Dhian Singh Vs. Municipal Board,
Saharanpur [1969] INSC 161 (31 July 1969)
31/07/1969 HEGDE, K.S.
HEGDE, K.S.
SIKRI, S.M.
MITTER, G.K.
CITATION: 1970 AIR 318 1970 SCR (1) 736 1969
SCC (2) 371
ACT:
Prevention of Food Adulteration Act (37 of
1954), s. 20--Scope of-- Complaint signed by Food Inspector but Municipal Board
shown as complainant--Appeal by Municipal Board under s. 417(3) Code of
Criminal Procedure (Act 5 of 1898)--Maintainability not questioned in High
Court--If question can be raised in the Supreme Court--Public Analyst, report
of--When can form basis of conviction.
HEADNOTE:
On a report of the Public Analyst that the
coloured sweets sold by the appellant were adulterated a complaint was filed
before the Magistrate under s. 7, read with s. 16 of the Prevention of Food
Adulteration Act. The trial court acquitted the appellant. In appeal by the
Municipal Board under s. 417(3), Code of Criminal Procedure, the High Court
convicted the appellant. The appellant did not raise any objection as to the
maintainability of the complaint or of the appeal, either in the trial court or
in the High Court before the appeal was disposed of, on the ground that the
Municipal Board was shown as the complainant and the complaint was signed by
its Food Inspector. In appeal to this Court, it was contended that: (i) the
appeal filed by the Municipal Board in the High Court was not maintainable in
law as the complaint had been instituted by the Food Inspector and not by the
Municipal Board; (ii) a permission under s. 20 of the Act was a condition
precedent for validly instituting a complaint and the fulfillment of that
condition had to be satisfactorily proved before the Court could exercise
jurisdiction to try the case; and (iii) the appellant could not have been convicted
on the strength of the certificate of the Public Analyst.
HELD: Dismissing the appeal, (i) Under s. 20
of the Prevention of Food Adulteration Act, it was competent for the Municipal
Board to authorise the Food Inspector to file the complaint. If the complaint
had been filed by the Food Inspector on the authority of the Board the
complaint must be held to have been instituted by the Board itself. The
question whether the Food Inspector was so authorised is a question of fact.
This was never put into issue and both the courts below and the parties before
them proceeded on the basis that the Municipal Board was the complainant and
the Food Inspector filed the complaint on its behalf. The appellant could not,
therefore, be permitted to take up the contention for the first time after the
appeal was disposed of in the High Court. [741 A-C] K.C. Aggarwal v. Delhi
Administration, Cr. A. No. 100 of 1966, dt. 27-5-1969, referred to.
(ii) There is no analogy between the section
and those provisions requiring sanction for the institution of certain criminal
proceedings. Under the section, no question of applying one's mind to the facts
of the case before the institution of complaint arises as the authority under
the section can be conferred long before a particular offence has taken place.
It is a conferment of an authority to institute a particular case or even a
class of cases. [741 G] 737 Gokal Chand Dwarkadas v. The King, 75 I.A. 30 and
Madan Mohan Singh v. State of U.P.A.I.R. 1954 S.C. 736, held inapplicable.
(iii) It is not necessary that the report of
the Public Analyst should contain the mode or particulars of analysis or the
test applied. But it should contain the result of analysis, namely, data from
which it can be inferred whether the article of food was of was not
adulterated. In the present case. the report of analyst did contain the data on
the basis of which the analyst came to his conclusion. [742 C-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 122 of 1967.
Appeal by special leave from the judgment and
order dated April 18, 1966 of the Allahabad High Court in Criminal Appeal No.
1642 of 1964.
R.K. Garg, S.C.Agarwal, Sumitra Chakravarty
and Uma Dutt, for the appellant.
O.P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Hegde J. Two contentions advanced in this appeal by special leave are (1) that
the appeal filed by the Municipal Board, Saharanpur before the High Court of
Allahabad under s. 417(3) of the Criminal Procedure Code was not maintainable
in law and (2) the accused could not have been convicted on the strength of the
certificate of the Public Analyst annexed to the complaint. The High Court
rejected both these contentions.
The material facts relating to this appeal
are these:
The accused in this case is proprietor of
Khalsa Tea Stall situated in Court Road, Saharanpur. Among other things, he was
selling coloured sweets. On suspicion that the sweets sold by him were
adulterated, the Food Inspector, Municipal Board, Saharanpur purchased from the
accused for examination some coloured sweets under a Yaddasht on May 31, 1963
and sent a portion if the same to the Public Analyst of the Government of U.P.
for examination.
The Public Analyst submitted his report on
June 24, 1963.
It reads:
"See Rule 7 ( 3 ) REPORT BY THE PUBLIC
ANALYST Report No. 11652.
I hereby certify that I, Dr. R.S.
Srivastava, Public Analyst for Uttar Pradesh,
duly appointed under the provisions of the Prevention of Food Adulteration Act,
1954, received on the 4th day of June 1963 from the 738 Food Inspector c/o
Medical Officer of Health, Municipal Board, Saharanpur, a sample of coloured
sweet (Patisa) prepared in Vanaspati No. 264 for analysis, properly sealed and
fastened and that I found the seal intact and unbroken.
I further certify that I have caused to be
analysed the aforementioned sample, and declare the result of the analysis to
be as follows:
Test for the presence of coal-tar dye
:--Positive.
Coal-tar dye identified :-- Metanil yellow.
(colour Index No. 138) ANALYTICAL DATA IN RESPECT OF FAT OR OIL USED IN THE
PREPARATION OF THE SAMPLE.
1. Butyro-refractometer reading at 40 dgree C
:-- 50.5.
2. Melting point :-- 33.80C.
3. Baudouin's test for the presence of Til
oil :Positive.
4. Tintometer reading on Lovibond Scale 4.0
Red Units plus
0.1 yellow unit coloured with a coal-tar dye
namely, Metanil Yellow (Colour Index No. 138) which is not one of the coal- tar
dyes permitted for use in foodstuffs under rule No. 28 of the Prevention of
Food Adulteration Rules, 1955.
No chance had taken place in the
constitutents of the sample which would have interfered with analysis.
Signed this 24th day of June 1963.
The sample belongs to :-- S. DHIAN SINGH S/O
JIWAN SINGH R.S. Srivastava M.Sc., LL.B. Ph.D. (Lond.) P.R.L.C.
Public Analyst to Govt. of U.P.
Sendor's address:
Public Analyst, Uttar Pradesh, Lucknow The
Food Inspector, c/o. Medical Officer of Health, Municipal Board,
Saharanpur." 739 On the basis of that certificate, a complaint was filed
in the court of City Magistrate, Saharanpur under s. 7 read with s. 16 of the Prevention
of Food Adulteration Act, 1954.
It is purported to have been filed by the
Municipal Board, Saharanpur but it was signed by its Food Inspector. The
accused pleaded not guilty. Various contentions were taken by the accused in
support of his defence. The trial court acquitted him taking the view that as
the report of the analyst did not contain any data, no conviction could be
rounded on its basis and as the Yaddasht relating to the sale had not been
attested as required by law, the seizure in question must be held to be
invalid. As against that decision, the Municipal Board of Saharanpur went up in
appeal to the High Court under s. 417(3), Cr. P.C. the High Court allowed the
appeal disagreeing with the trial court on both the questions of law referred
to earlier. It came to the conclusion that the analyst had given the necessary
data hence his report afforded sufficient basis for conviction. It further
opined that the fact that the Yaddasht had not been attested by the witnesses
of the locality, did not vitiate the seizure made. At the hearing of the
appeal, no objection about the maintainability of the appeal was taken. The
judgment of the High Court was rendered on April 18, 1966. The High Court
convicted the appellant and sentenced him to undergo rigorous imprisonment for
two months. and to pay a fine of Rs. 100/-, in default to undergo further
imprisonment for a period of one, month. On April 28, 1966, the accused field
an application for certificate under Art. 134 of the Constitution. On May 4,
1966, when the application filed under Art. 134 of the Constitution for certificate
was still pending, the accused moved the High Court under s. 561 (A), Cr. P.C.
for reviewing its judgment dated April 18, 1966 principally on the ground that
the appeal filed by the Municipal Board was not maintainable under s. 417(3),
Cr.
P.C. as the complaint had been instituted by
the' Food Inspector and no.t by the Municipal Board. The application under s.
561(A) was dismissed by the High Court as per its order of March 16, 1967
repelling the contention of the accused that the complaint had not been
instituted by the Municipal Board. It further came to the conclusion that it
had no power to review its own judgment. The certificate prayed for under Art.
134 of the Constitution was also refused by a separate order of the same date.
Thereafter this appeal was brought after obtaining special leave.
Mr. Garg, learned Counsel for the appellant
strenuously contended that the appeal filed by the Municipal Board of
Saharanpur before the High Court under s. 417(3), Cr. P.C.
was not maintainable as the complaint from
which that appeal had arisen had been instituted by the Food Inspector.
Section 417(3) of the Criminal Procedure Code
provides that if an order of acquittal 740 is passed in any case instituted
upon complaint, the High Court may grant to the complainant special leave to
appeal against the order of acquittal. It is clear from that section that
special leave under that provision can only be granted to the complainant and
to no one else. It may be noted that in this case no appeal against acquittal
had been filed by the State. Hence the essential question for consideration is
whether the complainant before the Magistrate was the Municipal Board of
Saharanpur ? The complainant shown in the complaint is the Municipal Board of
Saharanpur but the complaint was signed by the Food Inspector. Section 20 of
the Prevention of Food Adulteration Act, 1954 prescribes that no prosecution
for an offence under that Act should 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.
There is no dispute that the Municipal Board
is a local authority. Hence it was competent to file a complaint. It was also
competent for that board to authorise someone else to file complaints under the
Prevention of Food Adulteration Act on its behalf. As seen earlier, the
complaint purports to have been filed by the Municipal Board. That Board could
have authorised its Food Inspector to file the complaint on its behalf. Neither
in the trial court, nor in the High Court at the stage of hearing of the
appeal, was any objection taken by the accused as to the maintainability either
of the complaint or of the appeal. Both those courts and the parties before it
proceeded on the basis that the Municipal Board, Saharanpur was the complainant
and its Food Inspector had filed the complaint on its behalf. It is only after
the disposal of the appeal, the accused for the first time took up the
contention that the Municipal Board was not the real complainant.
It is true that the complaint was signed by
the Food Inspector. As seen earlier it was competent for the Municipal Board to
authorise him to file the Complaint.
The question whether he was authorised by the
Municipal Board to file the complaint was never put into issue. Both the
parties to the complaint proceeded on the basis that it was a validly instituted
complaint. If the Municipal Board had not authorised him to file the complaint
then the complaint itself was not maintainable. If that is so, no question of
the invalidity of the appeal arises for consideration. It was never the case of
the accused that the complaint was invalid. In K.C. Aggarwal v. Delhi
Administration(1), this Court has held that a complaint filed by one of the
officers of a local authority', at the instance of that authority is in law a
complaint institute Criminal Appeal No. 100 of 1966 decided on 27th May, 1969;
741 ed by that local authority. Therefore if
the Complaint with which we are concerned in this case had been filed by the
Food Inspector on the authority of local board, the complaint must be held to
have been instituted by the local board itself. The question whether the Food
Inspector had authority to file the complaint on behalf of the local board is a
question of fact. Official acts must be deemed to have been done according to
law. If the accused had challenged the authority of the Food Inspector to file
the complaint, the trial court would have gone into that question. The accused
cannot be permitted to take up that contention for the first time after the
disposal of the appeal. This Court refused to entertain for the first time an
objection as regards the validity of a sanction granted in Mangaldas Raghavji
and Anr. v. State of Maharashtra and Anr. (1) Mr. Garg, learned Counsel for the
accused urged that a permission under s. 20 of the Prevention of Food Adulteration
Act, 1954 to file a complaint is a condition precedent for validly instituting
a complaint under the provisions of that Act. The fulfillment of that condition
must be satisfactorily proved by the complainant before a court can entertain
the complaint. Without such a proof, the court will have no jurisdiction to try
the case. In support of that contention of his he sought to take assistance
from the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka v.
The King(2) and Madan Mohan Singh v. The State of U.P.(3). Both those decisions
deal with the question of the validity of sanctions given for the institution
of certain criminal proceedings. The provisions under which sanction was sought
in those cases required the sanctioning authority to apply its mind and find
out whether there was any justification for instituting the prosecutions. The
Judicial Committee as well as this Court has laid down that in such cases, the
court must be satisfied either from the order of sanction or from the other
evidence that all the relevant facts had been placed before the sanctioning
authority and that authority had granted the sanction after applying its mind
to those facts.
The ratio of those decisions has no bearing
on the facts of this case. Under s. 20 of the Prevention of Food Adulteration
Act, 1954, no question of applying one's mind to the facts of the case before
the institution of the complaint arises as the authority to be conferred under
that provision can be conferred long before a particular offence has taken
place. It is a conferment of an authority to institute a particular case or
even a class of cases. That -section merely prescribes that persons or
authorities designated in that section are alone competent to file complaints
under the statute in question.
(1) [1965] 2 S.C.R. 894. (2) 75 I.A.p. 30.
(3) A.I.R. 1954 S.C. 736.
742 For the reasons mentioned above, we are
unable to accept the contention of the accused that the Municipal Board of
Saharanpur was not competent to file the appeal.
The only other question canvassed before us
is that the report of the analyst could not have afforded a valid basis for
rounding the conviction as the data on the basis of which the analyst had
reached his conclusion is not found in that report or otherwise made available
to the court. We are unable to accept this contention 'as well. It is not
correct to. say that the report does not contain the data on the basis of which
the analyst came to his conclusion. The relevant data is given in the report. A
report somewhat similar to the one before us was held by this Court to contain
sufficient data in Mangaldas's(1) case referred to earlier. The correct view of
the law on the subject is as stated in the decision of the Allahabad High Court
in Nagar Mahapalika of Kanpur v. Sri Ram(2) wherein it is observed:
"that the report of the public analyst
under s. 13 of the Prevention of Food Adulteration Act, 1954 need not contain
the mode or particulars of analysis nor the test applied but should contain the
result of analysis namely, data from which it can be inferred whether the
article of food was or was not adulterated as defined in s. 2 (1 ) of the
Act." In the result the appeal fails and the same is dismissed. The
appellant is on bail. He should surrender to his bail and serve the sentence
imposed on him.
Y.P. Appeal dismissed.
(1) [1965] 2 S.C.R. 894. (2) [1963] All. L.J.
765.
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