STATE OF MAHARASHTRA Vs. SHANTILAL JAMNADAS THAKKAR

JUDGEMENT

(1.) These are two revision applications filed by the State against the orders of discharge passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Bombay, in Criminal Case Nos. 281/S and 282/S of 1976 on his file. The accused in both the cases is the same. The accused was sought to be prosecuted for the offence under section 7(v) of the Prevention of Food Adulteration Act. (hereinafter referred to as the said Act), read with Rules 23 and 29 of the Rules made thereunder. It was the prosecution case that the complainant Food Inspector on 21-10-1975 had visited the shop of the accused and had purchased therefrom two different samples of Priti Scented Chatni and the said samples as per the report of the Public Analyst were found to contain coal-tar dye. Hence the two separate criminal cases for the two samples. The learned Magistrate held in both the cases that the sanction for prosecution given by the authority concerned in both the cases was improper inasmuch as although the offence alleged in both the cases was under section 7(v) of the said Act, the sanction had also mentioned that the accused was to be prosecuted for the offence of manufacturing, storing and selling adulterated food articles which was an offence under section 7(1) of the said Act. The learned Magistrate therefore by his impugned orders discharged the accused in both the cases. Hence the two revision applications. Since a common point of law arisen in both the said cases, the two revision applications are being disposed of by this common judgment and order. As regards the prosecution which is the subject-matter of Criminal Revision Application No. 35 of 1978, the sanction is in the following words :

(2.) Mr. Barday, the learned Counsel for the State, submitted that the mention of sub-section (ii) of section 7 in the sanction is by mistake and it should read as if the sanction is for the prosecution for the offence under section 7(v) only. It is not in dispute that the offence under section 7(v) is a distinct offence from that under section 7(i) of the said Act. The offence under section 7(i) consists of manufacturing for sale or storing or selling or distributing any adulterated food and that under section 7(v) consists of manufacturing for sale or storing or selling or distributing any article of food in contravention of any other provisions of the Act or of any rule made under the Act. The case of the prosecution in the present case was that the accused had committed an offence because the sample of Chatni contained coal-tar dye the use of which was prohibited under Rule 29 of the said Rules. Admittedly therefore, it was not a case of manufacturing for sale or storing or selling any adulterated food, an offence which is covered by section 7(i) of the said Act. This is fairly conceded by Mr. Barday and that is why he submitted that the mention of sub section (i) of section 7 in the sanction was by mistake. If that is so, then the authority giving the said sanction could not have decided to give the sanction for the prosecution of the accused for manufacturing for sale or storing or selling adulterated food. However, as will be clear from a reading of the order of sanction, the relevant portion of which has been quoted verbatim above, the authority in facts has given sanction for prosecution for manufacturing sale and selling of "adulterated food article under reference" meaning thereby the said Priti Scented Chatni. At the same time, sanction is also given for an offence under section 7(v) as sought to be orally emended by the learned Prosecutor for the State. Since on the admitted fact, the accused could not have been prosecuted in the present case for manufacturing stocking or selling adulterated food, the sanction given shows that there was no application of mind on the part of the Joint Commissioner, Bombay Division, who has given the sanction. This also shows that the authority is not clear as to what offence the accused has committed. It is therefore right in concluding that the sanction was not valid under the Act and hence the prosecution was not maintainable.

(3.) As regards Criminal Revision Application No. 36 of 1978, the sanction reads as follows: