Decided on August 13,1996

Kailash Pati Oil Mills Appellant
D L Chatterjee, Food Inspector, Calcutta Municipal Corporation Respondents

Referred Judgements :-



A.B.MUKHERJEE, J. - (1.)AN application under section 482, Cr.P.C. is the basis for the revisional application, the purpose of which is to quash the order dated 19.4.1995 passed by Senior Municipal Magistrate rejecting the prayer of the accused petitioners for their discharge in Case No. 53D of 1990 as also to quash the entire proceeding.
(2.)THE case in short is that on 24.10.1990 the opposite party No.1 being a Food Inspector attached to Calcutta Municipal Corporation filed a complaint with the allegation that on 3.8.1990 he inspected the shop of the petitioners at 110/1, Kshudiram Bose Sarani, Calcutta and collected some quantity of Mustard Oil from petitioner No. 2 and sent one part of the same to Public Analyst for analysis. As per the report of the Analyst the Mustard Oil did not conform to the prescribed standard in respect of saponification value and as. such was adulterated. The complainant accordingly submitted the records including the copy of report of the Public Analyst to the Chief Municipal Health Officer of Calcutta Municipal Corporation who accorded his sanction for prosecution of the petitioners. The petitioners on receipt of the copy of report of Public Analyst exercised their rights under section 13(2) of Prevention Food Adulteration Act, hereinafter referred as the Act for getting one part of the sample examined by Director, Central Food Laboratory. On analysis, the Director found the saponification value of the sample Mustard Oil within the prescribed standard but came to the conclusion that the sample did not conform to the standard of Mustard Oil as per P.F.A. Rules and also sent a certificate of analysis. It is alleged that sanction for prosecution under section 20(1) of the Act was given by the Chief Municipal Health Officer on the basis of the report of Public Analyst, which was however found to be not correct as per the report of the Director, Central Food, Laboratory. Accordingly, it is contended that the sanction as such is not valid sanction and on its bases no cognizance can be taken, there being no further sanction on the basis of the report of the Central Food Laboratory. Accordingly, the, petitioners filed an application for their discharge which was, however, rejected by the learned Senior Municipal Magistrate by order dated 19.4.95 Accordingly the revisional application has been filed to set aside the said order and to quash the proceeding being without any valid sanction.
(3.)IT is argued for the petitioners that as per the report of the Public Analyst, the Saponification value of seized Mustard Oil was 178.3 while the prescribed standard is between 168 and 177 as per the report of the Director, Central Food Laboratory, the saponification value of the other sample sent to him at the instance of the Defence under section 13(2) of the Act is 169.3. It is argued that since the report of the Director, Central Food Laboratory shall prevail over report of the Public Analyst in terms of section 13(3) of the Act, the seized Mustard Oil cannot be said to be adulterated due to the Saponification value being in excess of the permissible limit. It is argued that as per'the petition of complaint, sanction to the prosecution was given by the concerned authority on a perusal of the report to the Public Analyst. The authority derived its satisfaction on consideration of the Public Analyst's report. Since the said report cannot be allowed to stand in view of the report of the Central Food Laboratory, the sanction given on the basis of the report of the Public Analyst cannot be said to be a valid sanction in terms of section 20 of the Act. It is his contention that the report of the Central Food Laboratory also no doubt describes the sample as adulterated but it is due to the fact that the sample exceeded the standard so far as Bellier Test is concerned. It is contended that while the standard as per as Bellier Test is 27.5'c, it was found to be 28.7'c by the Central Food Laboratory. It is contended that since there was no further sanction after receipt of the report of Central Food Laboratory the prosecution cannot continue. In support of his contention, reliance has been placed in a decision reported in Food Adulteration Act Cases (1975)2, 331 where the duty of the sanctioning authority has been stated. The sanctioning authority is to apply its mind to see if a prima facie offence has been committed and if so to accord sanction. In the present case, it is argued that the sanctioning authority based his opinion on the report of the Public Analyst which was subsequently found to be not correct by the Central Food Laboratory and as such the sanction based on the earlier report cannot stand. Reliance has also been placed on decision reported in All India Prevention of Food Adulteration Journal, 1978, 472 and also Prevention of Food Adulteration cases, (1979)1 at 246. Reliance has also been placed on decision reported in Rattan Lal and Etc. v. State of H.P., 1991 Cr. LJ 3302 when in occasions like the present case need of fresh sanction has been held mandatory.
The learned Advocate for the O.Ps. tried to meet the argument by stating that the sample was sent to the Central Food Laboratory at the instance of the defence that is present petitioner under section 13(2) of the Act. Obviously, this is a fact which as apparent on the face of the record but for this reason the report submitted by the Food Laboratory does not loose significance. It is also his contention that since that samples were found to be adulterated both by the Public Analyst and also by the Central Food Laboratory, there is nothing improper in the taking of cognizance by the Magistrate which was done on the basis of a Valid sanction order. It is argued that in such circumstances there cannot be any revision or exercise of inherent power. In support of his contention, he has relied on a decision reported in The Senior Food Inspector, Anatithapur v. Ravuru Sughaiah, 1992 Criminal Law case is completely different from the present one. In that case the authority while giving consent in accordance with section 20(1) Prevention of Food Adulteration Act used the word "sanction" instead of the word "consent". It was held that when the report of the Public Analyst and the report of the Food Inspector where before the competent authority and the latter gave sanction for prosecution, it amounts to sufficient compliance of the aforesaid section in accordance with the presumption under section 114C of the Evidence Act. The decision can have no application in our case since the report of Food Laboratory was not before the competent authority before sanction was granted.


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