Calcutta High Court
S.M. Anwar And Co. And Anr. vs State Of West Bengal And Anr. on 5 August, 1993
Equivalent citations: 1993CRILJ3754
ORDER Gitesh Ranjan Bhattacharjee, J.
1. One Food Inspector filed a complaint, with the consent endorsed thereon by the Local (Health) Authority and Chief Municipal Health Officer, against the present petitioners who are a firm and its partner in respect of offence punishable under Section 16(1)(a)(i) and (ii) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (PFA Act, for short). The complaint was filed in the Court below sometime in July, 1990 on the basis of a report of the Public Analyst in respect of the sample of tea duly purchased by the Food Inspector from the shop of the petitioners and forwarded to the Public Analyst for examination. The Public Analyst was of the opinion that the sample of tea did not conform to the prescribed standard in respect of total ash, ash insoluble in HC1 and water soluble extract and hence the sample was adulterated. His findings on these matters are thus :
Total ash determined on tea drired to a ... 8.21% constant weight at 100°C. Ash insoluble in HC1 ... 1.98% Water soluble extract ... 29.8%
Under Rule 5 of the Prevention of Food Adulteration Rules, 1955 the standard defined in Appendix B to the said Rules in Item A. 14 for 'tea' is thus :
a) Total ash determined on tea dried to a constant weight at 100°C. ... 4.0 to 8.0 per cent.
b) Total ash soluble in boiling distilled water. ... Not less than 40 per cent of total ash.
c) Ash insoluble in HC1. ... Not more than 1.0 per cent, by weight on dry basis.
d) Extract obtained by boiling dry tea (dried to
constant weight at 100°C) with 100 parts of
distilled water for one hour reflux. ... Not less than 32 per
cent.
e) Alkalinity of soluble ash. ... Not less than 1.0
per cent, and not
more than 2.2 per
cent, expressed as
K20 on dry basis.
f) Crude fibre (determined on tea dried
constant weight at 100°C. ... Not more than
17 per cent.
In due course another sample of tea was sent to the Director, Central Food Laboratory for examination and his report is as follows:
Total ash % by wt. in dry basis. : 5.7
Total ash soluble in boiling distilled water : 65.4
Ash insoluble % in dil. HC1 on dry basis. : 0.35
Water extract % : 37.6
Alkalinity of soluble ash % on dry basis. : 1.74
Crude Fibre % (by wt. in dry basis). : 10.2
Microscopic examination. : Tea structure and
Cashew husk structure.
Coal tar dye. : Not detected.
Iron Filings. : Nil.
The Director, Central Food Laboratory has recorded his opinion that the sample did not conform to the standard of tea as per PFA, Rules, 1955.
2. It is argued by the learned Advocate for the petitioners that the report of the Director, Central Food Laboratory shows that the findings on all items of the test are within the specified standard, but only under the heading 'Microscopic examination' the finding has been recorded as 'tea structure and Cashew husk structure' which does not offend against the prescribed standard and secondly, no reliance can be placed in this matter on mere microscopic examination. The other point urged on behalf of the petitioners is that in view of Section 13(3) of the PFA Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst and as such the consent given by the appropriate authority for prosecuting the petitioners on the basis of the report of the Public Analyst will be of no avail for continuing the prosecution against the petitioners on the basis of the report of the Director, Central Food Laboratory. Now let us examine this aspect of the matter first, namely, what will be the fate of the prosecution started on the basis of a report of the Public Analyst if during the continuance of the proceeding it is found that the unfavourable findings recorded against the accused in the report of the Public Analyst all stand superseded in favour of the accused, by the report of the Director of the Central Food Laboratory as has happended in the present case. After a Food Inspector collects necessary sample of food on purchase by following the prescribed procedure, one part of the sample is sent to the Public Analyst for analysis. Under Section 13 the Public Analyst sends his report of analysis of the sample to the Local (Health) authority. If the report of the Public Analyst shows that the article of food is adulterated then a prosecution may be . instituted against the concerned person and in that case after such institution of prosecution the Local (Health) Authority is required under Sub-section (2) of Section 13 to send to the concerned person a copy of the report of the Public Analyst informing him that he may apply to the Court within 10 days from the date of receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. The accused may then, through Court, get a sample sent to and analysed by the Director of Central Food Laboratory. The Director, after analysis, is required to send a certificate to the Court within one month from the date of receipt of the sample specifying the result of the analysis. Sub-section (2-D) of Section 13 provides that until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution. As I have already mentioned Sub-section (3) of Section 13 provides that the certificate issued by the Director of Central Food Laboratory shall supersede the report of the Public Analyst. The proviso to Sub-section (5) of Section 13 provides that the report of the Director of the Central Food Laboratory except in a case where the proviso to Sub-section (1A) of Section 16 is attracted, shall be final and conclusive evidence of the facts stated therein.
3. Section 20 of the PFA Act, carrying the caption 'cognizance and trial of offence' inter alia provides that no prosecution for an offence under the Act, not being an offence under Section 14 or Section 14A 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 orders, by the Central Government or the State Government. The State Government has authorised the Chief Municipal Health Officer to act under Section 20 of the PFA Act. In view of such authorisation a petition of complaint may be filed by the Chief Municipal Health Officer himself as complainant or by somebody else with his consent. As we have seen in the present case the complaint was filed by the Food Inspector with the consent of the Chief Municipal Health Officer. The question that now falls for consideration is, if during the pendency of the proceeding in the Court, the report of the Public Analyst on the basis of which the consent to file the complaint was given and the complaint was filed, stands superseded by the certificate of the Director of the Central Food Laboratory and if it appears from such certificate that the report of the Public Analyst was wrong and the article of food was actually conforming to the prescribed standard in respect of the items found by the Public Analyst as non-conforming to the same, in that event whether the prosecution can yet proceed on the basis of any new item of non-conformity with the prescribed standard as may be mentioned in the certificate of the Director of Central Fo6d Laboratory and whether the continuance of prosecution on the basis of such certificate of the Central Food Laboratory in respect of such new item of non-conformity is tenable in the absence of fresh consent of the appropriate authority.
4. In Voltas Ltd. v. F.I., Chamba, 1986 FAJ 123, a single Judge of the Himachal Pradesh High Court directed for return of the complaint filed with the consent of the appropriate authority on the basis of the report of the Public Analyst on the ground that the said report having been superseded by the subsequent certificate issued by the Director of Central Food Laboratory there was no proper and valid complaint. But the learned Judge however observed that it would be open to the Food Inspector or the authorities concerned to institute any proceedings in accordance with the provisions of law if they so desired, implying thereby that a new prosecution could be instituted with fresh consent of proper authority.
5. The Gauhati High Court in State of Assam v. Subkaran Agarwalla, 1987 FAJ 144, also seems to have taken the view that where a certificate of the Director of Central Food Laboratory supersedes the report of Public Analyst, a charge will have to be re-framed according to such certificate and this can be done only when there is sanction for the offence disclosed by the certificate, failing which, the accused is entitled to acquittal.
6. A Division Bench of the Gujarat High Court in State of Gujarat v. Ambalal Maganlal, 1978 Cri LJ 1036, in considering the question as to whether a fresh consent would be necessary where the report of the Public Analyst stands superseded by the report of the Director of Central Food Laboratory expressed the opinion that once the written consent to prosecution is given by a competent authority the institution of prosecution should be regarded as if it is by that authority and no further question as regard the validity of written consent as a result of subsequent event would arise in such a case where cognizance of offence is taken by the Court. The said Division Bench was also of the view that since the two standards in respect of cow's milk prescribed under the rules must be cumulatively satisfied, if a given sample falls below any of these two standards, the article of food is adulterated and the offence takes place and that, the two standards therefore are integral parts of one and the same offence and if in such a case cognizance is taken upon a valid written consent which consent is given on the basis that one of the two parts prescribed as standards is not complied with and it is found subsequent to the institution of the prosecution, as a result of the certificate of the Director under Section 13(2) that, that part is complied with, but the sample does not comply with the other part which is as integral as the former, the offence remains one and the same and the character of the offence does not change and it is only the evidence by which the offence is sought to be proved which is changed and further that the certificate of the Director is only evidence of the offence in the case though conclusive in nature, and the consent, once effectively given cannot become invalid, or the cognizance of the offence taken upon a valid consent cannot be vitiated merely because the evidence by which the offence is sought to be proved changes as a result of a subsequent event. The Division Bench of the Gujarat High Court held that the Court in a case of this nature has to proceed further on the basis of the certificate of the Director. The Division Bench was of the clear opinion that the offence being one and the same, another written consent, because of difference of opinion between the Public Analyst and the Director, cannot be insisted upon before proceeding with the trial of such a case. The view taken by the Division Bench of the Gujarat High Court was also approved by a Full Bench of the Gujarat High Court in paragraph-26 of the decision in Prahladbhai v. State of Gujarat, 1984 Cri LJ 1642.
7. But then, a Full Bench of the Himachal Pradesh High Court rather took a somewhat different view in Rattan Lal v. State of H.P., 1990 (1) FAJ 50 : (1991 Cri LJ 3302), where the Court after considering a large number of decisions including the said decisions of the Gujarat High Court came to the conclusion that where the variation in the contents of the report of Public Analyst and the certificate of the Director, Central Food Laboratory is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of written consent given by the appropriate authority under Section 20(1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case and that the prosecution can -be continued on the basis of the written consent already obtained on the basis of the report of the Public Analyst. It has also been held therein that where the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which the prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by Section 20(1) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further. It has however been observed that where the result of the findings of the Director is such that no offence can be said to have been committed under the Act by the person from whom the sample of food was taken, the proceedings against him have to fail.
8. Earlier in paragraph 22 of the said decision the Full Bench of the Himachal Pradesh High Court observed that adulteration is the genus and adulteration of a particular nature found in an article of food is the specie of the offence which is allegedly committed by the offender. In paragraphs 24, 25 and 26 of the said decision different situations have been visualised as stated hereafter. Where the certificate of the Director of Central Food Laboratory shows that the article of food is adulterated on account of the presence or absence therefrom of contents of a nature similar to the one for which the sample was found to be adulterated by the Public Analyst, a fresh application of mind by the authority under Section 20(1) to the report of the Director for deciding whether the prosecution initiated against the offender should be continued or not, would be absolutely unnecessary. Such would also be the case where the Director finds the sample to be adulterated for the presence or absence of the contents for which it had been found to be adulterated by the Public Analyst, though there might be some difference in the quantity or percentage of the contents in the two reports. Of course the quantitative difference of the contents should not be such which may have the effect of changing the nature of the offence, that is, the deficiency or addition of the percentage of any pre-existing content of the sample, from the one found on analysis by the Public Analyst, should not be such, when the sample is later examined by the Director, as to result in a qualitative difference in the nature of adulteration so as to bring the offence into some other specie altogether where the consent is based upon an adulteration of a particular nature found by the Public Analyst, it would not enure for the benefit of the prosecution in respect of a different kind of adulteration found by the Director in the sample.
9. I have discussed above some judicial views taken in the matter in different decisions including the Full Bench decisions of the Gujarat High Court and the Himachal Pradesh High Court which have held somewhat contrary views in the matter. Since there is a divergence of the judicial views in the matter an independent analysis of the matter becomes necessary on my part for coming to a conclusion in respect of the same.
10. As we have already noticed, apart from the Central Government or the State Government a prosecution under Section 16 of the PFA Act can be instituted by a person authorised in this behalf by any such Government under Section 20 of the said Act. Such authorisation however can be made by the Central Government or the State Government 'by general or special order'. Such a prosecution can also be instituted with the written consent of such authorised person. It has been argued by the learned Advocate for the opposite party that application of mind is not necessary for granting consent for instituting such a prosecution. In support of his submission he has attracted my attention to the decision of the Supreme Court in Dhian Singh v. Saharanpur Municipality . That was a case in which Section 20, PFA Act fell for consideration as it stood at the relevant time before the said section was amended to its present form. At that time under Section 20 no prosecution could be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority. Therefore at the relevant time a local authority, such as, a Municipal Board was competent to file a complaint and a complaint could be filed also with its written consent. The local authority was even empowered by the section itself to authorise a person, by general or special order, to institute prosecution. In that background, the Supreme Court in the said decision observed in paragraph~5 (ibid) that under Section 20 of the PFA Act no question of applying one's mind to the facts of the case before the institution of the complaint would arise as the authority to be conferred under that provision could be conferred long before a particular offence had taken place and that, it was a conferment of an authority to institute a particular case or even a class of cases and further that, the said section merely prescribed that persons or authorities designated in that section were alone competent to file complaints under the statute in question. In that case the complaint purported to have been filed by the Municipal Board, Saharanpur but it was signed by the Food Inspector. A plain reading of the said decision of the Supreme Court shows that Supreme Court made the said observations in the context of the provision that the Municipal Board could under Section 20 as it stood at that time, authorise the Food Inspector by general or special order to institute prosecution. The authorisation contemplated therein is of the nature of delegation of the authority to institute prosecution in cases considered suitable by the delegate which is something different from mere consent to institute any particular prosecution. The Supreme Court, in that case, was not considering the question whether in granting consent the application of mind was necessary or not. The observations of the Supreme Court in the said case related only to authorisation by general or special order and obviously such authorisation can be made even before a particular offence has taken place. However under Section 20 as it now stands after amendments there is no scope of authorisation by a local authority. Under the existing provisions of Section 20 a person may be authorised by the Central Government or the State Government by general or special order but such person cannot make further authorisation or sub-delegation in favour of any other person under Section 20 although such authorised person can accord consent to the initiation of a particular prosecution for an offence under the Act. While in view of the said Supreme Court decision in Dhian Singh (supra) application of mind is not necessary for authorisation under Section 20, in case where a prosecution is instituted on the basis of consent accorded by the authorised person under the said section, such consent must be based on application of mind to the essential facts relevant for the prosecution in the particular case. As we have seen, in our present case, the prosecution was instituted by the Food Inspector on the basis of consent accorded by the authorised person and not on the basis of any authorisation in favour of such Food Inspector. Therefore, the said Supreme Court decision is not applicable to the facts and circumstances of the present case.
11. On the other hand, there are decisions of the Supreme Court where it has been held that in according consent for prosecution under Section 20(1) the person concerned must apply his mind to the facts of the case for satisfying himself that the facts warrant a prosecution and a prima facie exists against the alleged offender (See State of Bombay v. Parshottam Kanaiyalal , A. K. Roy v. State of Punjab, 1986 (3) FAC 66 : (1986 Cri LJ 2037) (SC); also see, Lachman Singh v. State, 1979 FAJ 23 : (1979 Cri LJ NOC 1 (All)). There is therefore no scope of holding otherwise than that where a question of consent is concerned, as distinct from authorisation under Section 20 of the PFA Act, the person according such consent for a particular prosecution has to apply his mind to the essential facts of the case. In according consent for a prosecution under Section 20 the consenting person has therefore to apply mind to the essential facts of the case necessitating such prosecution including the report of the Public Analyst showing how and in what manner the concerned article of food is adulterated. It is needless to mention that the consent must be not necessarily with reference to any particular section of the Act but must be with reference to the facts giving rise to the offence under the Act. According to Section 2(n), Cr. P.C. 'offence' means any act or omission made punishable by any law for the time being in force. Since Section 20 PFA Act uses the expression 'no prosecution for an offence under this Act', the person according consent for such prosecution under Section 20 will therefore have to consider the acts or omissions constituting an offence under the Act and justifying or necessitating a prosecution for the same and in considering the nature of such acts or omissions the essential facts inseparably associated with such acts or omissions as integral part thereof will also have to be considered. The nature of the adulteration as may be recorded by the Public Analyst in his report therefore will have to be considered or looked into by the concerned authority in according consent for prosecution on the basis of such report.
12. In considering the question as to whether the consent is to be accorded for a prosecution under Section 20, the concerned authority will have to first consider as to whether any offence under the Act appears to have been committed. If there is any report of Public Analyst the concerned authority, in this connection has to look into such report and see what are the findings of the Public Analyst and whether such findings indicate any offence under the Act. Adulteration or for that matter the nature of adulteration may be of various kinds. Section 2(i-a) of the PFA Act describes the various kinds of adulteration in its sub-clauses (a) to (m). An article of food will be held adulterated if the prescribed standard, if any, in respect of the same has been violated; as for example, a case coming within the ambit of Clause (m) of Section 2(i-a) of the PFA Act. but apart from prescribed standard, i.e., standard prescribed by rules made under the Act there may also be a violation of a required standard thereby rendering the article of food adulterated; as for example a case coming within the ambit of, say, Clause (g) of Section 2(i-a). The said Clause (g) envisages that an article of food shall not be obtained from a diseased animal and thus sets a required standard. Infraction of this required standard renders the article of food adulterated. Likewise, Clause (e) envisages a required standard that an article of food shall not become contaminated or injurious to health by being prepared, packed or kept under insanitary conditions. One. very significant aspect of the case of adulteration in respect of an article of food is that the factum of adulteration and the nature of adulteration are not two separate and independent aspects of the matter. In fact it is' the finding of the nature of adulteration which determines that there has been adulteration. A finding of the nature of adulteration is the gateway to the finding of factum of adulteration and the process is not reversible. Since the factum of adulteration has no independent entity, not to speak of proof, dissociated from the nature of adulteration, there cannot be any consideration of the question whether an article of food is adulterated bereft of consideration of the nature of adulteration. The nature of adulteration thus being an essential fact for a finding of factum of adulteration, the same constitutes an indispensable factor for consideration whether consent should be accorded for initiating a prosecution for an offence relating to adulteration punishable under the PFA Act.
13. Now, let us visualise a case where although the report of the Public Analyst shows that the quality of the sample examined falls below the prescribed standard as mentioned in sub-clause (m) of Section 2(i-a), yet the certificate of the Director of the Central Food Laboratory shows that the article does not fall below such prescribed standard and there is at all on infraction of the standard referred to in sub-clause (m), but the article is adulterated under sub-clause (k) thereof by reason of its containing a prohibited preservative which was however not there in the report of the Public Analyst. In such a case in view of the certificate of the Director the nature of adulteration changes totally. Now, if the very basis of the original consent altogether goes away is the prosecution still maintainable on a new basis for which no consent has been obtained. In the visualised case, if the report of the Public Analyst instead of containing what it originally contained would have contained what the certificate of the Director of Central Food Laboratory contains, even in that case such contents would have been a matter for consideration of the appropriate authority in according consent for the institution of the prosecution. It will therefore be somewhat anomalous if the prosecution in the visualised case, in view of the subsequent certificate of the Director is allowed to continue solely on the basis of the contents of such certificate disclosing altogether new grounds without requiring application of mind of the appropriate authority to such contents which would have been relevant in considering whether consent for the prosecution should be given oil the basis of such contents had such contents been the materials before the appropriate authority at the threshold stage of initiation of the prosecution.
14. That the threshold stage of a prosecution is not the only stage where the question of consent, permission or sanction may arise for consideration will also be evident, if we refer to Section 216 of the Code of Criminal Procedure. Sub-section (1) of Section 216, Cr. P.C. empowers the Court to alter or add to any charge, already framed, at any time before judgment is pronounced. Sub-section (5) of Section 216 provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. This provision clearly indicates that the question of necessary sanction may crop up even during the continuance of a prosecution where previous sanction is necessary, and for obtaining necessary sanction the proceeding may have to be stayed even at an intermediate stage, but of course no fresh sanction will be necessary upon an altered or added charge where sanction has already been obtained for a prosecution on the same facts as those on which the altered or added charge is founded. Therefore there is no difficulty in coming to the conclusion that if the altered or added charge is based on some new facts and the offence based on such new facts is required to be tried with previous sanction, in that case necessary sanction may be obtained during the continuance or at an intermediate stage of such proceeding. In connection with the sanction required under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 for prosecution for violation of any provision of the said Order the Privy Council in Gokulchand Dwarkdas v. The King , observed that the Government cannot adequately discharge the obligation of deciding whether to give or withhold the sanction without a knowledge of the facts1 of the case, nor is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of Clause 23. In considering the language used in Section 230 of the old Criminal Procedure Code (1898) which corresponds to the language of Sub-section (5) of Section 216 of the present Code the Privy Council observed that the words 'unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded' indicate that the legislature contemplated that sanction under the Code would be given in respect of the facts constituting the offence charged.
15. In the context of prosecution for offences punishable under Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161, I.P.C. the provision regarding sanction for prosecution in the back-drop of Section 230 of the old Cr. P.C. was considered by the Allahabad High Court in L.E. Jacobs v. Union of India . The following observations of the learned Judge in paragraph 27 of the said decision deserve notice :
"Under this section if the Court finds that certain fresh facts have come to its knowledge which have changed the aspect of the case and necessitate an alteration or addition of a charge for which a fresh sanction is necessary then it would stop proceedings in the case and await the new sanction but where the facts remain the same, it will proceed with the altered or added charge on the basis of the sanction already obtained. The real test is whether the new or altered charge is based on the same facts which have already been considered by the sanctioning authority or whether some new facts have come to light in evidence which require its reconsideration. The stress is clearly on facts and not on the penal section applied to those facts."
With respect, I fully agree with the quoted observations. The same principle, in my opinion, also applies in considering the question whether a fresh consent would be necessary for continuing the prosecution initiated under the PFA Act where the report of the Public Analyst instead of getting confirmed stands wholly negatived to the advantage of the accused during the continuance of the proceeding by the certificate of the Director of Central Food Laboratory which at the same time discloses some new facts indicating an offence under the PFA Act.
16. It requires no much deliberation for appreciating that the purpose of the requirement of sanction or consent wherever such requirement has been prescribed by law is to ensure the preliminary satisfaction of the concerned authority about the necessity or desirability of instituting a prosecution in the particular facts and circumstances of a case by application of mind to the essential facts. The compliance of this requirement cannot be bypassed by taking recourse to any threshold theory that once a prosecution has been validly instituted or a cognizance has been taken validly, there cannot arise any question, in any circumstances, of fresh consent at any subsequent stage of the proceeding even if some essential facts on which the prosecution was instituted stand wholly dislodged and replaced by new facts. The jurisprudence of the requirement of consent or sanction as illustratively manifested in the provision of Section 216(5), Cr. P. C. demands that instead of treating the question of consent or sanction as a mere threshold question, the same must also be allowed to raise its demand at a later stage also if the facts and circumstances so warrant. Therefore in a case where the prosecution is started on the basis of a report of the Public Analyst with the consent of the appropriate authority accorded on the basis of such report but the report of the Public Analyst during the continuance of the proceeding is totally overturned and negatived to the point of no offence by the subsequent certificate of the Director of Central Food Laboratory thereby requiring the original prosecution to fail, but such certificate of the Director however discloses certain new facts on the basis of which a prosecution may be tenable under law such new facts should be considered by the appropriate authority for recording whether he would consent to prosecution on the basis of such new facts disclosed by the certificate of the Director. It is needless to mention that adulteration of food is a very serious offence and the offenders, therefore, must be brought to book in the interest of the public. It is also necessary that such offences should be dealt with very expeditiously. In the circumstances, it is not desirable that a prosecution already launched under the PFA Act should be dismissed straightway simply because the report of the Public Analyst regarding the nature of adulteration is overturned to the point of no offence by the certificate of the Director which nevertheless discloses new facts indicating an offence under the PFA Act. To relegate the matter to the initial level of starting a fresh prosecution with the fresh consent of the appropriate authority on the new facts concerning adulteration as may be disclosed in the certificate of the Director, will only entail delay which is undesirable both from the prosecution point of view and the view point of the accused. With a view to avoiding delay, unnecessary repetition of avoidable exercises like summoning the accused afresh and prolonged suspense for the accused as to whether a fresh prosecution would be instituted on the basis of the certificate of the Director as well as for avoiding multiplicity of proceedings, it is desirable that in consonance with the rationale behind the requirement of consent or sanction as reflected in Section 216(5), Cr. P.C. the question of fresh consent should rather be considered by the appropriate authority in the existing proceeding itself. In such case, the Magistrate should therefore give an opportunity to the prosecution to obtain the consent of the appropriate authority for continuance of the prosecution on the basis of new facts regarding the nature of adulteration disclosed in the certificate of the Director where the success of the prosecution depends on such new facts. For that purpose after obtaining the certificate of the Director, the Magistrate may adjourn the proceeding for a reasonable period not exceeding, say two months so that the prosecution may in the meantime place the certificate of the Director before the ' appropriate authority for consideration of the question of consent for continuance of prosecution on the basis of such new facts disclosed in the certificate of the Director. If within the aforesaid time consent is produced, or alternatively no such consent is produced before the Magistrate, the Magistrate will then proceed, in either case, in accordance with law.
17. No such fresh consent however will be necessary where the report of the Public Analyst is supported or sustained by the certificate of the Director although such certificate supersedes the report of the Public Analyst. It may be noted here that mere difference in the percentage or extent of the offending deficiency or deviation from the prescribed standard in respect of an item of test between the report of the Public Analyst and the certificate of the Director will not be construed as an alteration of the nature of adulteration where notwithstanding such difference the finding in respect of such item of test in both the report and the certificate indicates infraction of the prescribed standard in respect of that item. As for example, the prescribed standard for cow milk is that its milk fat content shall not be less than 3.5 per cent, and its milk solids non-fat content shall not be less than 8.5 per cent. Both the Public Analyst and the Director of Central Food Laboratory perform tests in respect of both items of the prescribed standard. According to the report of the Public Analyst the sample of milk is adulterated on the ground that the milk fat content is found to be only 3 per cent, and according to the Director it is adulterated because the milk fat content is found to be 2 per cent. Here in spite of the difference of percentage between the report of the Public Analyst and the certificate of the Director in respect of the same item of test the nature of adulteration does not change.
18. Now, to the facts of the present case. We have already seen that the certificate of the Director shows that the sample of tea conforms to the prescribed standard in respect of the items stated in the report of the Public Analyst as non-conforming to the same. Therefore the prosecution based on the alleged infraction of the prescribed standard as mentioned in the report of the Public Analyst must fail. But as we have seen the certificate of the Director records an opinion that the sample does not conform to the standard of tea as per PFA Rules, 1955 and it appears from the finding recorded under the column 'Microscopic examination' that the sample contains tea structure and cashew husk structure. It is argued on behalf of the petitioner that since all other items of test have been found by the Director to be conforming to the prescribed standard, the mere opinion recorded by the Director on microscopic examination that the sample contains cashew husk structure besides tea structure will not render the tea adulterated, because, unlike some other articles of food where total or partial exclusion of foreign materials has been mentioned in connection with the standard prescribed for such articles of food, for tea there is nothing in the prescribed standard under A. 14 to show that exclusion of foreign materials is a requirement of the prescribed standard. Secondly it is submitted on behalf of the petitioner that opinion about the existence of cashew husk structure on the basis of microscopic examination is not sustainable and therefore no prosecution on that ground is tenable. In my opinion the stage is yet premature for coming to a final decision on these two aspects of the matter. It is however difficult to subscribe to an argument that in spite of existence of foreign materials tea can never be considered adulterated on that ground. In this connection, it is also to be mentioned that under serial A. 14 in the Appendix B to the PFA Rules, 1955 it has been laid down thus :
" 'tea' means tea, other than Kangra tea, derived exclusively from the leaves, buds and tender stems of plants of the Camellia genus and tea species and includes (i) leaf, (ii) broken, (iii) fanning and (iv)dust".
(Emphasis supplied).
In my opinion the expression 'derived exclusively from' as used in the definition of tea quoted above clearly excludes foreign materials. Therefore foreign materials that is, materials not derived exclusively from the leaves, buds and tender stems of plants mentioned in the definition, if mixed with tea, may render the tea adulterated.
19. The learned Advocate for the petitioner has relied upon the decision of Supreme Court in Jagdish Chandra v. State of U.P. , in support of his argument that mere microscopic examination is of no consequence for coming to a conclusion that the article of food is adulterated and that being so, no prosecution can proceed on the opinion of the Director recorded on the basis of microscopic examination. In the said case sample of certain article of food was taken as sample of Cinnamon (Dalchini). The Public Analyst performed only microscopic test and opined that the sample examined by him was not Cinnamon at all but contained cent, per cent. foreign bark. The defence plea was that the sample was sold not as Dalchini but as Chini Dalchini. The Supreme Court in that case observed that as the sample was not subjected to any chemical test or analytical process, the opinion of the Public Analyst was not entitled to any weight whatsoever. In his testimony, obviously during trial, the Public Analyst stated that the only test performed to identify the sample in his laboratory was microscopic examination and he frankly conceded that they did not have any procedure of subjecting the sample of Dalchini to a microchemical test. Furthermore, the Public Analyst revealed*4n his testimony that on the date when the sample was examined there was no standard prescribed for Chini Dalchini. The prescribed standard was for Dalchini whole or powder and it was only at a later time that a standard was prescribed for Chini Dalchini. It is therefore evident that the facts in the two cases, one considered by the Supreme Court in the said decision and the other in our present case are quite different in substantial respects. In the case considered by the Supreme Court the accused was already convicted and sentenced under Section 7/16(1)(a)(i) of the Prevention of Food Adulteration Act after full trial in which the Public Analyst was examined and got sufficient opportunity to explain his report. The Supreme Court considered the statement and explanation offered by the Public Analyst in his testimony and found that the same was of no help to the prosecution. Also, in the said case no chemical test whatsoever was done and the opinion recorded was that the sample was not Cinnamon at all but contained cent per cent foreign bark. There was also a controversy as to whether the article was sold as Dalchini proper or Chini Dalchini which are two different things differing in price to a great degree. In our present case it is not that the sample was not at all examined chemically. It was examined chemically and was . found to conform to various standards prescribed for tea thereby confirming that the sample indeed contained tea. Unlike the facts of the Supreme Court case, here therefore it is not a case that the sample was not tea at all. Unlike the Supreme Court case, there is no controversy in our present case that the sample was not sold as tea. Besides chemical examination, on microscopic examination, however, the Director of the Central Food Laboratory has found that the sample also contained cashew husk structure. Before applying the said Supreme Court decision where the Public Analyst in his testimony could not offer satisfactory explanation in support of the prosecution or in support of his report, in the present case the prosecution must be given opportunity to lead evidence and if necessary to examine the Director of the Central Food Laboratory who issued the concerned certificate so that he may get an opportunity to explain his report and thereafter the Court will consider the certificate in the light of the evidence that may be adduced in the case as was done in the case considered by the Supreme Court. In the circumstances, I find the stage premature yet to quash the prosecution on the ground of any infirmity in the certificate of the Director of Central Food Laboratory.
20. Since however the certificate of the Director of Central Food Laboratory discloses a totally different kind of adulteration than what was mentioned in the report of the Public Analyst and since the report of the Public Analyst has been totally overturned and negatived to the point of no offence by the certificate of the Director, Central Food Laboratory, I must hold that the prosecution cannot continue on a totally new fact about the nature of adulteration as indicated in the certificate of the Director without obtaining necessary consent from the appropriate authority.
21. I therefore direct that the learned Municipal Magistrate, before proceeding further, will give the prosecution an opportunity to place the certificate of the Director, Central Food Laboratory before the appropriate authority for consideration of consent for continuance of the prosecution and in the event no such consent of the appropriate authority is obtained and produced before the learned Municipal Magistrate within a reasonable time not exceeding two months as may be allowed by the learned Magistrate for the purpose, the learned Magistrate shall discharge the accused and drop the present proceeding. In the event any such consent is obtained and produced by the prosecution within the time mentioned above, the learned Magistrate will proceed with and dispose of the present proceeding in accordance with law. The revisional application stands disposed of accordingly.