- (1.) THE petitioner was tried for an offence u/s 16 (1) (b) of the Prevention of Food Adulteration Act, 1954 by the learned Chief Judicial Magistrate, Udaipur and was convicted of the said charge. THE learned Chief Judicial Magistrate sentenced the petitioner to undergo S. I. for six months and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo S. I. for one month. Aggrieved, the petitioner went in appeal to the learned Sessions Judge, Udaipur. THE appeal was heard by the learned Sessions Judge, Udaipur, who dismissed the same vide his judgment dated 28. 2. 1984.
(2.) BRIEFLY stated the prosecution case is that Shri Hari Shanker, Food Inspector, Udaipur went to the shop of petitioner on 22. 12. 78 at about 8 a. m. The Petitioner was present at the shop situated at Kotiwada, Udaipur. One bucket containing 5 Kilogrammes of milk was kept in the shop. Food Inspector suspected milk to be adulterated and, therefore, requested the petitioner to make available a sample of milk on payment. The petitioner declined to give a sample and when Hari Shanker wanted to take a sample, the petitioner pushed the bucket containing the milk, with the result that the milk spilled on the ground. Thus the Food Inspector was prevented from taking a sample of milk from the petitioner. I have heard the learned counsel for the parlies and have gone through the record of the courts below and find that the aforesaid prosecution story has been proved beyond shadow of doubt by the statements of Hari Shanker, P. W. 1, and Sardar Singh P. W. 4 who was also present at the time the incident took place. The story given out by these two witnesses is corroborated by 'panchnama' Ex. P. 1 However, the learned counsel for the petitioner submits that in this case the complaint was presented by a person who was not authorised to do so. The prosecution was also not conducted by an authorised person and hence the entire trial stands vitiated and the petitioner ought to be acquitted. In this connection reliance has been placed upon two judgments of this Court reported in State vs. Jai Narayan (1) and State of Raj. vs. Nagji Ram It is submitted that u/s 20 of the Prevention of Food Adulteration Act, the concerned authority had authorised Hari Shanker, Food Inspector to prosecute the petitioner and, therefore, Hari Shanker ought to have presented the complaint and he ought to have prosecuted the same. Instead, the complaint was presented by Suresh Chandra, Addl. P. P. attached to the court of Chief Judicial Magistrate. The entire prosecution was conducted by aforesaid Suresh Chandra and since there was no authority in favour of Suresh Chandra, the entire prosecution was bad. It is pointed out that Suresh Chandra appears to have ceased to be Addl. P. P. during the course of prosecution and one Mr. Yadav took over as Addl. P. P. There is no authority in favour of Mr. Yadav also for prosecuting the petitioner. As such the petitioner ought to be acquitted. The learned P. P. opposes the revision petition and he points out that authority is available on record in favour of prosecuting inspector and P. S. I. This authority purports to have been signed by Hari Shanker on 1. 2. 79 and this must enure for the benefit of the prosecution and, therefore, it cannot be said that the prosecution was by an unauthorised person. I have considered the rival contentions and have perused the record of the learned courts below. Admittedly, u/s 20 of the Prevention of Food Adulteration Act, it was Hari Shanker who had been authorised to launch the prosecution against the petitioner. The complaint in this case is of course signed by Hari Shanker but it does not appear that it was presented in the court of learned Chief Judicial Magistrate by Hari Shanker. The complaint carries an endorsement "submitted " and it purports to have been signed by A. P. P. (Asstt. Public Prosecutor ). Order sheet dated 1. 2. 79 does not show that Hari Shanker himself presented the complaint; it rather recites that complaint was presented by Hari Shanker through Suresh Chandra. It appears that on subsequent dates the prosecution was conducted by Asstt. Public Prosecutor. On 1. 2. 79 Suresh Chandra was the Asstt. Public Prosecutor. On 27. 3. 79 Ishwar Ram was the Public Prosecutor. Later on, one Mr. Kothari took over as a Public Prosecutor. Thereafter on some date prosecution was conducted by Mr. Suresh Chandra and eventually one Mr. Yadav took over as Public Prosecutor. Thus the trial was through out conducted by Asstt. Public Prosecutor attached to the court of Chief Judicial Magistrate, Udaipur. It is in evidence that the case was not prosecuted by Hari Shanker. Now, I may examine the authority purported to have been filed by Hari Shanker. It does not authorise any Public Prosecutor or Asstt. Public Prosecutor to present the complaint or to conduct the prosecution on behalf of Food Inspector. It inter alia recites that since government has appointed police prosecutor, therefore, Prosecuting Inspector and Prosecuting Sub-Inspector may be permitted to conduct the case. I may here state that institutions of Prosecuting Inspectors or Prosecuting Sub-Inspectors came to be abolished long back and the institutions of Public Prosecutors and Asstt. Public Prosecutors came to be introduced by virtue of ss. 24 and 25 of the Criminal Procedure Code, 1973. The prosecution was launched in the year 1979. The authority filed on behalf of Hari Shanker does not authorise a Public Prosecutor to conduct the prosecution but authorises a police prosecutor, namely, the Prosecuting Inspector or the Prosecuting Sub-Inspector to conduct the prosecution. Even this authority has not been properly proved before the learned trial court and it was not exhibited. Hari Shanker has not stated anywhere in his statement that he had authorised Public Prosecutor or the Asstt. Public Prosecutor of the court of the Chief Judicial Magistrate to prosecute the petitioner on his behalf.
(3.) IN criminal cases where serious penalty consequences ensue, prosecutions have to be conducted strictly in accordance with law. A purported authority which has not been proved cannot be of no avail to the prosecution. Moreover, as I have demonstrated the purported authority in this case does not authorise the Public Prosecutor or the Asstt. Public Prosecutor to conduct the prosecution, either by designation or by name. Therefore, I am of the view that the authority filed in this case by Hari Shanker for prosecution of petitioner is not an valid authority in favour of Public Prosecutor or Asstt. Public Prosecutor, and the prosecution/conviction on the basis of such a complaint cannot be sustained. No other point was urged before me. In view of what I have stated above, this revision petition is accepted and the conviction and sentences passed upon the petitioner by the learned courts below are set aside. The petitioner is on bail. He need not surrender to his bail bonds. His bail bonds are cancelled. .;