PUTTU LAL Vs. STATE

JUDGEMENT

(1.) THIS revision arises out of the Judgment dated 10th March, 19 8, passed by the IV Additional Sessions Judge, Agra, dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

(2.) ON 10th October, 1975, at about 9.30 a.m. the Food Inspector, Bah, found the applicant carrying about 35 liters of buffalo milk in a can. The Food Inspector collected milk out of that can. ONe part of the sample was sent to the Public Analyst, who reported it to be adulterated. A complaint was therefore, filed for the prosecution of applicant. During his examination in the trial court the applicant accepted that on the date and time alleged the Food Inspector collected sample out of the milk in his possession. He, however, pleaded that he did not receive any price for the same and further that the milk was not intended for sale but was being taken by him to his uncle Subedar in connection with Thirteenth Day ceremony of some deceased relation at his place.

(3.) THE question as to whether the sanctioning authority accorded sanction in the present case after applying his mind to the facts of the case or he did so mechanically is a mixed question of law and fact. It is, therefore, necessary for a party, if he chooses to assail the validity of the sanction on the ground that it was accorded without application of mind, to do so during the trial of the case so that the prosecution may have an opportunity to adduce evidence to prove that the sanctioning authority did apply his mind to the facts of the case before according the sanction. It is not open to a party to keep quiet in the trial court, to keep quiet in the appellate court and then to take the prosecution by surprise by raising such a contention for the first time before a court of revision. Indeed, if there is no sanction at all in any case it may be open to a party to raise that question even in a court of revision, but where the sanction for the prosecution exists in a case and the only objection raised on behalf of the accused is that it was accorded without application of mind to the facts of the case, equity and fair play demand that such an objection should be raised in the trial court itself, so that the other party may have an opportunity to lead necessary evidence. Reference in this connection can be made to the case of Tulsi v. State of U.P., AIR 1963 S.C. 606. One of the offences charged against the accused in that case was under Section 120-B of the Indian Penal Code. According to Section 196-A of the Code of Criminal Procedure, cognizance of the offence under Section 120-B, where the object of conspiracy is to commit any non- cognizable offence or cognizable offence not punishable with death or imprisonment for life or rigorous imprisonment for a term of two years or upwards, cannot be taken, unless the State Government by an order in writing has consented to the initiation of the proceedings. THE original order passed by the Government sanctioning the prosecution was not placed on record. THE prosecution only filed a letter from the Under Secretary to the Government of U.P. addressed to the District Migistrate, Kanpur informing him that the Governor had been pleased to grant sanction to the initiation of the proceedings against the persons concerned. It was contended before the Supreme Court that the written order of sanction by the sanctioning authority had not been placed on record and that, in any case, the document on record did not show on its face that the facts of the case were considered by the Governor. THE Supreme Court refused to entertain that contention and observed :