Andhra HC (Pre-Telangana)
The Senior Food Inspector, Ananthapur vs Ravuru Subbaiah on 28 August, 1991
Equivalent citations: 1991(3)ALT394, 1992CRILJ2289
JUDGMENT
1. These appeals are preferred by the State against the acquittal of the accused charged for offences committed by them under the provisions of the Prevention of Food Adulteration Act by various First Class Magistrates.
2. In all these cases the Food Inspectors of their respective Municipalities had launched prosecution against the accused-respondents for certain offences committed under the provisions of the Prevention of Food Adulteration Act (for short 'the Act'). In all these cases, the trial Courts acquitted the accused on the ground that the sanctioning authority has not applied its mind for according sanction for launching prosecutions by following the provisions of S. 20(1) of the Act. Hence the appeals by the State.
3. The crucial point that arises for consideration in these appeals is whether the consent order has been issued by the competent authority after perusing the Public Analyst's report and the detailed report of the Health Officer of the respective Municipality for launching the prosecution.
4. In this connection it is apposite to read S. 20(1) of the Act which is as follows :
"20. Cognizance and trial of offences :
(1) 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 Govt. or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or State Government."
The first part of S. 20(1) of the Act lays down the manner of launching prosecutions for an offence under the Act not being an offence under S. 14 of S. 14-A. The second part provides for delegation of powers by the Central Government or the State Government. It enables that prosecutions for an offence under the Act can also be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf, by a general or special order issued by the Central Government or the State Government. The use of the word "in this behalf" in S. 20(1) of the Act shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose, to authorise a designated person to institute such prosecutions on their behalf. The terms of S. 20(1) of the Act do not postulate further delegation by the person so authorised; he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and record his reasons for the launching of such prosecution in public interest.
5. In these cases according to the accused the Food Inspectors of the respective Municipalities have launched prosecutions without the written sanction from the competent authority which is mandatory under the provisions of S. 20(1) of the Act. It is well settled that for launching prosecutions, written consent of the competent authority is mandatory under the provisions of S. 20 of the Act. The Courts below have followed a decision of this Court reported in Adda Kasivisweswara Rao v. State of A.P., 1990 (3) ALT 220, and found that the mandatory provisions as laid down in S. 20(1) of the Act in obtaining sanction for prosecution have not been followed and the order that has been passed by the sanctioning authority is not in proper form.
6. The learned Public Prosecutor contends that the consent for launching prosecutions is a speaking order, that the sanctioning authority has applied its mind to the facts of the case for launching prosecutions before giving consent and therefore the orders of acquittal passed by the Courts below are unsustainable. In support of his contention he relied on a decision of the Supreme Court reported in State of Bihar v. P. P. Sharma, .
7. It is useful to notice the consent order in one of cases i.e. Crl.A. No. 888/91 which reads as follows :
"Having considered the case, the Food (Health) Authority, Andhra Pradesh, Hyderabad accords sanction to launch prosecution under the provisions of P.F.A. Act, 1954 and P.F.A. Rules, 1955 against the vendor and supplier in respect of sample No. R/6904/F1/ZI/MMR/84 of Biscuits which is found to be adulterated vide Public Analyst Report No. 588/84, dt. 5-9-1984."
8. In each and every case whether the consent that has been given by the authority is based on the material that was available with that authority or not is the question.
According to Chambers 20th Century Dictionary, 'consent' means :
"v.i". to be of the same minds to agree; to give assent; to yield; to comply.. v.t. to agree; to allow (Milt)--n. agreement; according with the actions or opinions of another, concurrence."
One of the meanings given to the word "consent" is Stroud's Judicial Dictionary."
"'consent' is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side."
Another meaning given to the same word in the same Dictionary is :
(9) "Consent of the local authority" to prosecute (Weights and Measures Act, 1904 (c. 18) S. 14), did not require that such consent must be given in each particular case; a general authority to the inspector suffices (Tyler v. Ferris, (1908) 1 KB 94)".
"Sanction", according to Chambers 20th Century dictionary means :
"n. notice for obedience to any moral or religious law (ethics) a penalty or reward expressly attached to non-observance or observance of a law or treaty (law) : a military or economic measure taken by a certain course of action; the act of ratifying; or giving authority; confirmation support; permission, countenance-v.t. to give validity; to authorise; to countenance."
According to Stroud's Judicial Dictionary, 'Sanction' means :
"Sanction" not only means prior approval; generally it is also means rectification."
9. In cases of arising under Prevention of Food Adulteration Act, for prosecuting a person said to have committed an offence under the Act, the report of the Public Analyst is the main basis to find out whether there is adulteration and if there is adulteration of the food article supported by the other evidence, the authority can given consent to the concerned authority for launching prosecution. Under S. 197, Cr.P.C. sanction is necessary for prosecuting Public servants.
10. Courts have consistently found that the sanctioning authority must give reasons in order to arriving at a conclusion whether sanction has to be granted or not. If there is any lacuna in the sanction order, the entire prosecution vitiates and the accused is entitled for benefit of doubt. The same yardstick cannot be applied in the cases under the Prevention of Food Adulteration Act where the Legislature intentionally and designedly used the word 'consent' but not the word 'sanction'. There is a world of difference between the two words. My learned Brother, Bhaskar Rao, J. in Kasi Vesweswara Rao's case (supra) held that the sanctioning authority must first state what is adulterated as per the report of the Public Analyst and material it has perused and then (then) what are the reasons for granting the sanction in the light of the public interest. The learned Judge has referred to a decision of the Bombay High Court in Gahininath v. State of Maharashtra, 1988 Cri LJ 48, wherein it was held :
"The order under S. 20 sanctioning prosecution of the offender should not be vague and omnibus. The sanctioning authority may point out the relevant particulars on the basis of which the prosecution was based. It is not enough to fill up the blanks in the pro forma of the sanction order which demonstrates total non-application of mind on the part of the sanctioning authority. Therefore, the sanctioning authority should not only apply its mind to the facts and circumstances to be satisfied that prima facie case existed but also record reasons why launching of prosecution against the offender is necessary in the public interest."
11. The learned Judge ultimately came to the conclusion following the decision in Gahninath's case and also a decision of the Supreme Court in A. K. Roy v. State of Punjab, , that the sanctioning authority should not only apply its mind to the facts of the case but also give its reasons for according sanction.
12. While dealing with a similar case, Ranga Reddy, J. in B. Raja Gowd v. The State, 1990 (2) ALT 546, observed :
"According to the latest law laid down by the Supreme Court the sanctioning authority is not only required to apply its mind to the facts of the case but it should satisfy itself that there is prima facie case and should also record reasons for launching prosecution and also specify that it is necessary in the public interest."
Unfortunately, no attempt has been made either in the judgment of the Bombay High Court or this Court in the decisions cited supra, that there is distinction with regard to the language that has been adopted by the Legislature in S. 20(1) between the words 'consent' and the word 'sanction'. The essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice which in turn depends on sufficient information and time being given to the party concerned to enable it to tender useful advice. When the Food Inspector (Health) has forwarded the report about the commission of the offence to the Competent Authority seeking his consent along with a detailed report and the report of the Public Analyst, and when the authority accorded sanction after considering the report of the Public Analyst and the report of the Food Inspector, it cannot be said that the consent given by the Competent Authority is not valid. Simply because the Competent Authority used the words 'sanction' in the order which made the Courts to consider that 'sanction' which is mandatory is required but not 'consent', the accused-persons who have committed the offence cannot escape the clutches of law.
13. In a latest decision reported in State of Bihar v. P. P. Sharma, , while dealing with the contention of the respondents therein that the composite order granting sanction under S. 197, Cr.P.C. and S. 15-A of the Essential Commodities Act was vitiated because of non-application of mind on the part of the competent authority, it was held at page 1272 :
"To comply with the provisions of S. 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charges are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the Court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution."
The Supreme Court further observed :
"The sanctioning authority has specifically mentioned in the sanction order that the papers and the case diary were taken into consideration before granting the sanction. Case diary is a complete record of the police investigation. It contains total material in support or otherwise of the allegations. The sanctioning authority having taken the case diary into consideration before the grant of sanction it cannot be said that there was non-application of mind on the part of the sanctioning authority."
In the same judgment, Ramaswamy J., in a separate judgment observed :
"It is equally well settled that "before granting sanction the authority or the appropriate Government must have before it, the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts". The order of sanction only is an administrative act and not a quasi-judicial nor a lis involve. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard ... Proper application of mind of the existence of a prima facie evidence of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the Government accorded sanction, S. 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the Court is sine qua non of taking cognizance of the offence."
14. Taking into consideration the considered view expressed by the Supreme Court in the latest judgment, extracted above and after reviewing the entire case law a presumption has to be drawn under S. 114(e) of the Evidence Act that consent has been given by the Competent Authority after perusing the material. If the consent given by the competent authority is not proper, it is for the accused to attack the same. But the courts below have simply followed the judgment of this Court in Kasi Visweswara Rao's case (supra), as the judgment is binding on the lower courts. Though the word 'sanction' has been used in the order, it indicates that the report of the Public Analyst has been placed before the Competent Authority. If the report of the Public Analyst along with the report of the Food Inspector is taken into consideration it cannot be said that the consent order suffers from any vice on account of non-application mind. In view of the latest law laid down by the Supreme Court which has been extracted above, it cannot be said that the consent order issued by the competent authority duly taking into account the report of the Public Analyst is bad in law. Since the learned Judges of this Court in the two judgments cited above have not taken into consideration the distinction between "sanction" and "consent" either in their true meaning of in their application by the concerned authority, this Court feels that what is required in cases like this is only a 'consent' but not 'sanction' and the order given by the Competent Authority satisfies the requirements of consent. It is for the accused to rebut that the application of mind of the competent authority is not there. Then only the burden shifts to the Court to satisfy itself to arrive at a conclusion whether the consent that has been given is a proper consent or whether the consent has been given by the competent authority without perusing the entire material before tendering the consent. Following the latest law laid down by the Supreme Court in State of Bihar v. P. P. Sharma, a presumption has to be drawn under S. 114(e) of the Evidence Act that the competent authority must have before it the necessary material which prima facie establish the commission of offence charged for and the competent authority had applied its mind before tendering the consent. In the case of consent all the reasons need not be set out. In the present case also, the consent order reveals that the competent authority considered the report of the Public Analyst which prima facie establishes that the food articles have been adulterated and the Analyst's reports have been marked in all the cases.
15. Adulteration of food articles is a social evil, and the Courts cannot let loose the offenders on mere technical grounds. By taking technical pleas the gullible traders are escaping from the clutches of and the ultimate sufferers are the poor consumers and some times the consumption of the adulterated food articles is proving fatal. Trial courts should not take any lenient view in such matters.
16. Since the order of acquittals in these cases are based on the judgment of this Court in Kasi Visweswara Rao's case (supra) and the distinction between 'consent' and 'sanction' has not been considered earlier considering the latest law laid down by the Supreme Court in State of Bihar v. P. P. Sharma, , and as benefit has already been given to the accused, it is not desirable for this Court to interfere with the order of acquittal at this point of time in cases of appeals filed by the Public Prosecutor against acquittal of the accused.
17. With the above observations, the appeals are dismissed.
18. Appeals dismissed.