S.C.Mathur - (1.) THIS appeal is directed against the order of acquittal passed by Sri R. N. Awasthi, Judicial Magistrate, Lucknow, on 10-11-1975 in prosecution under Section 7/16 of the Prevention of Food Adulteration Act.
(2.) RESPONDENTS 2 and 3 Anand Be- hari and Suman Behari carry on sweetmeat business at Ban Wali Gali, P. S. Chowk, Lucknow. Respondent no. 1 Sri Kishan is their servant, who sits at the shop on their behalf. On 2-10-1974 at about 3.30 P.M. Sri G. P. Asthana, Food Inspector, Mobile Food Squad, Lucknow, the appellant in the appeal, visited the said shop and after disclosing his identity purchased 1500 grammes of Malai Pan for sample and analysis. The sample so taken was sent to Public Analyst to U.P. Government for report. The letter which was sent to Public Analyst by the appellant is Ext. Ka-4 on the record. A perusal of the letter indicates that the Public Analyst was required to test the sample for arrowroot. The report of the Public Analyst dated 8th October, 1974 is Ext. Ka-3 on record. In this report the test for starch was shown as positive. On the basis of this report the respondents were prosecuted for offence finder Section 7/16 of the Prevention of Food Adulteration Act. Consent for this prosecution, as contemplated under Section 20 of the Act, was said to have been given by the Additional Nagar Swastha Adhikari on 20th October, 1974. The consent order is Ext. Ka-6. The complaint which was thereafter made by the appellant to the Judicial Magistrate, Lucknow is Ext, Ka-7. On behalf of the prosecution the Food Inspector, Sri G. P. Asthana, the appellant in this appeal, was examined. No other witness was examined on behalf of the prosecution. The respondents also did not examine any witness. Apart from the oral testimony of Sri G. P. Asthana, the prosecution relied upon the report of the Public Analyst in support of its case. The learned Magistrate acquitted the respondents on two grounds. Firstly, the learned Magistrate found that the sanctioning authority had not applied its mind while giving the consent for the prosecution under Section 20 of the Act and secondly, he found that mixing of starch in preparing milk products was not prohibited and, therefore, the respondents could not be said to have violated any provision of the Act or the rules. The learned Magistrate in recording the first finding relied upon a decision of this Court in the case of Chunni Lal v. State, 1973 ACrR 254.
(3.) THE above judgment of the learned Magistrate has been challenged by the appellant's learned counsel Sri Mahesh Chandra. Sri Mahesh Chandra's argument was that the authority of the Court in Chunni Lal's case (supra) has no application to the facts of the present case and the learned Magistrate was in error in placing reliance upon it. Jn chunni Lal's case (supra) the complaint made to the Magistrate and the consent given by the sanctioning authority were contained in one sheet of paper. On one side of this paper was the complaint made by the Food Inspector to the Magistrate and on the reverse side was the consent of the sanctioning authority. THE consent order was a cyclostyled form in which blank spaces had been filled up by the Food Inspector. In these circumstances it was held by this Court that the filling up of blank spaces not by the sanctioning authority but by the Food Inspector indicated that the sanctioning authority itself did not apply its mind to the facts of the case and, therefore, there was no consent as contemplated under Section 20 of the Act which was a condition precedent to the launching of prosecution. In the present case the complaint and the consent order are not on one and the same sheet of paper. THE consent order, Ex. Ka-6, is a cyclostyled proforma which had blank spaces. THEse blank spaces have been filled up in an ink different from the ink with which the sanctioning authority has appended his signatures It is common case that the blank spaces had not been filled up by the sanctioning authority himself. THE sanctioning authority itself did not enter the witness box to prove that it applied its own mind to the facts with reference to which the prosecution was sought to be sustained. THE question whether the consent contained in Ex. Ka-6, is valid for the purpose of Section 20 of the Act, has to be decided with reference to the contents of Ext. Ka-6 alone. Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) provides as follows :- 20 (1)-"No prosecution for an offence under this 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 order, by the Central Government or the State Government;