits decision is this :
Can the Court proceed with a case in which it had taken cognizance of the offence on the basis of a complaint instituted with a valid written consent under Section 20(1) of the Act in respect of sample of food found to be adulterated by the Public Analyst for certain reasons, without there being a fresh written consent, in regard to the nature of adulteration, later found in the sample by the Director of Central Food Laboratory, which is different from that found earlier by the Public Analyst.
11. The submissions which have been made before us by Shri D.D. Sood, appearing for Mehar Chand and Shri K.D. Sood, appearing for Rattan Lal, in these cases may be noticed at this stage. They have urged that the grant of written consent for prosecution of an offender under the Prevention of Food Adulteration Act is not a matter of mere formality. It requires application of mind by the appropriate authority to the facts of a particular case before it gives the requisite consent. As such, a consent given on the basis of adulteration found for the reasons noticed by the Public Analyst cannot enure for continuance of the criminal proceedings against the offender where the Director, Central Food Laboratory, finds the sample to be adulterated for different reasons. The authority is not obliged to give consent for the prosecution of an offender under Section 20 of the Act. He can withhold the consent in a number of circumstances. For example, it may be found that the launching of prosecution was not in public interest, having regard to the trivial nature of adulteration, or that the prosecution was bound to fail due to some procedural flaw in the collection of the sample or its examination or on account of some judicial decision. It may also be withheld on account of some policy decision which might have been taken by the Central or State Government to the effect that prosecution be not launched in respect of the adulteration of the nature found by the Director. The authority may also withhold its consent for the prosecution of an offender where it finds that the report that the sample was adulterated was not correct having regard to the standards prescribed or where it finds that no standard had been prescribed for an article of food involved in the case. It may also withhold the consent where it is found that the adulteration noticed by the Director may have occurred on account of the lapse of time between the date of the taking of the sample and the date when it came to be examined by the Director and the case may thus be covered by the proviso to Section 2(ia)(m) of the Act. Since the earlier report of the Public Analyst is superseded, that is, effaced for all purposes by the subsequent report of the Director, the factors emerging from the report of the Director, Central Food Laboratory, should be considered by the appropriate authority afresh for deciding whether the prosecution should be permitted to continue or not.
12. The learned counsel brought to our notice a number of decisions in support of the submission aforesaid. We will notice them later. We may, however, first read the relevant provisions of the Act.
13. The prevention of Food Adulteration Act, 1954, had been enacted as 'An Act to make provision for the prevention of adulteration of Food'. Section 2 is the definition section in which 'food' has been defined in Sub-section (v) to mean 'any article used as food at drink for human consumption other than drugs and water'. It also includes the articles mentioned in Clause (a),(b) and (c). An article of food is deemed to be adutlerated in the circumstances enumerated in Clause (ia), which contains the definition of the word 'adulterated'. Sub-section (viiia) defines 'Local (Health) Authority' to mean an officer appointed by the Central Government or the State Government, by notification in the official Gazette, to be in charge of Health administration in such area with such designation as may be specified therein. Section 4 provides for the establishment of Central Food Laboratories by the Central Government. It also enables the Central Government to make rules prescribing the functions etc. of the Laboratory. Section 7 says that no person shall himself or by any person on his behalf manufacuture for sale, or store, sell or distribute any adulterated food or any article of food the sale of which is for the time being prohibited by the Health Authority in the interest of public health or any article of food in contravention of any other provision of the Act or of any rule made thereunder. The Central as well as the State Government have been authorised to appoint Public Analysts having prescribed qualifications for local areas assigned to them by these Governments. Section 8 provides for appointment of Food Inspectors by the Central Government while Section 10 provides for the powers of the Food Inspector. Section 11 deals with the procedure to be followed by the Food Inspectors. It enjoins that when the Food Inspector takes a sample of food for analysis he would divide the same into three parts except in special cases provided by the rules and send one of them for anyalysis to the Public Analyst. The remaining two parts are to be sent to the Local (Health) Authority. Section 12 permits a purchaser of any article of food to have it analysed by the Public Analyst. The purchaser has to inform the vendor, at the time of purchase, of his intention to have the article so analysed. Certain procedural safeguards, which are to be observed by the Public Analyst, are also to be observed by the purchaser in such a case.
14. Section 13 relates to the report of the Public Analyst. The report of the result of the analysis of any article of food made by him is to be submitted by the Public Analyst in a prescribed form to the Local (Health) Authority. A copy of the report of the analysis is to be forwarded by the Local (Health) Authority to the person or persons from whom the sample of article of food was taken, after the institution of prosecution against them, informing them that they may make an application to the Court, if it is so desired, to get the sample of the article of food analysed by the Central Laboratory. When a request is made to the Court, where the prosecution is pending, the Local (Health) Authority is under an obligation to forward the sample to the Court on requisition by it. The Court will then send the sample to the Director of Central Food Laboratory and shall not continue with the proceedings pending before it in relation to the prosecution until the receipt of the certificate of the result of the analysis from the Director. The certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. The report shall be final and conclusive evidence of the facts stated therein. Section 16 enumerates the offences and the penalties therefor. Section 20, which deals with the cognizance and trial of offences, says :
'20. Cognizance and trial of offences. --
(1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14-A shall be instituted except, by or with the written consent of, the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government :
Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the public analyst along with the complaint.
(2) No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Sub-section (1-AA) of Section 16 shall be cognizable and non-bailable.'
Section 22-A enables the Central Government to give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of the Act and provides that the State Government shall comply with such directions. Section 23 enables the Central Government to make rules to carry out the provisions of the Act. In Sub-section (1 A), it is provided that the rules may provide for all or any of the matters mentioned in various clauses of this sub-section. Section 24 empowers the State Government to make rules for giving effect to the provisions of the Act in matters not falling within the purview of Section 23.
15. A look at Section 20 shows that a prosecution for an offence under the Act (except for an offence under Sections 14 and 14-A) cannot be instituted except by, or with the written consent of, the Central or the State Government or a person authorised in that behalf, by general or special order by the Central Government or the State Government. This is clear from Sub-section (1) of Section 20. Thus, the prosecution may be instituted by the Central Government or by the State Government. In that event, no written consent is contemplated. Where, however, the prosecution is initiated by a complaint filed by someone other than the Central or the State Government itself, there should be a written consent for such prosecution either by the Central Government or the State Government or by a person authorised in this behalf by the Central or the State Government by general or special order.
16. Normally, the complaint for initiating the prosecution is filed by the Food Inspector. In that eventuality there has to be written consent, for the initiation of the prosecution, of the Central or the State Government or of a person authorised in that behalf by the Central or the State Government. Of course, a purchaser can also initiate a prosecution by instituting a complaint on production of a copy of the report of the Public Analyst in the Court along with the complaint.
17. The provision for a 'written consent' by the authorities contemplated by Section 20(1) was enacted as a safeguard against irresponsible and frivolous initiation of proceedings against the person from whom a sample of food is collected. The provision is 'intended to safeguard the liberty of a citizen against a vexatious or unreasonable prosecution. The law puts a brake on such prosecutions by authorising a responsible officer of the Government to apply his mind cogently and intelligently to satisfy himself that the facts warrant a prosecution.......' (Lachham Singh v. State, 1979 FAJ 23 : (1979 Cri LJ NOC 2) (All). As observed by the Supreme Court in State of Bombay v. Parshottam Kanaiyalal, AIR 1961 SC 1 : (1961 (1) Cri LJ 170) (in paragraph 13) :
'........ The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecutions against traders. It, therefore, provides that the complaint should be filed, either by a named or specified authority or with the written consent of such authority. To read by implication that before granting a written consent, 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 before a Court appears reasonable .........'.
18. And, in A.K. Roy v. State of Punjab (1986) 3 FAC 66 : (1986 Cri LJ 2037) (SC). (In paragraph 9) (of (1986) 1 FAC) : (Para 11 of 1986 Cri LJ) that :--
'......... The terms of Section 20(1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in the public interest.'
19. The Supreme Court, which said in Isher Das v. State of Punjab AIR 1972 SC 1295 : (1972 Cri LJ 874) (Para 10) that :--
'Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the article of food...........'
Sounded a note of caution in Pyarali K. Tejani v. Mahadeo Ramchandra Dange, AIR 1974 SC 228 : (1974 Cri LJ 313), when, speaking through Krishna Iyer, J. a constitution Bench of the Court observed (in para 23) that :--
'We are not unmindful of the possibilities of village victuallers and tiny grocers being victimised by dubious enforcement officials which may exacerbate when punishment become harsher, and the marginal hardships caused by stern sentences on unsophisticated small dealers.'
20. It is obvious that to avoid victimisation of a suspected offender by 'dubious enforcement officials' the salutary provision of a written consent by the designated authorities mentioned in it was contemplated by the Legislature when it enacted Section 20(1).
21. The importance of the provision relating to sanction, in the context of the prosecution of a government servant, was considered by the Supreme Court in Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677 : (1979 Cri LJ 633). What was said in para 3 of the report was that :
'The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution and must, therefore, be strictly complied with before any prosecution can be launched against the public servant concerned........'
22. The word 'written consent' used by the Legislature in Section 20(1) of the Act should bear a similar interpretation. The Imperial Dictionary of the English Language, by John Ogilvie (New Edition 1904) defines 'consent' as meaning 'to grant; to allow; to assent to; a voluntary accordance with what is done or proposed to be done by another.......'. In Bouvier's Law Dictionary, Baldwin's Century Edition, 1948, 'consent to' means 'approve of. In the Dictionary of English Law by Earl Jowitt 'consent' has been defined (at page 455) as 'an act of reason accompanied with deliberation'.
23. 'Section' has been defined in the Imperial Dictionary of English Language (by Ogilvie) as an official act of a superior by which he notifies and gives validity to the act of some other person or body, Basically, thus, the giving of a sanction implies application of mind by the authority concerned to the facts of a case. It involves mental exercise similar to the one which is involved in according consent. It follows, therefore, that the object of a provision for a written consent before a prosecution can be launched against an offender under the Act is akin to the one like the provision for there being a sanction as a pre-condition for prosecuting a public servant.
24. The language in which Section 20(1) is couched merits another look at this stage. It says that 'no prosecution for an offence under this Act.... shall be instituted except by, or with the written consent of, ............a person authorised in this behalf .........by the Central Government or the State Government'. Prosecution for 'an offence under the Act can be instituted only with the written consent of a person authorised in that behalf by the Central or the State Government. The words 'for an offence under this Act' used in Sub-section (1) of Section 20 provide the clue to the answer for finding which this Bench has been constituted. They are the key words used by the Legislature.
25. Section 7, as seen earlier, prohibits the manufacture for sale or storage or sale or distribution by a person himself or by any person on his behalf of any adulterated food. The section also contains other prohibitions with which we are not concerned in these cases. The Explanation to the Section says that a person shall be deemed to store any adulterated food if he stores such food for the manufacture therefrom of any article of food for sale.
26. Section 2(ia) provides that an article of food shall be deemed to be 'adulterated' in the following circumstances :
'(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animals or vegetable substance or is insect infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits or variability;
(k) if the article contains any prohibited preservative in excess of the prescribed limits;
(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;
Provided that, where the quality or purity of the article, being primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation............'
Coming then to Section 16 we find it stated in Sub-section (1), in the context of sale etc. of an article of food which is adulterated, that subject to the provisions of Sub-section (1-A) if any person --
(a) whether by himself or by any other person on his behalf, imports into India or manufacture for sale, or stores, sells or distributes any article of food --
(i) which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by any order of the Food (Health) Authority;
(ii) other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or
(b) to (g)...................................'
shall, in addition to the penalty to which he may be liable under the provisions of Section 6 be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees :
Provided that --....................................'
Sub-section (1-A) then says that :
'if any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes,--
(i) any article of food which is adulterated within the meaning of any of the Sub-clauses (e) to (1) (both inclusive) of Clause (ia) of Section 2; or
(ii) ........................................
he shall...... be punishable with imprisonment which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees :
Provided.........................'
27. Prevention of Food Adulteration Rules, 1955 have been framed by the Central Government Under Section 23.
28. Part III of these Rules, dealing with the definitions and standards of quality, provides in Rule 5 that :
'Standards of quality of the various articles of food specified in Appendix-B to these rules are defined in that Appendix.'
Part VI consisting of Rules 23 to 31 deals with the colouring matter, that is, the colouring matter which can be added to an article of food as well as those which are prohibited. Part VIII contains prohibition on sale of certain admixtures and provisions for regulating sales of certain articles. Part X deals with the conditions governing the use of preservatives in food articles. Part XIII deals with flavouring agents and related substances.
29. Appendix B, referred to in Rule 5, contains definition of standards of quality. It contains a large number of entries about articles of food and their standards beginning with entry of 'beverages non-alcoholic' at item No. 01. It goes on to describe articles of various kind till entry A. 20.01 'Toddy'. In each of the entries is indicated the definition of the article together with what it should contain and what it should not contain.
30. The offence for which penalty is provided in Section 16, amongst others, consists of sale of an article of food which is adulterated within the meaning of Clause (m) of Section 2(ia) or is adulterated within the meaning of Clauses (e) to (1) of that sub-section.
31. Written consent for initiating prosecution is to be accorded by the appropriate authority for the sale of an adulterated article of food as contemplated by these provisions. The authority is, therefore, required to examine the circumstances of a case, before giving its consent for the prosecution of an offender, with reference to the offence alleged to have been committed by him. Adulteration is the genus. Adulteration of a particular nature found in an article of food, exposed for sale or sold by an offender is the specie of the offence which is allegedly committed by the offender for which he is to be brought to trial according to the scheme of the Act and the Rules.
32. The report submitted by the Public Analyst may reveal that the article of food was adulterated on account of its variation from the prescribed standard by reason of presence or absence of some specific object in it. When deciding upon the grant of consent for the prosecution of the offender, the authority is to apply its mind on the basis of the sample being adulterated for that particular reason. The presence or absence from the sample of such of the contents, as may be contemplated by the entry relating to a particular article of food in Appendix-B, may be the reason for declaring it to be adulterated. The consent for the prosecution of the offender would be founded upon the adulteration of the sample on that account.
33. When the sample is examined at the Central Food Laboratory, at the request of the offender, it may be found to be adulterated on account of the presence or absence therefrom of contents of a nature similar to the one for which the sample was found to be adulterated by the Public Analyst. In such a case, application afresh of the mind of the authority, Under Section 20(1) to the report of the Director of the Central Food Laboratory, for deciding whether the prosecution initiated against the offender should be continued or not, would be absolutely unnecessary.
34. There may be cases where the Director may find the sample to be adulterated for the presence or absence of contents for which it had been found to be adulterated by the Public Analyst, though there might be some difference in the quantity or percentage of the contents in the two reports. In that case too, we feel, it would be an unnecessary exercise on the part of the authority, which had granted consent for the prosecution of the offender, to re-examine the matter with a view to decide whether the prosecution of the offender should continue or not. Of course, the quantitative difference of the contents should not be such which may have the effect of changing the nature of the offence, that is, the deficiency or addition of the percentage of any pre-existing content of the sample, from the one found on analysis by the Public Analyst, should not be such, when the sample is later examined by the Director, as to result in a qualitative difference in the nature of adulteration so as to bring the offence into some other specie altogether.
35. A consent for prosecution is to be given in respect of a particular offence committed by the alleged offender. This has been interpreted to mean that where the consent is based upon an adulteration of a particular nature found by the Public Analyst, it would not enure for the benefit of the prosecution in respect of a different kind of adulteration found by the Director in the sample. For example in State of Maharashtra v. Nuzamuddin Haji Mohamed Kasam, 1979 Cri LJ 274, a sample of a drink named 'Real Falsa' was found to be adulterated by the Public Analyst as containing prohibited colour. The sample was found to be adulterated by the Director for a different reason as containing saccharin beyond the prescribed limitation. A single Judge of the Bombay High Court felt that the charge on the basis of the report of the Director could not be framed unless consent from the appropriate authority was obtained afresh. Ultimately, the view taken was that the complaint should be returned to the complainant for appropriate action after the receipt of the report of the Director.
36. In Municipal Board, Jaunpur v. Raghunandan Ram, (1979) 1 FAC 246, a Division Bench of the Allahabad High Court ruled that the respondent could not be convicted where the Public Analyst found the sample of asafoetida to be adulterated as its total ash content was 36.10 per cent as against the maximum of 15 per cent permissible under the rules but the Director found that the total ash content was only 4.5 per cent (far less than the prescribed maximum) but the same was adulterated for a different reason, namely, that the alcoholic content was only 5.7 per cent as against the minimum of 25 per cent required. The Bench upheld the order of acquittal passed by the court below. To borrow the words of the Bench (in para 4) :
'In our opinion, however, the order of acquittal of the respondent is justified on the short ground that in the complaint, on the basis of which proceedings were initiated against the respondent the only ground taken was the report of the Public Analyst with regard to the ash content..... This was the basis on which the Magistrate took cognizance of the case.... this was the case which the respondent was called upon by the Magistrate to meet. This ground, however, failed in view of the Director's report....... liability eventually was sought to be fastened on the respondent on an entirely different ground..... that the alcoholic content was not up to the minimum prescribed...... we may point out that Section 20 contemplates that the precise ground on which prosecution is launched should be stated clearly in the complaint, and since the ground mentioned in the present complaint was negatived by the report of the Director, the bottom was knocked out of the prosecution case, as stated in the complaint.'
37. Following the view taken by the Allahabad High Court in the aforesaid case, as also the one taken by V.P. Gupta, J. in M/s. Voltas Ltd. (ILR(1985) Him Pra 79.6), a single Judge of the Punjab and Haryana High Court held in N.S. Jain v. State of Punjab, (1987) 1 FAC 127 that a complaint filed on the basis of the report of the Public Analyst which said that the sample of Ghee was adulterated because in it the Butyro refractometer reading was 39.20 against the minimum prescribed standard of 40'C could not ,be made the basis for continuing with the prosecution where the report of the Central Food Laboratory indicated that the Butyro refractometer reading was 40'C conforming to the minimum prescribed standard but the sample was adulterated on account of the presence of five dead insects and suspended non-fatty particles of curd.
38. The Gauhati High Court followed the view taken by the Division Bench of the Allahabad High Court in Raghunandan Ram (1979 (1) FAC 246) and the Bombay High Court in Nizamuddin (1979 Cri LJ 274). A single Judge held in State of Assam v. Subkaran Agarwalla (1987) 1 FAC 99 (Gauh), that the accused, who had been called upon to meet the case of adulteration in 'Dhania' on account of the presence of approximately 30% of foreign pulse and millit starch by the Public Analyst, could not be convicted on the basis of the report of the Director which found the sample to be adulterated under a different sub-section of Section 2(ia) Clause (m) as it was not within the prescribed limits of standards.
39. These decisions support the view that we have taken on the question that a prosecution initiated on the basis of adulteration of one kind found by the Public Analyst in the sample examined by him cannot be justified on the basis of adulteration of a different nature revealed by the report of the Director of the Central Food Laboratory.
40. We may notice some decisions which seem to take a different view. A Division Bench of the Gujarat High Court held in State/ of Gujarat v. Ambala Maganlal, 1978 Cri LJ 1036, that even where the nature of adulteration found by the Director of the Central Food Laboratory is different from the one found earlier by the Public Analyst, the prosecution of the offender can be continued without obtaining fresh written consent. In para 4 the learned Judges observed that if the Court had already framed charge on the basis of deficiency discovered by the Public Analyst, it could amend the charge suitably, disclosing the nature of the adulteration found by the Director. Further, that :
'.....once the written consent to prosecution is given by any of the ......competent authorities...... the institution of prosecution should be regarded as if it is by that authority. No further question as regards the validity of written consent as a result of subsequent event would arise in such a case, where cognizance of offence is taken by the Court.'
41. In the succeeding para 5 they also observed that :
'......the certificate of the Director is only evidence of the offence in the case though conclusive in nature. The consent, once effectively given cannot become invalid, or the cognizance of offence taken upon a valid consent cannot be vitiated merely because the evidence by which the offence is sought to be proved changes as a result of a subsequent event.'
42. The view of the Division Bench was approved by a Full Bench of the Gujarat High Court in Prahladbhai Ambalal Patel v. State of Gujarat, 1984 Cri LJ 1642) by observing (in para 26) that the decision of the Division Bench brought out the correct legal position pertaining to prosecution of accused under the Act. We may observe that the only question which had been referred for the decision of the Full Bench in Prahladbhai Ambalal Patel was :
'Whether, after the report of the public analyst gets superseded by the certificate of the Director, Central Food Laboratory who examines the part of the sample of food article collected under the relevant provisions of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), it is open to the accused to plead that if there is any variance between the aforesaid two reports, the prosecution must explain the said variance or otherwise fail.'
This is found stated in the opening paragraph of the judgment.
43. The Delhi High court dealt with a similar question in Municipal Corporation of Delhi v. Shri Bishan Sarup (1984) 1 FAC 169 (2). The case related to a sample of Ghee. The Public Analyst had found it to be adulterated due to 0.12 excess in the moisture percentage. The Director, however, found the moisture contents within the prescribed limit. He, however, found the Reichert value to be lower and the Butyro refractometer reading in excess of the prescribed limit. The trial Magistrate had convicted the accused. The Addl. Sessions Judge acquitted him in view of the variance in the two reports. An appeal against the order of acquittal was taken to the High Court. The learned Judge of the High Court recorded a finding (in para 10 of the judgment) that :
'On an examination of the record we are of the view that it is possible that the various tests performed by the Public Analyst and the Director gave different results because of defective sampling.'
In the very next paragraph they noticed the submission made on behalf of the Municipal Corporation to the effect that the report of the Director obliterated the report of the Public Analyst so that it was not permissible to look at the report of the Public Analyst. They said that there was no doubt that Under Section 13(3) the report of the Director superseded the report of the Public Analyst but on the peculiar facts of that case it could not be said that the sample was adulterated. Also, that the Addl. Sessions Judge had given benefit of doubt to the accused and they found no sufficient reason to interfere with the order of acquittal. After this the learned Judges observed that they did not agree with the observation of the Addl. Sessions Judge that there was no complaint or a trial on the facts found by the Director, the conviction was vitiated. Also, (in para 13) that :--
'.......the Director found the sample to be adulterated for reasons different to the one given by the Public Analyst would not render the prosecution instituted on the basis of the report of the Public Analyst invalid.'
It is obvious that these observations were in the nature of obiter.
44. In Atma Ram Poddar v. State of Bihar (1984) 1 FAC 120 a single Judge of the Patna High Court was dealing with a sample of Mustard oil. The Public Analyst had found the sample to be adulterated with sesam oil and linseed oil. The Director, however, found that there was no foreign substance of food in the sample. He found the sample to be covered Under Section 2(ia) Clause (m) of the Act. The argument made on behalf of the accused was that the sanction for the prosecution was on the basis of the report of the Public Analyst and there was no sanction for prosecution on the basis of the report of the Director. As such, the prosecution was not valid. The learned Judge observed (in para 6 of the report) that :
'With regard to the absence of valid sanction...... the admitted facts are that the sanction was given on the basis of the opinion of the Public Analyst and no fresh sanction was accorded after the receipt of the opinion of the Director. In the case of State of Gujarat v. Ambalal Maganlal, (1978) 2 FAC 53 : (1978 Cri LJ 1036), a Bench of the Gujarat High Court under similar facts stated that once the consent was effectively given it could not become invalid merely because the analysis by which offence was sought to be proved i.e., the report of the Public Analyst changes as a result of subsequent event, i.e. the opinion of the Director. I respectfully agree with the legal proposition laid down in that case. It must be held that it is not necessary to give a fresh consent after the receipt of the opinion of the Director and the petitioner can be prosecuted on the basis of the consent already given on the basis of the opinion of the Public Analyst.'
45. Our attention was also drawn to two decisions of the Bombay High Court by learned single Judges.
46. In Mukund Ukha Shimpi v. Premji Durgarai Shah (1982) 2 FAC 88, the trial Magistrate had acquitted the accused on the ground that no offence was disclosed on the basis of the report of the Public Analyst who had found that the sample was not adulterated and it was only after the receipt of the report from the Central Food Laboratory at Calcutta that the sample was found to be adulterated. The Magistrate felt that it was necessary for the Chief Officer of the Municipal Council to grant fresh sanction and for the Food Inspector to file a fresh case and that it was not possible to continue the prosecution which was launched earlier. The learned Judge of the Bombay High Court felt that this was a fallacious ground. This is what he observed (in para 5) :
'........The institution of the prosecution ......was in no manner defective. The report from Calcutta was obtained by the complainant merely as a piece of evidence to support the prosecution case. The trial Magistrate was clearly in error in assuming that the offence could be said to have been committed only when the report was received from Calcutta. As mentioned hereinabove, the offence is complete as soon as the vendor sells an article of food, which according to the complainant was adulterated. Whether the claim of the complainant is correct or not is to be determined by competent Court and commission of an offence is not made dependent on the report of the Public Analyst or one received from the laboratory at Calcutta. The institution of the criminal case before the Magistrate after obtaining the permission of the Chief Officer was perfectly in order and it was not necessary for the Food Inspector to secure a fresh approval from the Chief Officer after the receipt of the report from Calcutta......'
47. We may also mention that the Food Inspector had obtained permission from the Chief Officer to prosecute the accused even though the report of the Public Analyst was that the sample was genuine and not adulterated. It was after the complaint had been lodged that the Food Inspector moved the Magistrate to forward one of the sealed samples to the Director Central Food Laboratory.
48. In State of Maharashtra v. Dhyan Deo Ramchandra Patil (1983) 1 FAC 9, another single Judge of the Bombay High Court held that it was not necessary to obtain fresh sanction after the receipt of the report of the Director. It was a case where a sample of buffalo milk was found adulterated by the Public Analyst on the ground that it contained 43.33% added water and did not conform to the standard of the buffalo milk. The Director of the Central Food Laboratory, however, found that the sample was adulterated for a different reason. The learned Judge negatived the submission that the prosecution was vitiated for want of fresh sanction because the authority concerned had not applied its mind in respect of the report of the Director of the Central Food Laboratory. In para 8 it was observed that :
'.......There is no warrant for the view that a fresh sanction to prosecute is required after the receipt of the report from the Central Food Laboratory. This piece of evidence is made available only in case an accused exercises his right to get the article of food reanalysed by a different laboratory. This does not affect or alter the basis of the prosecution for which the sanction was granted.'
49. In neither of these cases was the attention of the learned Judges deciding them, drawn to the earlier decision of the Bombay High Court in the case of Nizamuddin, 1979 Cri LJ 274.
50. The contention that whenever there is a variance between the report of the Public Analyst and that of the Director of the Central Food Laboratory in regard to the nature of adulteration, the prosecution could not be continued without obtaining a fresh written consent from the appropriate authority, as a bald proposition of law, does not find support from any of the decisions cited before us. The question, we feel, is to be determined having regard to the difference in the nature of adulteration of the sample as found by the Public Analyst and by the Director,
51. We may reiterate what we have said in the earlier part of the judgment. We are clearly of opinion, that where the report of the Director finds the sample to be adulterated for a reason, though different from the one found by the Public Analyst, which does not alter the nature of the offence in the sense of bringing about a change of specie for which it is punishable Under Section 16 of the Act, there is no necessity of seeking a fresh written consent for continuance of the proceedings against the offender. Where, however, the difference in the two reports is such that it results in altering the basic nature of the offence, in the sense of the specie thereof, for which the consent was obtained earlier on the basis of the report of the Public Analyst, the complainant must bring the facts found by the Director to the notice of the appropriate authority for a decision whether the offender deserved to be prosecuted or not.
52. We are not impressed by the submission made by Shri M.S. Guleria, learned Assistant Advocate General, that consent having been given for instituting the proceedings on the basis of the report of the Public Analyst, which found the sample to be adulterated, no fresh consideration of that question was called for at all as the offence with which the offender was charged was one of the sale etc. of an adulterated article of food. Also, that the report of the Director being only a piece of evidence, like the report of the Public Analyst, in support of the case of the prosecution against the offender, the change noticed by the Director would only provide evidence of the guilt of the offender and no more. The report of the Director would supersede that of the Public Analyst. The only difference, after the receipt of the report of the Director, for the prosecution would be that it would not be able to rely upon the report of the Public Analyst, as a piece of evidence in support of its case against the offender and would have to content itself with the report of the Director.
53. The acceptance of the submission of the learned Asstt. Advocate General would result, as it were, in negating the very object of the provision for obtaining a written consent from one of the authorities mentioned in Section 20(1). We have noticed earlier, with reference to some pronouncements by the Supreme Court, that the object of incorporating the provision for a written consent in Section 20(1) of the Act was to prevent the launching of frivolous or harassing prosecution against the traders and that the persons authorised can only give his consent in writing when he is satisfied that the launching of the prosecution was in public interest. Also, that the grant of sanction was not an idle formality. It implied the necessity of application of mind on the part of the authority, competent to grant the written consent, for its satisfaction that a prima facie case existed for the alleged offender to be put up before a Court and that it was reasonable, in the circumstances, to direct that he be tried by the Court.
54. The object aforesaid pre-supposes a consciousness on the part of the Legislature that it was not necessary, even where a sample was found to be adulterated, to prosecute the alleged offender. The instances where it may not be expedient to prosecute him, in spite of the sample being found to be adulterated, can be myriad. Some of these circumstances were outlined by the learned counsel for the petitioners before us. We have noticed them earlier in this judgment. Those circumstances were placed before us by the learned counsel on the basis of some of the provisions of the Act itself and also on the basis of some judicial pronouncements.
55. Illustratively, we find it provided in Section 2(ia) itself, in the proviso appended after Clause (m) that where the quality or purity of the article, falling below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of Sub-clause (m). This is a clear indication that the nature of adulteration which is discovered by the Director in the sample, different from that found by the Public Analyst, may have been the result of the lapse of time occurring between the taking of the sample and its examination by the Director.
56. Section 13(2-E) which reads thus :
'(2-E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under Sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of Sub-sections (2) to (2-D) shall, so far as may be apply.'
is a pointer to the fact that it is not necessary, for an authority contemplated by Section 20(1) to accord written consent for the prosecution of an alleged offender as a matter of course. It is not necessary that the Local (Health) Authority must always treat the report regarding the adulteration made by the Public Analyst to be sacrosanct. It can look into its correctness or otherwise. If it feels that the report is erroneous, it can seek fresh information from another Public Analyst. This power must be conceded, by necessary implication, to the authority competent to grant written consent Under Section 20(1). Obviously, the Act does not contemplate the grant of written consent for the prosecution of an offender as a matter of routine. There is no justification for holding' that the consent must be presumed to be available for continuance of the proceedings against an alleged offender even in a case where the subsequent report of the Director shows that the nature of adulteration was so trivial that it would not be in public interest to continue with the prosecution instituted on the basis of a consent given after consideration of the report of the Public Analyst. If that be so, a fresh look on the question whether the prosecution should be continued or not is called for by the appropriate authority after the receipt of the report of the Director.
57. There may be a procedural flaw committed in the collection, storage or examination of the sample on the ground whereof the prosecution was liable to fail. There might be a case where it is found that on the defects noticed by the Director in his report the article of food could not be characterised to be adulterated for the reason that the variance from the prescribed standards was of a minimal nature which, on account of some judicial decision, could not lead to a successful prosecution of the offender. There may have come into existence a direction of the Central Government that prosecution be not launched in cases where adulteration was found only to that extent. An instance of this nature is to be found in the decision of a learned single Judge of this Court in Brooke Bond India Limited v. State of H.P. ILR (1984) Him Pra 76 : (1984 Cri LJ 1201). In that case, sample of tea was found to conform to the standard laid down for it but traces of iron filings were detected which were not shown to affect injuriously the nature, substance or quality of tea. The Central Government had directed the State Governments that no prosecution be launched under the Act in cases where samples of tea were containing iron filings up to a tolerance limit of 250 parts per million in quantity. In the case of this nature it would not be unreasonable to hold that after the report of the Director, pointing to a defect of that nature, the prosecution launched on the basis of written consent given on consideration of the report of the Public Analyst should not be permitted to continue without re-examining the question whether it should be allowed to go on.
58. There may be a case where the standards may have been prescribed for a particular article of food which may not be sufficiently publicised or become known to the traders. In such a case, as a policy decision, it may be decided not to prosecute the traders for sometime. If the Director, differing from the Public Analyst about the nature of adulteration, finds the sample to be adulterated as not conforming to the recently laid down standards, it would be unjust to permit the prosecution to be continued against the offender without a fresh consideration by the appropriate authority of the question whether it should be allowed to go on. The desirability and propriety of launching prosecution is one of the factors which has to be kept in mind by the authority giving written consent for prosecution. The policy decision of the State Government, which is competent Under Section 20(1) to launch a prosecution itself, may be a factor which cannot be ignored by the authority while considering the question of grant of written consent. The defect found in the sample by the Director may be such as may be covered by a policy decision not to prosecute an offender for the adulteration of a particular nature in respect whereof the standards were not well known to the traders at the relevant time.
59. In is not possible to give any exhaustive list of the circumstances, consequent upon the nature of adulteration found by the Director, where the question of continuance or otherwise of the prosecution may have to be considered afresh. We have only noticed some illustrative grounds calling for a re-consideration of the matter after the receipt of the report of the Director.
60. The submission that the report of the Director supersedes that of the Public Analyst will also not be of much help to the learned Asstt. Advocate General. The supersession cannot be deemed to have taken place with effect from the date of the report of the Public Analyst on the basis whereof written consent for the prosecution was initially granted. Once the report of the Director is available, the report of the Public Analyst cannot be looked into for any purpose. It shall stand replaced by the report of the Director. The law in the respect was rightly stated by a Full Bench of the Kerala High Court in Mathukutty v. State of Kerala (1987) 2 FAC 293 : (1988 Cri LJ 898) when it said that (at p. 903 of Cri LJ) :
'even if there is a wide variation between Director's certificate and Analyst's report, the former superseders the latter and the superseded report cannot be revived for any purpose.'
The statement represents the true scope of Section 13(3) of the Act. It, however, does not mean that supersession will be deemed to have taken place from the date of the report of the Public Analyst so as to sustain the continuance of the prosecution instituted on the basis of a written consent given on consideration of the report of the Public Analyst. If such a deemed provision was intended, the Legislature could have said so. Admittedly, it has not done so. The obliteration of the report of the Public Analyst will be deemed to have taken effect only from the date when the report of the Director came into existence and not from any earlier date.
61. The decision in Chetumal v. State of Madhya Pradesh, AIR 1981 SC 1387 : (1981 Cri LJ 1009) is hardly of any assistance to the learned Asstt. Advocate General. That was a case where the certificate of the Director of the Central Food Laboratory to the effect that the sample was adulterated was excluded from consideration by the trial court on the ground that 'the specimen impression of seal' did not tally with the seal of the container in which the sample had been sent to the Director. The trial Court sustained the objection but relied upon the report of the Public Analyst and convicted Chetumal. The conviction was upheld by the Sessions Judge as well as by the High Court. The Supreme Court set aside the conviction with the following observations (para 2) :
'........Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be Convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded.'
62. The proviso to Section 20(1) permits a purchaser referred to in Section 12 to institute a prosecution for an offence under the Act if he produces in Court a copy of the report of the Public Analyst along with the complaint. Merely because such a right has been given to a purchaser, it cannot be urged with any legitimacy, as was attempted by the learned Asstt. Advocate General, that a fresh written consent was not envisaged after the report of the Director where it finds adulteration of a different nature than the one found by the Public Analyst. When a prosecution is launched by a public functionary, the object for which the provision for a written consent is made Under Section 20 (1) cannot be permitted to be defeated on account of a provision enabling a purchaser to institute prosecution by filing a complaint. To recall the words of the Supreme Court in Parshottam Kanaiyalal AIR 1961 SC 1 : (1961 (1) Cri LJ 170) '........the rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecution against traders......' and' in Pyarali K. Tejani AIR 1974 SC 228 : (1974 Cri LJ 313) that :
'We are not unmindful of the possibilities of village victuallers and tiny grocers being victimised by dubious enforcement officials.'
63. In M/s. Voltas Ltd. ILR (1985) Him Pra 796, V.P. Gupta was dealing with a case where a sample of food known as 'Meal Chunks' was in question. The report of the Public Analyst dated June 15, 1983, disclosed that 'the batch number, month and year of manufacture was not mentioned on the label of the article of the food'. The Food Inspector filed a complaint on July 14, 1983. The sample was, thereafter sent to the Central Food Laboratory. In the report dated August 19, 1983 the opinion expressed by the Director was :
'The detailed standard for Textured vegetable protein foods are not laid down in Appendix-B to PFA Rules (1955). The protein content of the product has not been mentioned on the printed carton. The lable of the product which is a proprietary food has also not been approved under Rule 37-A of PFA Rules (1955). The labelling of the product is not scientifically correct and the protein quality of various foods differs and a mere comparison of quantitative protein content of different products is not correct.'
Under Notification No. HFW.B(A-3)-1/81, dated October 17, 1983, the Governor of Himachal Pradesh authorised all Chief Medical Officers in their respective districts to institute legal prosecution or give written consent to institute prosecution. There was no dispute before the learned Judge that petitioner Voltas Ltd., and respondents No. 2 and 3 in the case could only be proceeded against on the basis of the opinion of the Director. What was urged, however, on behalf of the petitioner was that the complaint had been filed by the Food Inspector on the basis of the opinion of the Public Analyst and that after October 17, 1983, the Food Inspector had no authority to file a complaint without the written consent of the Chief Medical Officer, Chamba.
64. On the facts aforesaid, the learned Judge observed (in para 15 of the report) that :
'In the present case, as no proper complaint was filed by the Food Inspector prior to October 17, 1983, on the basis of the report of the Director, Central Food Laboratory, and for filing a complaint after October 17, 1983, it was necessary for him to have taken the written consent of the Chief Medical Officer of Chamba district therefore, it is held that there is no proper and valid complaint. Hence it is ordered that this complaint be returned to the complainant and the present proceedings are dropped. It will be open to the Food Inspector or the authorities concerned to institute any proceedings in accordance with the provisions of law, if they so desire. This petition is disposed of accordingly.'
65. The certificate of the Director in M/s. Voltas Ltd. (ILR (1985) Him Pra 796), undoubtedly gave out an offence of an entirely different nature from the one found on the basis of the report of the Public Analyst. The view, therefore, taken by V. P. Gupta, J. on the facts before him, was unexceptionable in view of what we have said in this judgment.
66. In the order of May 22, 1987, expressing his dissent from the view taken by V. P. Gupta, J. in M/s Voltas R.S. Thakur, J. has observed (in paras 8 and 9) thus :
'8. It, however, appears that this does not lay down a correct proposition of law. It is clear from the perusal of Section 13 of the Act that after the Local (Health) Authority receives the report of the Public Analyst disclosing the sample in question as being adulterated, it is required to forward the same to the. Food Inspector to launch prosecution and immediately after the intimation of the institution of prosecution against the person concerned is received by the Local (Health) Authority from the Food Inspector, the said authority is required to send a copy of the report of Public Analyst to the concerned person along with a notice intimating that the sample in question had been found to be adulterated and that he could apply to the court concerned within ten days of this notice to send one of the samples keet by the Local (Health) Authority to the Director, Central Food Laboratory for analysis and if the accused chooses to do so, the proceedings before the court concerned are held in abeyance till the receipt of the certificate of the Director of the Central Food Laboratory. Sub-section (3) of Section 13 of the Act lays down that the certificate issued by the Director, Central Food Laboratory shall supersede the report given by the Public Analyst.
9. Thus a bare reading of this Section would indicate that as soon as the certificate of the Director of the Central Food Laboratory is received, that is the final and conclusive document as regards the quality of the sample. In case the certificate discloses that the sample in question was not found to be adulterated, that is the end of the matter and even if the report of the Public Analyst on the basis of which the prosecution had been launched showed that the sample was adulterated, that is of no consequence whatsoever and the accused is entitled to discharge or acquittal as the case may be. In case, however, the certificate in question also reveals that the sample in question was an adulterated one, then in that case, even if the finding in the said certificate is completely at variance or in conflict with the report of the Public Analyst on the basis of which the prosecution was launched, the accused concerned is liable to be prosecuted on the basis of finding given in the certificate and in such a case the Act or the Rules nowhere lay down that a fresh complaint is required to be filed by the prosecution On the basis of the certificate of the Director, Central Food Laboratory. In such a case by a fiction of law the report of the Public Analyst shall stand supplanted by the certificate of the Director, Central Food Laboratory and it would relate back to the time when the complaint was filed. As a matter of fact it is the finding of the sample being 'adulterated' which amounts to an offence and not the variations in the report and the certificate which may impel the two authorities to conclude that the article of food in question was adulterated. The factum of variation is relevant only for the purpose of adducing evidence in proof of the offence. While viewing the impugned order of the lower appellate court in the light of these observations, I feel that the same is free from any infirmity.'
In paras 10 and 11 of his order he has referred to the decisions of the Punjab and Haryana High Court in Municipal Committee, Amritsar v. Shadi Lal, (1975 FAJ 314 : (1975 Cri LJ 915) and Gujarat High Court in the State of Gujarat v. Ambalal Maganlal, 1978 Cri LJ 1036, and then observed (in para 12) thus :
'I am, respectfully, in complete agreement with the aforementioned two Division Bench rulings, as per my opinion in paragraphs just preceding them'.
67. It is noticeable that the view expressed by the learned Judge (in paragraph 9) is founded upon the following premise that :
'(a) '.......by fiction of law the report of the Public Analyst shall stand supplanted by the certificate of the Director, Central Food Laboratory and it would relate back to the time when the complaint was filed........... (Emphasis ours);
(b) .......it is the finding of the sample being 'adulterated' which amounts to an offence and not the variations in the report and the Certificate which may impel the two authorities to conclude that the article of food in question was adulterated..........; and
(c) ........the factum of variation is relevant only for the purpose of adducing evidence in proof of the offence.....'
68. In our view the premise aforesaid is not correct in law as would be clear from the discussion made by us above. As a bald proposition of law we find ourselves unable to subscribe to the view that irrespective of the variations in the report of the. Public Analyst and the certificate of the Director, for whatever reasons, no fresh written consent by the appropriate authority is needed after the certificate of the Director and that the prosecution instituted on the basis of the consent obtained on consideration of the report of the Public Analyst can be continued against the offender.
69. In the ultimate analysis We may state the law in the following words :
Where the variation in the contents of the report of the Public Analyst and the certificate of the Director, Central Food Laboratory, is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of a written consent given by the appropriate authority Under Section 20(1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case. The prosecution can be continued on the basis of the written consent already obtained on the basis of the report of the Public Analyst.
70. But where the nature of the difference in the report of the Public Analyst and the certificate -of the Director, Central Food Laboratory, is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by Section 20(1) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further.
71. Also, where a fresh look at the question of continuance of the proceedings becomes necessary due to supervening circumstances, some of which have been noticed by us earlier by way of illustrations and corresponding conclusions.
72. Of course, the answer aforesaid is only relevant where the report, both by the Public Analyst and the Director, reveal commission of an offence under the Act. It is obvious that where the result of the findings of the Director is such that no offence can be said to have been committed under the Act by the person from whom the sample of food was taken, the proceedings against him have to fail.
73. With our answer aforesaid, on the legal question, let the revisions be now listed before a learned single Judge for their final disposal.
V.P. Bhatnagar, J.
74.I agree