BHAGAT STORES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners Nos. 2 and 3, partners of petitioner No. 1, which is a partnership firm dealing in foodgrains, were each convicted and sentenced to nine months' Rule I. and a fine of Rupees 1,000/- Under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, to be hereafter referred as 'the Act'. The firm was also convicted and sentenced to pay a fine of Rs. 1,000/-under the aforesaid Sections. In appeal that was preferred the learned sessions J Judge merely reduced the sentence imposed on petitioners Nos. 2 and 3 from nine months to six months. Being aggrieved by the aforesaid decision, the petitioners have now filed this present revision.

(2.) THE following facts are not in dispute. On 17-2-L975 Shri Purshottam Sinari, Foodinspector, PW 1, attached to the Directorate of Health Services, Panaji, visited the shop of the petitioners and purchased 750 gms, of Jawar from petitioner No. 2a. All th legal formalities were duly observed in the matter of purchase and seizure of the goods. The Public Analyst analysing the sample sent to him reported that it contained damaged grains in excess of the permissible limit. After obtaining sanction from the Drugs Controller, P. W. lodged a written complaint and this is how the petitioners were placed on trial and finally convicted and sentenced as stated above.

(3.) AT the forefront of his argument, the learned Counsel for the petitioners has submitted that the prosecution of the accused was without proper sanction in the sense that there is nothing on record to show that the sanctioning authority had applied its mind which is a basic requirement Under Section 20 (1) of the Act. It is not in dispute that the Drugs Controller of the Directorate of Health Services, Panaji, is the authority to sanction prosecution. Exh. P-6 which is a copy of the order sanctioning the prosecution reads as follows: No. DHS/d-C-PFAA-76/89, Govt. of Goa, Daman and Diu, Directorate of Health Services, Office of the Drugs Controller, Panaji-Goa. Dated : 23rd April, 1975. 3 Vaisakha, 1897. ORDER In exercise of the powers vested in me Under Section 20 of the Prevention of Food Adulteration Act, 1954, read with Government Order No. PHD/33 (l)/74-PFA-I, dt. 2-1-1975, published in the Govt. Gazette, Series II, No. 41, dated 9-11975, I Desiderio Costa Frias, Drugs Controller for Goa, Daman and Diu, hereby give my consent for the prosecution of M/s. Bhagat Storss and Us partners, situated near Municipal Market, Panaji, Goa, for an offence alleged to have been committed by him/them as regards selling and storing adulterated food 'jawar' on or about 17-2-1975 in contravention of Section 7 punishable Under Sections 16 and 17 of the said Act. Sd/ (Desiderio Costa fries) Drugs Controller, Directorate of Health Services. There is nothing therein to indicate that the evidence in the case and specially the report of the Public Analyst had been perused by the Drugs Controller before sanctioning Ext. P-6, which more or less appears to be a mechanical act of the Drugs Controller. In the evidence of PW 1 the Food Inspector has also not breathed a word that he had placed evidence and specially the report. of the Public Analyst before the Drugs Controller. But strangely enough the learned advocate while cross-examining him elicited that he had submitted the whole file for the purpose of obtaining sanction. It was unwise on the part of the defence counsel to have put a question regarding placing of evidence when the witness had said nothing in his examination-inchief. Be that as it may, the answer given by the witness does not, however, clearly, establish as to the materials that he placed before the Drugs Controller. His evidence that he submitted the whole file, is of no avail unless it is further shown that he had submitted the public analyst's report. Before giving written sanction it is the duty of the competent authority to apply its mind to-the facts of the case and satisfy itself that a prima facie case exists for the alleged offence. It is also required of the authority to consider the reasonableness and propriety of the prosecution and be satisfied that the prosecution is not frivolous and is uncalled for because sanction required Under Section 20 is not an empty formality. In. Their Lordships had occasion to consider the scope of Section 20 (1) of the Act, I may now read the relevant observations of their Lordships insofar as they are relevant (at p. 172 of Cri LJ) :. . . In the first place, the reason of the Rule could not suggest or imply such a condition. 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, but the further implication that the complainant must be named in. . . . It is thus clear from the above observation that before giving written sanction the concerned authority should apply its mind to the facts of the case and satisfy itself that there is a prima facie case to prosecute the offender in the Court. It should also consider the reasonableness and propriety of the prosecution that is to say that the case is not frivolous and deserves to be presented to the Court for trial.