J.M.L.Sinha, J. - (1.) THIS revision arises out of the Judgment dated 10th March, 19 8, passed by the IV Additional Sessions Judge, Agra, dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
(2.) ON 10th October, 1975, at about 9.30 a.m. the Food Inspector, Bah, found the applicant carrying about 35 liters of buffalo milk in a can. The Food Inspector collected milk out of that can. ONe part of the sample was sent to the Public Analyst, who reported it to be adulterated. A complaint was therefore, filed for the prosecution of applicant. During his examination in the trial court the applicant accepted that on the date and time alleged the Food Inspector collected sample out of the milk in his possession. He, however, pleaded that he did not receive any price for the same and further that the milk was not intended for sale but was being taken by him to his uncle Subedar in connection with Thirteenth Day ceremony of some deceased relation at his place. The trial court found the applicant guilty and convicted him. Since that part of the judgment of the trial court is a little involved, it would be expedient to quote the same. It is as follows : "Accused Puttu Lal is convicted of charge against him under Section 7 (1) and (iii) of the Prevention of Food Adulteration Act read with Rule. 50 of the Prevention of Food Adulteration Rules, 1955 and Rule 80 of the Pure Food Rules, 1952 read with Sec. 25 (2) of the Pure Food Act punishable under Section 16 (1) of the Pure Food Act and Section 6 of U. P. Act, 1975. The accused is to go under simple imprisonment for six months under Section 16 of the Prevention of Food Adulteration Act. He is awarded another six months' simple imprisonment under Section 6 of U. P. Act of 1975." Aggrieved against the conviction and sentence recorded by the trial court the applicant filed an appeal in the court of sessions. The learned Addl. Sessions Judge, however, maintained the conviction and sentence as recorded by the trial court and dismissed the appeal. Aggrieved against it, the applicant has preferred this revision. Learned counsel for the applicant, it appears, took pains in preparing this case and addreseed very elaborate arguments covering almost every possible point in the case. It was first contended that the sanction in the instant case was invalid as it did not appear from it that the sanctioning authority applied its mind to the facts of the case before recording the sanction. A number of cases were cited by the learned counsel for the applicant in order to contend that an authority according sanction for prosecution of any offence should do so only after applying its mind to the relevant facts. It is needless to refer to all those decisions because so far as the legal proposition enunciated by the learned counsel is concerned, there can be no two opinions about it. The question, however, is whether it is open to the applicant to raise such a contention for the first time in revision and, if so, whether it can be held in the instant case that the sanction was accorded by the authority concerned without applying his mind to the facts of this case.
(3.) THE question as to whether the sanctioning authority accorded sanction in the present case after applying his mind to the facts of the case or he did so mechanically is a mixed question of law and fact. It is, therefore, necessary for a party, if he chooses to assail the validity of the sanction on the ground that it was accorded without application of mind, to do so during the trial of the case so that the prosecution may have an opportunity to adduce evidence to prove that the sanctioning authority did apply his mind to the facts of the case before according the sanction. It is not open to a party to keep quiet in the trial court, to keep quiet in the appellate court and then to take the prosecution by surprise by raising such a contention for the first time before a court of revision. Indeed, if there is no sanction at all in any case it may be open to a party to raise that question even in a court of revision, but where the sanction for the prosecution exists in a case and the only objection raised on behalf of the accused is that it was accorded without application of mind to the facts of the case, equity and fair play demand that such an objection should be raised in the trial court itself, so that the other party may have an opportunity to lead necessary evidence. Reference in this connection can be made to the case of Tulsi v. State of U.P., AIR 1963 S.C. 606. One of the offences charged against the accused in that case was under Section 120-B of the Indian Penal Code. According to Section 196-A of the Code of Criminal Procedure, cognizance of the offence under Section 120-B, where the object of conspiracy is to commit any non- cognizable offence or cognizable offence not punishable with death or imprisonment for life or rigorous imprisonment for a term of two years or upwards, cannot be taken, unless the State Government by an order in writing has consented to the initiation of the proceedings. THE original order passed by the Government sanctioning the prosecution was not placed on record. THE prosecution only filed a letter from the Under Secretary to the Government of U.P. addressed to the District Migistrate, Kanpur informing him that the Governor had been pleased to grant sanction to the initiation of the proceedings against the persons concerned. It was contended before the Supreme Court that the written order of sanction by the sanctioning authority had not been placed on record and that, in any case, the document on record did not show on its face that the facts of the case were considered by the Governor. THE Supreme Court refused to entertain that contention and observed : "We did not permit Mr. Mulla to raise this point because it is not a pure question of law but requires for its decision investingation of facts. It is not his contention that there was no sanction at all but the gravamen of his complaint is that there is no proper proof of the fact that sanction was given by the authority concerned after considering all the relevant facts and by following the procedure as laid down in Article 166 of the Constitution. Had the point been raised by the appellant in the trial court, the prosecution would have been able to lead evidence to establish that the Governor had in fact before him all the relevant material, that he considered the material, and after considering it he accorded the sanction and that that sanction was expressed in the manner in which an act of the Governor is required to be expressed. Mr. Mulla, however, says that section 196-A of the Code of Criminal Procedure is a sort of brake on the powers of the Criminal Court to enquire into the charge of conspiracy, that the court does not get jurisdiction to enquire "into that charge unless the brake is removed and that it is, therefore, essential for the prosecution to establish that the brake was removed by reason of the fact that the appropriate authority had accorded its sanction to the prosecution after complying with the provisions of law and that it was not obligatory on the defence to raise an objection that there was no proper sanction. THEre would have been good deal of force in the argument of learned counsel had Ex. P. 1560 not been placed on record. Though that document is not the original order made by the Governor or even its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196-A of the Code of Criminal Procedure. THE document is an official communication emanating from the Home Department and addressed to the District Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that the official act to which reference has been made in the document was regularly performed. In our opinion, therefore, the document placed on record prima facie meets the requirements of Section 196-A, CrPC and therefore, it is not now open to the appellants to contend that there was no evidence of the grant of valid sanction." Confronted with this decisions learned counsel for the applicant urged that the provision contained in Section 196-A (2) is different from the provision contained in Section 20 of the Prevention of Food Adulteration Act. This argument, however, is devoid of substance. The rule incorporated in Section 196-A (2) is that no court shall take cognizance of an offence specified therein without consent in writing by the State Government, the Chief Presidency Magistrate or the District Magistrate empowered in that behalf by the State Government. The rule contained in Section 20 of the Prevention of Food Adulteration Act is that no prosecution for an offence under that Act can be initiated except by or with the consent in writing of the Central Government, the State Government or local authority or a person authorised in that behalf by the aforesaid authority. It will thus appear that Section 196-A (2) of the Code of Criminal Procedure and Section 20 of the Prevention of Food Adulteration Act are in effect analogous to each other. The mere fact that one creates a bar against taking cognizance of the case and the other bans the institution thereof is immaterial. The purpose of both the provisions is to prevent prosecution without consent of the relevant authority. What has, therefore, been said by the Supreme Court with regard to the consent under Section 196-A (2) of the Code of Criminal Procedure, should apply equally to the consent referred to in Section 20 of the Prevention of Food Adulteration Act,;