Calcutta High Court
Om Prakash Shaw vs Raniganj Municipality And Anr. on 8 March, 1989
Equivalent citations: 1989CRILJ1793
JUDGMENT A.M. Bhattacharjee, J.
1. The Food Inspector, who has filed this complaint, is admittedly not authorised to do so under the provisions of Section 20(1) of the Prevention of Food Adulteration Act, 1954 and as such can only do so with the written consent of a competent authority as specified in Section 20(1). Such a written consent appears in the body of the complaint itself; has assailed the validity of that 'written consent' and but Mr. Ghosh, the learned Counsel for the accused-petitioner, has sought to fortify his contention on the strength of some observations in a two-Judge Bench decision of the Supreme Court in A.K. Roy v. State of Punjab . It appears that in that case the Supreme. Court has observed(at p. 2165) (of AIR) : (at p. 2041 of Cri LJ) that the authority "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(s) his reasons for the launching of such prosecution in the public interest". Looking at the written consent in the body of the complaint, we, however, entirely disagree with the contention of Mr, Ghosh that the written consent endorsed on the complaint shows that the authority was not and could not have been satisfied that "a prima facie case exists in the facts of the case". The fact of exposing for sale and selling mustard oil for human consumption by the alleged offender, of the Food Inspector taking sample therefrom and sending the same to the Public Analyst and the receipt of the report of the Analyst showing the food to be adulterated, clearly appeared in the body of the complaint on which the "written consent" itself was endorsed and on the materials on record at present it cannot be presumed that the authority according the consent could not or did not take note of all these materials, including the original Report of the Public Analyst which was also attached by that authority to its order according consent. And if that is so, then we do not know what more could be necessary for the authority to be satisfied that a prima facie case has been disclosed on the materials before it. We do not think it to be the law that the authority according written consent must hold some sort of Committal Inquiry, as understood in our Code of Criminal Procedure, before it can accord consent to prosecution and we have no doubt that going to such a length would be out-stretching these provisions beyond all legitimate and legally permissible limits.
2. Mr. Ghosh has, however, urged that, as observed in A. K. Roy (supra), the authority according consent is to "record his reasons for launching of such prosecution in the public interest", but that there is nothing in the written consent or anywhere in the record to show that the authority has made any such record. We do not think that Mr. Ghosh is right in relying on those observations as authority for the view that not only the authority must apply its mind to the relevant and material facts before according consent, but must also further recite in so many words, almost in the form of ritualistic chanting, that launching of prosecution is necessary in the public interest. As the Supreme Court has repeatedly cautioned us, we must not treat each and every observation in its judgment as if it were Statute or a Scripture, but we must try to ascertain the reason behind the observations, after reading the judgment as a whole and that, wherever possible, in the light of and in tune with its earlier observations on the point.
3. We must note that the question as to how a written consent under Section 20(1) of the Prevention of Food Adulteration Act was to be accorded and/or what it should contain was not in issue, even remotely, before the two-Judge Bench of the Supreme Court in A. K. Roy (1986 Cri LJ 2037) (supra) and the only question that arose for determination was whether a person or authority, being authorised by the Government only to institute complaint, can, in his or its turn, authorise another person to institute the same, and the Supreme Court, on a consideration of the relevant provisions of Section 20 and other provisions returned a categorical negative answer. The observations relied on by Mr. Ghosh, extracted hereinabove, were therefore, obviously obiter. We surely cannot brush aside observations of the Supreme Court, even if mere obiter; but as we shall indicate hereinafter, we cannot read obiter as a blanket algebraic formula, but must try to understand the same in consonance and in conformity with the observations in the earlier or later decisions on the point, where they are more in the nature of ratio rather than obiter.
4. In the three-Judge Bench decision of the Supreme Court in State of Bombay v. Parshottam Kanaiyalal , the validity of 'written consent' and as to what it should contain were very much in issue and there the three-Judge Bench has only ruled that the view that before granting a written consent, the competent authority "should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable". Now, whether we look to the decision of the Privy Council in Gokulchand Dwarkadas v. The King AIR 1948 PC 82 : 1948 (49) Cri LJ 261 or to the decision of the Supreme Court in Jaswant Singh v. State of Punjab or to its much later decision in Mohd. Iqbal Ahmed v. State of A.P. , the law on the point appears to be firmly well-settled to the effect that the Court must be satisfied that all the relevant facts constituting the offence were placed before the authority concerned so that it could accord sanction after applying its mind thereto and as ruled in Gokulchand Dwarkadas (supra) and reiterated in Jaswant Singh (supra), these sanctions need not emanate in any particular or set form. If all the relevant facts constituting the offence were placed before the authority according the sanction, the presumption should be that such authority duly applied its mind before granting sanction, unless it can be demonstrated from the materials on record that it could not and did not apply its mind, there being always a presumption, even though permissive only, in favour of the official acts having been regularly performed. I f the materials produced before the authority were such as to warrant its satisfaction as to the advisibility of launching the prosecution, the Court should presume that the authority concerned was duly satisfied, even though it has not articulated such satisfaction in express words. In view of this catena of earlier decisions of our apex Courts, pre-independence as well as post-independence, we take the law to be that all that is necessary to show is that all the relevant facts constituting the offence were placed before the concerned authority before it granted sanction. And once that is shown to have been done, then we would like to think that, application of mind by, and satisfaction of, the authority concerned should be presumed, unless, as already indicated, it becomes manifest that there was and could in fact be no such application and satisfaction.
5. We have, however, come across an unreported decision of a learned single-Judge of this Court in Upendra Nath Sadhukhan v. P.K. Sur Criminal Revn. No. 1683 of 1987, disposed of on 4-8-88, where the learned Judge has quashed a proceeding under the Prevention of Food Adulteration Act on the ground inter alia that the written consent in that case was accorded by the authority by merely endorsing the word "consented" on the petition of complaint. If the petition of complaint disclosed all the relevant materials justifying a written consent to the prosecution, the authority, in our view, should have been presumed to have applied its mind thereto and to have been satisfied as to the advisibility of launching the prosecution unless, as we have already indicated, it is disclosed from the evidence at the trial that the authority did not or could not do so. We called for the records of that case of Upendra Nath Sadhukhan both from this Court as well as from the Court of Municipal Magistrate and we are afraid, and this we say with due respect, that we cannot persuade ourselves to agree with the decision of the learned Judge and we respectfully dissent therefrom both on facts as well as on legal principles.
6. On going through the records of that case, we have found that in the petition of complaint (Ext. 11), all the relevant facts relating to the alleged offence were set out in details and it was also stated in paragraph 7 of that petition that "the Food Inspector duly submitted the records of the said inspection along with report of the Public Analyst to the Chief Health Officer of t he Calcutta Municipal Corporation, the Local (Health) Authority and after applying his mind gave written consent to file the prosecution before the respective Court". In his deposition also in that case, the Food Inspector, figuring as P. W. 2, asserted that he placed all the relevant documents including the Analyst's Report and the draft complaint along with his own written note (Ext. 10) and the authority concerned accorded written consent on consideration of all these materials, and it should be noted that there was no cross-examination on behalf of the accused on these aspect. Ext. 10 also, the note of the Food Inspector submitted to the authority, clearly revealed that all the relevant materials were placed before the authority whereupon the authority concerned accorded consent (Ext. 10/1) as follows:
F.I., P.K. Sur Papers Scrutinised, Consented and signed.
P1. Prosecute.
We are inclined to think that the said revision having been heard ex parte without any one representing the Municipal Corporation or the State, the attention of the learned Judge was not duly drawn to these evidence, both oral and documentary and we have no doubt that if the attention of the learned Judge could be drawn to these Ext. 10, Ext. 10/1, Ext. 11 and the deposition of the Food Inspector, the learned Judge would not have held the prosecution to be bad for want of a proper written consent.
7. As to the law on the point, as we have already indicated, we are of the view that if the petition of complaint contains all the relevant particulars and avers that all the relevant material's were placed before the authority for according consent, and the authority accords such consent by endorsing "consented" on the complaint, there should be a presumption that t he authority has done so after applying its mind and was, therefore, satisfied that a prosecution was necessary, unless and until such presumption stands dislodged by any other or further materials or evidence on record. And once such a written consent is accorded for the prosecution of an offence under the Prevention of Food Adulteration Act for dealing in adulterated food, there should be no doubt that the authority was satisfied that the prosecution for such an anti-social offence, not a mere mala prohibita but a mala in se, was in the public interest. The observations in A.K. Roy (supra) only stressed the importance of the satisfaction of the authority concerned as to the advisibility of initiating prosecution, quite in tune with the earlier decisions of the Privy Council and in the Supreme Court referred to hereinabove. But to read those observations as a judicial fiat to the effect that not only the authority must be proved to have been satisfied as to the existence of a prima facie case and the advisibility of prosecuting the offender, but that the authority must also state formally in a ritualistic manner that it was so satisfied, would be giving undue weightage and precedence to mere formalities over substance.
8. As we have already indicated, the Supreme Court in A, K. Roy (1986 Cri U 2037) (supra) was not at all concerned with this question and the observations were obviously obiter. But even otherwise, that the Supreme Court in making those observations could not rule the recording of such satisfaction in the written consent itself as a mandatory requirement would be obvious from the decision of the Privy Council in Gokulchand Dwarkadas (1948 (49) Cri LJ 261) (supra) and the decisions of the Supreme Court in Jaswant Singh (1958 Cri LJ 265) (supra) and Mohd. Iqbal Ahmed (supra), which have authoritatively laid down that while it may be desirable that the relevant materials and the consideration thereof should appear from the written consent, nothing would prevent the prosecution from proving such consideration by and satisfaction of the authority concerned by evidence aliunde dehors the formal sanction. A prosecution, therefore, cannot be thrown out merely and solely on the ground that the written sanction or consent does not expressly spell out the relevant facts or their proper consideration and the resultant satisfaction of the authority, for, as laid down in those decisions, the prosecution is entitled to prove all these even at any later stage during the trial by evidence aliunde and it may not be possible to conclude that the prosecution has failed to do so until the evidence is closed. The prosecution evidence is not necessarily closed on the framing of the charge and, therefore, assailing the prosecution at or after the stage of framing of the charge, on the ground that the written order of consent or even the materials then on record do not prove such consideration of the relevant facts, materials, application of mind and formation of satisfaction, may well be rather premature.
9. We accordingly hold that the materials on record at present do not demonstrate that the written consent for the prosecution was accorded by the authority without application of mind to the relevant materials on record and without forming satisfaction as to the advisibility of the prosecution. We have also noted that, as would appear from the evidence of the Food Inspector, P.W. 2, the authority according the consent also served a copy of the Analyst's Report by registered post on the accused to enable him to challenge the same in due course and the accused has availed of that opportunity. This may also, though we do not decide the questions, be taken to be a demonstration of application of its mind and its follow-up. Be that as it may, on the materials as on record at present, we do not hold the prosecution to be incompetent and the resultant charge to be bad; but we make it clear that nothings stated by us herein would prevent the accused to raise the question of the invalidity of the 'written consent' at any later stage if on further materials, if any, as may hereinafter be brought on record, go to indicate that the requisite application of mind was not made and the necessary satisfaction was not or could not be formed by the authority concerned.
10. The revision accordingly stands rejected and the trial Court is directed to proceed with the trial as expeditiously as possible. Records, with a copy of our Order to go down at once.
A.K. Nandi, J.
11. I agree.