ASHIM KUMAR DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) We note with regret that it has become almost a regular feature in most of the Criminal cases that we have been disposing of not to get the assistance of any Counsel for the State figuring as the respondent. It is not only a sad dereliction of duty on the part of the State, but any one who knows would realise that in the adversary system of trial that is prevailing under our procedural laws, failure of justice may occasion in a case, if the State does not choose to appear and contest, notwithstanding all the activism on our part to anticipate and consider on our own the case of the State respondent. The present case is also such a one where the accused-petitioner has got all the assistance of his learned Counsel Mr. Banerjee, but the State has drawn blank. But after the hearing and further hearing of this case were over and judgement was reserved, the learned Advocate, Mr. Mihir Roy requested us to allow him to argue the case on behalf of the Corporation of Calcutta and we must note that after he was allowed to do so, he endeavoured his best to render all round assistance.

(2.) The present revision is against an order of conviction and sentence in a prosecution u/S. 6 of the Prevention of Food Adulteration Act, passed by the trial Court and affirmed by the appellate Court. The complainant Food Inspector was admittedly not authorised to institute the complaint, not being authorised to do so by the Central Government or by the State Government or by any other competent authority and has accordingly purported to file the complaint with the 'written consent' of the Local Health Authority. Mr. Banerjee, has, however, urged that the complaint merely shows the signature of the authority according the consent under the word "Consented" printed at the foot of the complaint and does not show that the authority concerned applied its mind to the facts of the case and accorded consent after due deliberation. It is true that it is by now well-settled, since the decision of the Privy Council in Gokulchand Dwarkadas v. The King, AIR 1948 PC 82 , endorsed by the Supreme Court, among others, in Jaswant Singh v. State of Punjab, AIR 1958 SC 124 and reiterated in Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677 , that granting of such consent or sanction, where the same is condition precedent to a prosecution, is not a mere automatic empty formality or a matter of easy insouciance, but is one of anxious advertence and that the Court must be satisfied that the same has been accorded after a due consideration of all the relevant facts and circumstances. But as we have recently pointed out in Om Prakash Shaw v. Ranigunj Municipality (Criminal Revision No. 2597 of 1983, disposed of on 83-89 : (reported in 1989 Cri LJ 1793) the consent or sanction need not be articulated in any particular form or pattern and that if it is shown that the relevant materials were placed before the concerned authority according the sanction, there should be a presumption that the authority did so after applying its mind to and on due consideration of those materials, unless it is demonstrated that the authority did not or could not do so. In the case at hand, Mr. Banerjee not having been able to draw our attention to anything on record to show that such application of mind by the concerned authority could not be and was not made, there is no reason why we should not draw the presumption that the consideration and application of mind were duly made, there being always a presumption, even though permissive only, in favour of official acts having been regularly performed. If, however, the materials on record show or reasonably suggest that the relevant materials were not and could not be placed, such a presumption might not operate.

(3.) In the case at hand, the facts constituting the offence have been noted in sufficient details in the body of the complaint itself (Ext. 10) on which the 'written consent' is endorsed and the Forwarding Note of the Food Inspector (Ext. 9) also clearly shows that all the relevant facts were also stated therein and it has been averred that "all connected papers including the report of the Public Analyst" and "the petition of complaint" were placed before the authority according the sanction and Ext. 9(1) endorsed on Ext. 9 itself clearly demonstrates that the authority concerned accorded the written consent after noting "papers examined, consented, pl. prosecute". In para 5 of the complaint also, the complainant Food Inspector has averred that "record of his inspection" was duly placed before the authority according written consent. It may also be noted that the deposition of the Food Inspector figuring as PW. 1 to the effect that all relevant materials were placed before the authority according the consent was not challenged in cross-examination. In the context of these facts and circumstances, and for the reasons stated in our judgement in Om Prakash Shaw (supra), the contention of Mr. Banerjee that there was no legal and valid 'written consent' to sustain the impugned prosecution must be repelled.