STATE OF MAHARASHTRA Vs. NIZAMUDDIN HAJI MOHAMMAD KASAM

JUDGEMENT

(1.) By this petition the State seeks to challenge the order of discharge passed by the learned Metropolitan Magistrate of 28th Court, Bombay, in Case No. 5/S of 1976. In this case the opponent, who will hereinafter be referred to as the accused, was sought to be prosecuted for an offence punishable under section 16 of the Prevention of Food Adulteration Act, read with section 7(i) of the said Act and Rule 23 of the Rules framed thereunder. According to the averments in the complaint filed before the Magistrate, on 7th October, 1974 samples were taken of several bottled drinks which were being sold by the accused who was the proprietor of a soda Factory. One of the drinks was named "Real Falsa". A sample of this drink was sent to the Public Analyst who reported that the sample contained certain amount of Prohibited colour. Before the charge was framed the accused tendered the sample which was with him and asked for the same being sent to the Central Food Laboratory at Calcutta which was accordingly done. The report of the Director of that Laboratory shows that the sample which that Laboratory analysed contained saccharin beyond the prescribed limit. The two reports, viz., the report of the Public Analyst and the report of the Director of Central Food Laboratory at Calcutta are mutually exclusive and have no common results of analysis at all. The Public Analysts report does not disclose any presence of saccharin in the drinks; the report of the Central Food Laboratory does not disclose the present of prohibited colour. Considering the inconsistency between the two reports, the learned Magistrate felt obliged to discharge Accused No. 1 which he did by his judgment and Order dated 6th April, 1977.

(2.) The State has sought to challenge this order of discharge, Mr. Patil, the learned Public Prosecutor appearing in support of the petition, has criticised the approach of the learned Magistrate and has contended that it was not open to the Magistrate to discharge the accused in the instant case when both the reports showed that the sample seized from him was adulterated in one or another, manner. Neither of the report says that the sample is not adulterated. Under section 13 of the Act the report of the Central Food Laboratory supersedes the report given by the Public Analyst, and if this is so, says Mr. Patil, the learned Magistrate ought to have framed a charge in the light of the report submitted by the Central Food Laboratory. The learned trial Magistrate, it is complained, had practically tried the case even without framing the charge and the order of discharge which has been passed is almost in the nature of an order of acquittal.

(3.) Though there is considerable justification in the complaint of Mr. Patil that it was not open to the learned Magistrate to order the discharge of the accused because of the inconsistency between the two reports, the order of discharge is sustainable, as has been pointed out by Mr. Baadkar appearing on behalf of the accused, on other grounds. Mr. Baadkar points out that section 20 of the Act which is mandatory prohibits the institution of any prosecution in respect of an offence without the consent of the authority mentioned in that section. According to Mr. Baadkar the sanction that was accorded in the instant case was for the prosecution of the accused in respect of an offence which showed that the sample sold by him contained prohibited colour. This sanction could not be automatically extended to the prosecution for an offence which consists of the addition of saccharin beyond the prohibited limit. For reasons which I now proceed to give, I have to accept the contentions of Mr. Baadkar and uphold that the prosecution could not have been proceeded with in the absence of a fresh sanction in the light of the findings of the Central Food Laboratory.