Delhi High Court
Miss. Shakun And Another vs Delhi Administration, Delhi on 28 April, 1989
Equivalent citations: 1990CRILJ525, 38(1989)DLT376, 1989(17)DRJ112
ORDER
1. Petitioner 1, namely, Miss. Shakun, a Sales Supervisor in M/s. Modern Bazar, Shop No. 49, Basant Lok Shopping Centre, Vasant Vihar, New Delhi, and Vishwant Kumar, petitioner 2, the proprietor thereof, were prosecuted for offences under S. 2(ix)(k), Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') on a complaint having been filed in the Court of the Metropolitan Magistrate under the provisions of S. 7/16 of the Act on the allegation that on 22nd April, 1983 at about 3.30 p.m. Food Inspector Jit Singh purchased a sample of Supari from the said shop, for analysis, in accordance with the provisions of the Act and the rules framed there under which was kept stored/exposed in the above premises for the purposes of sale, and this sample was found to be adulterated as well as misbranded on analysis by the Public Analyst in report dt. 19th May, 1983.
2. The petitioner in Criminal Revision No. 47/89, Sat Narain Kabra, was prosecuted as proprietor of M/s. J.D. & Co. who was alleged to be the supplier of the aforesaid Supari out of which the sample had been purchased, and found to be adulterated as well as misbranded.
3. After recording evidence of the prosecution before charge, and after hearing the prosecution as well as the accused through their respective counsel, the learned Magistrate vide his order dt. 11th July, 1988 found it to be a case where it could not be said at that stage that the prosecution had not produced such evidence which if unrebutted would not be sufficient to record conviction of the accused. He further held that the defense such as of warranty raised by accused 1 and 2, who are now petitioners before this Court in Criminal Revision No. 141/88, or that of accused Sat Narain Kabra, (petitioner in criminal Revision No. 47/89) that he had not in fact supplied the goods, is such which requires to be proved by defense evidence, and that since prima facie as per report of the Director, Central Food Laboratory, the sample had been declared to be adulterated due to presence of saccharin and also the label declaration had been opined to be faulty and not in conformity with requirements of R. 47 of the Rules, framed under the Act, the accused present were liable to be charged under S. 2(ix)(k) of the Act. He directed by his order dt. 11th July, 1988 that charges be framed accordingly against all the accused persons.
4. Before the charges were actually drawn up the accused persons came up with the revision petitions before this Court. These two revision petitions being by accused who face a common prosecution, and are aggrieved by a common order of the trial Magistrate, have been taken up together for hearing and disposal, as they are based on identical facts as well as questions of law. The order is being recorded in Criminal Revision No. 141/88.
5. Mr. D. C. Mathur, Advocate appearing for the petitioners in Criminal Revision No. 141/88 and Mrs. Usha Kumar appearing for the petitioner in the other revision petition pressed the challenge to the order of the Magistrate on a point of law to the effect that the consent in terms of S. 20 of the Act has been as per prosecution case, accorded by Mr. M. C. Verma, the then Secretary (Medical), Delhi Administration, Delhi, and that this sanction proved by copy Ex. PW2/1 revealed that the sanctioning authority had not, at all, applied his mind to the facts of the case inasmuch as there is not even a reference to the report of the Public Analyst nor to the provisions of law, for violation or contravention of which, these persons were being prosecuted. Mr. Mathur pointed out that although Mr. M. C. Verma was produced as a witness by the prosecution in the pre-charge evidence, but his cross-examination had not been concluded, and in spite of the direction of the Court that it would be incumbent for the prosecution to produce Mr. M. C. Verma again failing which his evidence would not be read, Mr. M. C. Verma was not put in the witness box again with the result that the accused persons were deprived of the right of full cross-examination of this witness. The result, according to Mr. Mathur, is that this witness, which is a statutory requirement, and without which no prosecution could be launched, has not been duly proved and that the Magistrate himself recognised this position when by order dt. 9th October, 1986, he ordered that the prosecution was directed to produce Mr. M. C. Verma on the next date of hearing, failing which his examination-in-chief shall not be read in evidence.
6. The learned counsel argued that the fact remains that Mr. Verma never appeared in the witness box again and that as per this order of the magistrate dt. 9th October, 1986, the evidence of Mr. M. C. Verma has to be completely left out, and that as such it becomes a case where the authority who recorded the consent order for prosecution of the accused in this case has to be taken not to have come before the Court to vouchsafe for the fact that he had applied his mind to the facts of this case and had recorded his consent only after being satisfied from the material on record.
7. According to Mr. Mathur the copy of the consent order, which has been proved as PW2/A by the Additional Public Prosecutor who was authorised to launch this prosecution can at the most be taken to have been proved, only in the sense that this consent order was received by him, purporting to be signed by Secretary (Medical), Delhi Administration, Delhi along with other papers on the basis of which he proceeded to file the complaint in Court.
8. Mr. Mathur then referred to the provisions of S. 20 of the Act, which reads as under :
"20. Cognizance and trial of offences. - (i) No prosecution for an offence under this Act, not being an offence under S. 14 or S. 14-A, shall be instituted except by, or with the written consent of, (the Central Government or the State Government) or a person authorised in this behalf, by general or special order, by the Central Government or the State Government ........"
9. He said stress on the fact that the consent in writing is a pre-requisite for launching of the prosecution. That consent must on face of the record indicate that there was full application of mind by the concerned authority and should indicate that he had adverted to all the facts and material of a particular case. Learned counsel pointed out to the signed copy Ex. PW2/A and argued that a bare look at it reveals that it has been signed by the Secretary (Medical), Delhi Administration, Delhi, in a mechanical manner inasmuch as it is in the nature of a cyclostyled pro forma, where only blanks by way of filling up the names of the accused persons and the particulars of the sample and name of the food inspector and date of lifting of the sample had been inserted. There is no intrinsic evidence in this consent form that the concerned authority had before him the report of the Public Analyst, which is the basis of the prosecution or had gone through the same, or was made aware as to what are the contraventions of law or rules on the part of the accused persons for which they were proposed to be prosecuted, and for which he was according his consent. Mr. Mathur argued that now it is settled proposition that in the absence of any such material apparent on the face of the document, the sanctioning authority himself had to come in the witness box to supply the missing details or fill up the lacuna. This is lacking in the present case inasmuch as the Secretary (Medical), Delhi Administration, Delhi after being examined partly, was not produced again and the Court himself had recorded that his evidence could not be read as part of the record.
10. The learned Magistrate no doubt was right in saying that the report stood formally proved by evidence of the Additional Public Prosecutor who had received it along with other papers in the official course of business for launching prosecution but there is a difference between formal proof, in contra-distinction to the proof as to substance of a document.
11. A Division Bench of this Court in the case, State (Delhi Administration) v. Shyam Lal, (1987) 2 FAC 198, held that a sanction granted in a cyclostyled form where the name of the accused had been typed in the body of the form, the food article as well as the date of lifting of the sample had also been typed, and where there was no reference to the report of the Public Analyst, or the provisions of law with reference to which the accused were proposed to be prosecuted, the sanction was not valid. This view was reiterated by this very Division Bench in another case reported as R. N. Gujral v. Pritipal Gupta, (1988) 2 FAC 84. In both these cases the learned Judges of the Division Bench quoted with approval a judgment of a learned single Judge of this Court, reported as; State v. Brij Mohan, (1985) 1 FAC 74, where it was stressed that consent in order to be valid and to furnish requisite sanction for prosecution had to be complete in all material details, and where it was found to be in a cyclostyled pro forma with names of the accused persons filled up by typing as also the other particulars such as description of the sample, the date of lifting of the sample, and name of the food inspector, were all inserted in typing, and there is no reference to the fact that the sanctioning authority had gone through the report of the Public Analyst, then the consent cannot be said to be a valid sanction in terms of S. 20 of the Act. In that case, the order of the learned Magistrate calling the sanctioning authority in the witness box to prove these facts was upheld.
12. In the present case, the prosecution has chosen not to produce the said authority in the witness box in spite of number of adjournments having been given and in spite of the fact that the Court had clearly recorded that in the absence of that authority being produced again, his evidence will not be taken into consideration. When that was so, the learned Magistrate fell into manifest error in rejecting the contention of the accused persons at the time of consideration of charge by observing that since the accused would be getting opportunity to recall prosecution witnesses for cross-examination after the framing of the charge, the fact that Mr. M. C. Verma, Secretary (Medical), Delhi Administration, Delhi had not been produced again to enable the accused persons to cross-examine him cannot stand in the way of framing of the charge. The position that had emerged at the time the learned Magistrate was considering the question of charge was that only the consent form was before him, and even if that could be read into evidence prima facie; even then in view of the judgment of this Court, noticed above it was obviously a case where that consent was a document, whereby without any worth, because it does not show on face of the record that the sanctioning authority had applied his mind to the facts of the case. It suffers from all those lacunas which have been indicated earlier, as existing in the cases before the Division Bench in the case of Sham Lal (supra) and Pritipal Gupta (supra) as well the learned single Judge in the case; Srij Mohan (supra). As such, at the time the Court was considering the question of charge; there was no valid consent before him, and this consent being a pre-requisite for institution of a case in view of the provisions of S. 20 of the Act, there remained nothing further for the accused persons to rebut by evidence, when it was a case where complaint itself was not validly instituted.
13. In view of the clear authority of our own High Court in three successive judgments with which I respectfully agree, I do not think Mr. Bakshi took up a tenable plea, when appearing for the State arguing on the basis of a single Bench judgment of Bombay High Court, reported as; State of Maharashtra v. Janardan Ramchandra Narwankar, 1978 Cri LJ 811, to the effect that under S. 114, Evidence Act, a presumption arises that all official acts have been regularly performed, and that since the consent form had been proved by the Addl. Public Prosecutor, there was no need for further evidence either of the officer concerned himself or other extraneous evidence to prove that he had applied his mind to the facts of the case. Apart from the fact that I feel bound by the decisions of this Court as against judgment of Bombay High Court, otherwise also, it needs hardly to be recorded that even if the consent order is read into evidence, it discloses on face of it, such vital omissions in respect to material particulars that no other inference is possible than the fact that the consent order was signed by the authority concerned mechanically and without proper application of mind.
14. I, therefore, find it to be a case where the learned trial Court clearly fell into error in proceeding further against the accused persons by framing charge. It is thus a fit case to allow the revision petition and set aside the order dt. 11th July, 1988 whereby charges against all the three accused persons were framed.
15. In the result, this petition, as also petition No. 47 of 1989, are allowed, and the order dt. 11th July, 1988 is set aside. As a consequence the petitioners in both the revision petitions shall stand discharged. No order as to costs.
16. Petitions allowed.