ARVINDBHAI MOTIBHAI PATEL Vs. HARGOVIND PARSHOTTAM PATEL

JUDGEMENT

(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.