STATE Vs. APPUSAMI

JUDGEMENT

(1.)

(2.) THE case of THE prosecution was that THE 1st Accused appuswami was asalesman in charge of THE grocery section of Ponni Super Market, Salem, workingunder THE control of THE 2nd accused r. Narasimhan, THE General Manager of THEsaid Super Market. On 27th March, 1976 at about 10-20 A. M. A-1 No. 3145 grams ofgingelly oil for sample No. 3145 for Rs. 2-64 to THE Food Inspector, 18thdivision, Salem Municipality, on behalf of THE 2nd accused. The sample, onanalysis, was found to contain a mixture of 86 per cent. of gingelly oil and 14per cent. of groundnut oil. The sanction order Exhibit P-6 was issued by THE health Officer, Salem Municipality, wrongly mentioning section 6 (1) (a) (i)instead of section 16 (1) (a) (i) of THE Prevention of Food Adulteration Act. After THE commencement of THE trial, a revised sanction order Exhibit P-8 was issued mentioning THE correct section as section 16 (1) (a) (i) of THE prevention of Food Adulteration Act.

(3.) THE prosecution cannot succeed in the case notwithstanding the fact that it has established satisfactorily that the 1st accused sold to P. W. 1 on 27th March, 1976, oil as gingelly oil and that it was adulterated in that, it contained only 86 per cent. of gingelly oil and 14 per cent, of groundnut oil. It has to show that there is valid sanction under section 20 of the Prevention of Food Adulteration for prosecuting the accused in this case. Section 20 of the Prevention of Food Adulteration Act, 1954, as it stood at the relevant time, laid down that no prosecution for an offence under this Act, shall be instituted except by or with 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. THE sanction order exhibit P-6 relating to Sample No. 3145 had been issued by the Municipal Health officer authorising the Sanitary Inspector, Division No. 6 to prepare and submit charge-sheets in three days under sections 7 (1) and 6 (1) (a) (i) read with section 2 (1) (a) (i) and rule 44 (b): It is seen from the judgment of the learned Magistrate that during the trial, it was found that there was mistake in Exhibit P-6, in that, section 6 (1) (a) (i) is referred to instead of section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. That mistake has been rectified in Exhibit P-8. It does not no doubt state that Exhibit P-8 has been issued in supersession or modification of Exhibit P-6. But having regard to what happened during the trial and the subsequent production of Exhibit P-8, it has to be held that Exhibit P-8 sanction has been accorded by the Municipal health Officer enabling the Sanitary Inspector, Division No. 6 to prepare and submit charge-sheets in three days under sections 7 (1) and 16 (1) (a) (i) read with section 2 (1) (a) (i) and rule 44 (b ). It is seen from the evidence of p. W. 1 that at the relevant time he was Food Inspector in charge of Division no. 18. As already stated, Exhibits P-6 and P-8 have been issued authorising the Food Inspector, Division No. 6 to prepare and submit charge-sheets in the case relating to Sample No. 3145. Unfortunately, there is no evidence to show that when Exhibits P-6 and P-8 were issued, P. W. 1 had been transferred from division No. 18 to Division No. 6. This is a serious lacuna in the case of the prosecution. What is more, Exhibits P-6 and P-8 do not contain anything intrinsically to show that the Municipal Health Officer who issued Exhibit P-6 and the Commissioner, who was in charge as Municipal Health Officer and has issued Exhibit P-8, have applied their minds to the facts of the case and satisfied themselves that there was a prima facie case of adulteration of food stuff by the 1st accused in the present case. In this connection, the learned counsel for the accused invited my attention to three decisions in support of his contention that the sanction is invalid in law. In Bijai Lal v. State1; it has been held that the authority instituting the prosecution or, authorising the prosecution by his consent should apply his mind to the alleged commission of an offence by the accused person and should be satisfied that the accused has to be prosecuted for the said offence. In Sanatan Sahu v. THE Puri municipality2, Acharya, J. , of the Orissa High Court has observed that the sanction should indicate that the authority or the person giving the written consent was himself satisfied about the correctness of the allegations against the accused and the Court before proceeding with the case must be satisfied that the authority or the competent person, as per section 20 of the Act, has actually applied its mind and has given the consent required under that section. In a recent decision, Ratnavel Pandian, J. , has observed in Ramakrishna reddiar v. State3, thus: 'it may be that all the papers connected with both the cases had been sent to the sanctioning authority. But the mere production of the documents before the sanctioning authority by itself would not go to show that the sanctioning authority had perused the documents and applied his mind to the facts contained therein. THEre is absolutely no evidence to show what were the contents of the letter sent by the Inspector-General of Police, nor is the said letter produced before the Court. THErefore, the Court cannot draw an inference that the said letter contained all the facts that were necessary to enable the sanctioning authority to accord sanction. THE view of the lower appellate Court taken on this aspect is totally incorrect since it stands unsupported by the evidence on record. When it does not appear on the face of the sanction that the sanctioning authority applied his mind in the light of the observations made by the Supreme Court cited above, the prosecution must establish by extraneous evidence that the sanction was accorded by the sanctioning authority after all those facts had been placed before the authority and that the said authority applied his mind'. In that case, the learned Judge held that the prosecution had failed to satisfy that the sanction order in question was legally a valid one, which is a pre-requisite condition for conferring jurisdiction on the criminal Court to try the case and that the lower appellate Court has committed a manifest illegality by taking a wrong view of the matter. THEre is no extraneous evidence in this case to show that the Municipal Health Officer who issued the first sanction order and the Municipal Commissioner, who was in charge as Municipal Health Officer and has issued Exhibit P-8, had applied their minds to the facts of the relevant case and come to a prima fade conclusion that any offence under the Prevention of Food Adulteration Act, had been committed by any of the accused in this case. THErefore, I hold that the prosecution has failed by reason of this fact. Accordingly, the appeal fails and is dismissed.