Calcutta High Court
Ashim Kumar Dutta vs State Of West Bengal And Anr. on 3 April, 1989
Equivalent citations: 1989CRILJ1797
JUDGMENT A.M. Bhattacharjee, J.
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 t he 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 t hat 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 judgment 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 Under Section 16 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 : 1948 (49) Cri LJ 261, endorsed by the Supreme Court, among others, in Jaswant Singh v. State of Punjab and reiterated in Mohd Iqbal Ahmed v. State of A.P. , 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 8-3-89 : (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 judgment 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.
4. The next ground urged by Mr. Banerjee is that though the complaint was instituted for the offence of storing and exposing for sale of "adulterated" food for human consumption, and the preceding 'written consent' was also for prosecution for such offence and the charge originally framed was also for such offence only, the charge was thereafter altered to one for storing and exposing for sale "misbranded" food only and the accused-petitioner has been convicted on such charge. But, according to Mr. Banerjee, since there was no 'written consent' for the prosecution for the offence relating to misbranded food, the written consent being exclusively confined to offence relating to adulterated food, the conviction was patently imcompetent on that score alone and Mr. Banerjee has relied on a single Judge decision of the Bombay High Court in State of Maharashtra v. Nizamuddin Hazi 1979 Cri LJ 274, for the purpose. We think that Mr. Banerjee could have referred to much more conspicuous and binding authorities on the point, for example, the decision of the Supreme Court in Jaswant Singh v. State of Punjab (supra) for such a proposition, where the earlier decision of the Federal Court in Hari Ram Singh v. Emperor AIR 1939 FC 43 : 1939 (40) Cri LJ 468 and that of the Supreme Court in Basir-Ul-Hug v. State of W.B. were referred to and relied on and the view appears to be that where a previous sanction is a condition precedent, the accused cannot be convicted for an offence while the sanction is for some other offence.
5. But it appears that in the body of the complaint (Ext. 10), wherein at the foot of the competent authority accorded its written consent, as well as in the report of the Public Analyst which was placed before that authority as noted in the Forwarding Note (Ext9) of the Food Inspector, the article of food was condemned as both adulterated and misbranded, and, therefore, according to the ratio of our decision in Om Prakash Shaw (1989 Cri LJ 1793) (supra), the written consent recorded in Ext. 9(1) and also endorsed on the complaint (Ext.10) must be treated as one for prosecution for the offence relating to both adulterated as well as misbranded food. And that being so, the conviction cannot fail for want of a requisite written consent as urged by Mr. Banerjee.
6. In the complaint, the allegation was that the accused-petitioner stored and exposed for sale food which was "adulterated/misbranded". This may not be a very happy expression and we are told that Lord Simon once condemned the use of the expression "and/or" as the "use of bastard conjunction" (See, J.J.S. Rodrigues v. Union of India AIR 1967 Goa 169 at p. 186). But the user of such an expression, as here, with an obliquestroke in between the words are quite common and denotes the idea of conjunction and, therefore, all that was meant by the expression "adulterated/misbranded" was that the article of food was both the one and the other. We cannot allow the accused to go scot-free simply because our officers do not know or use Queen's English.
7. But notwithstanding all these, we are afraid that we would have to quash the impugned conviction, for we have our doubts as to whether, even after accepting the findings arrived at by both the Courts below, the charge as finally framed can at all be said to have been proved beyond reasonable doubt. The charge relates to 'misbranding' of curry-powder Under Section 2(ix)(k) whereunder an article of food shall be deemed to be ' misbranded' if it is not labelled in accordance with the requirement of this Act or the Rules made thereunder. Under Rule 42(1), "every package of curry-powder shall bear a label upon which is printed a declaration giving the names of spices in descending order of composition on wt./wt. basis". It is admitted that the accused-petitioner is a wholesaler and is the director of a company which is a wholesaler and which does not sell in retail. It is not disputed that they sell in large packages containing about 40 small packets therein and that the sample in this case was taken by the Food Inspector by tearing out such a large package. It is also admitted that on such large package, in which the accused-petitioner sells as a wholesaler, there was printed the requisite declaration giving the names of spices in descending order of composition as required by Rule 42(1). It is true that the smaller packets weighing about 25 grams each within the large package did not individually bear any such declaration and accordingly, any one selling such small packets separately would be doing so in non-compliance with the requirements of the Rule 42(1). But once it is accepted that the package in the shape and the form in which the accused and his company, as wholesaler, distributes or sells curry-powder, bears the requisite declaration, and that the accused and his company do not deal in small packets or in any package which does not bear the requisite declaration, it would not be unreasonable to hold that the accused, dealing as a wholesaler in such large package bearing the requisite declaration, is not guilty of non-compliance with the Rule, It may be that since the smaller packets do not separately bear any such declaration, any retailer to whom the accused would be selling the large package and who, in his turn, would be selling the smaller packets in retail, would be guilty of non-compliance with the relevant Rule. But we are concerned here with the accused only, who and whose company are admittedly wholesalers only and the clear prosecution evidence is that the packages in which they sell or distribute curry-powder as wholesalers bear the requisite label. Can they still be liable for non-compliance with the Rule and dealing in misbranded food? The three-Judge Bench of the Supreme Court in Bhagwan Das v. Delhi Administration appears to be an authority for the view that before a dealer, whether manufacturer, wholesaler or retailer, can be convicted for storing or exposing for sale or selling adulterated or misbranded food, it must be shown that the food was already adulterated or misbranded before he "parted with the article of food". Be it noted that here the article of food was found on examination by the Central Food Laboratory not to be adulterated and there cannot be any two opinions that offence of adulteration is a grave menace to the health and well-being of the community, makes a heavy dent in the already low nutritional standard prevailing in our country and that a major offensive against such a social offence is now a dire necessity. But even then, in cases of offence relating to adulteration of food also, we have not, as yet, departed from the principle well-settled in our Criminal Jurisprudence that, where two views are reasonably possible, one favouring the accused and the other favouring a conviction, the former, as pointed out by the Supreme Court, even in a case under the Prevention of Food Adulteration Act, in Dhan Kumar v. Municipal Corporation of Delhi , has got to be accepted And as already noted, this is not a case of adulteration of food and even the appellate Court at one stage has observed that it may be that the accused-petitioner was under the impression that the smaller packets were not required to be labelled as he and his company, as wholesaler, sell only in large packages and not in smaller packets.
8. It may be true that even though the accused as wholesaler distributes in larger packages duly labelled as per the Rules, since the larger package contains smaller packets without label, that might lead to the retail-sellers selling those smaller packets without complying with Rule 42( I). But, as already noted, we are here concerned with the present accused, who undisputedly deals in wholesale in larger packages only and those packages are duly labelled and, therefore, not misbranded If the law has obliged a dealer to duly label the package, the dealer is obliged to label the package in the shape and form in which he deals with the same. At least such a view, to our mind, is not unreasonable, even if the other view that he must take care also of the smaller packets in which the retailers would eventually sell, is also not unreasonable. And if both these views are thus reasonably possible, then as rules by the Supreme Court in Dhan Kumar (1979 Cri LJ 1343) (supra), the former view in favour of accused would have to be accepted and the accused would have to be acquitted.
9. We would, therefore, make the Rule absolute, quash the order of conviction and sentence passed by the Courts below and acquit the accused. The accused would be discharged from the bail-bond and the fine, if paid, shall be refunded. The records, with a copy of our order to go down at once.
A.K. Nandi, J.
10. I agree.