NAVIN CHANDRA SHARMA, J. - (1.) I have heard V. S. Chaudhary for the petitioner and Mr. Rajendra Vyas Public Prosecutor in this revision.
(2.) THE only contention advanced by the learned counsel for the petitioner was that the complaint in the instant case was presented in the trial court by Shri Surendra Kumar Assistant Public Prosecutor and not by the Food Inspector. He urged that no cognizance could be taken by the Judicial Magistrate Gulabpura on the complaint presented by the Assistant Public Prosecutor. This argument has advanced before the trial court by stating that the complaint was filed by the Food Inspector through the Assistant Public Prosecutor, Public Prosecutors are appointed under section 24 of the Code of Criminal Procedure for conducting any prosecution on behalf of the Central Government or the State Government. No order was produced before me to show that the State Government had appointed Shri Surendra Kumar as an Assistant Public Prosecutor or Additional Public Prosecutor for conducting the cases under Prevention of Food Adulteration Act in which complaint is filed by the Food Inspector and not by the State Government. Section 20 (1) of the Prevention of Food Adulteration Act, 1954, provides that no prosecution for an offence under the Act (not being an offence under section 14 or section 14a) shall be instituted except by or with a written consent of the State Government or a person authorised in this behalf by general or special order by the State Government. lt appears from the judgment of the trial court that the Food Inspector had obtained the consent of the District Magistrate Bhilwara for filing the complaint. This goes to show that the Food Inspector himself had not been authorised by general or special order of the State Government to institute a prosecution under the Prevention of Food Adulteration Act. It was only the District Magistrate Bhilwara who had been authorised in this behalf by the State Government. THE District Magistrate Bhilwara could either himself institute a prosecution for an offence under the said Act or give written consent to any other person for instituting the prosecution. THE District Magistrate Bhilwara had in the instant case given consent to Shri Shyam Lal Bhati Food Inspector to institute the complaint. It was thus Shri Shyam Lal Bhati alone who could institute the prosecution and not the Assistant Public Prosecutor. Reference may be made to the decision of their Lordships of the Supreme Court in A. K. Rai vs. State of Punjab (I ). In that case the Punjab State Government had in Rule 3 of the Punjab Rules provided that the State Government may delegate its powers to institute prosecution for an offence under the Prevention of Food Adulteration Act and such other powers exercisable by it under the Act as may he specified in the order of the Food (Health) Authority of the State of Punjab. In exercise of this delegation, the Food (Health) Authority issued a notification on September 7, 1972 authorising the Food Inspector to institute a prosecution against the person committing offence under the Act. On a construction of Rule 3 of the Punjab Rules their Lordships of the Supreme Court held that if Rule 3 is liberally interpreted the words "authorised the launching of prosecutions' may lead to the consequence that the Food (Health) Authority who had been delegated the power of the State Government under sec. 20 (1) of the Act could in its turn sub-delegate its powers to the Food Inspector. That went against the specific provisions contained in section 20 (1) of the Act. It was held that the notification of the Food (Health) authority \, ultra vires in so far as he purported to delegate the powers to the prosecution for an offence under the Act under sec. 20 (1) to the Food Inspector, Farid-kot. In the present case, there is no question of sub-delegation of the power of the State Government. The delegation has been made by the State Government to the District Magistrate, Bhilwara. All that the District Magistrate, Bhilwara had done is that he has given written consent to the Food Inspector to institute a prosecution for the offence. It was permissible for the District Magistrate Bhilwara being the person authorised under sec. 20 (1) of the Act to give his written consent for the institution of the prosecution by the Food Inspector as has been laid down by their Lordships of the Supreme Court in State of Bombay Vs. Purshottam Kanhaiyalal (2) and the Corporation of Calcutta Vs. Mohd. Omar Ali (3) that written consent could always be given by the District Magistrate Bhilwara who had been authorised by the State under section 20 (1) of the Act. However, it was only the Food Inspector who can institute prosecution for the offence under the Prevention of Food Adulteration Act and not the Additional Public Prosecutor or the Assistant Public Prosecutor. As already stated, nothing has been placed before this Court that written consent was given by the District Magistrate, Bhilwara to the Assistant Public Prosecutor to institute this prosecution. Reference may be made to a single Bench decision of this Court in Sadra Vs. State of Rajasthan (4 ). In that case the Municipal Board had given written consent to the Food Inspector to launch the prosecution but the complaint was not filed by him. It was filed by the Assistant Public Prosecutor. It was held that written consent to launch prosecution and file complaint against the accused was accorded by the Municipal Board to Food Inspector and the Assistant Public Prosecutor was not authorised to file the complaint. The same is the decision in the case of Lalchnnd v. State of Rajasthan (5 ). I am, therefore, of the view that the prosecution in the instant case was not instituted by an authorised person. The learned Public Prosecutor contended that this ground has not been taken by the petitioner in his revision. It is clear that argument in this respect was advanced on behalf of the petitioner before the trial court and as the argument gone to the root of the case, it was allowed to be taken before this Court. I, therefore, allow this revision, set aside the order of the Additional Sessions Judge, Bhilwara dated October 23, 1980 dismissing the appeal filed by the petitioner before him against the judgment of the Judicial Magistrate Gulabpura dated 12th February 1978 and acquit the petitioner of the offence under section 7 read with sec. 15 of the Prevention of Food Adulteration Act, 1954. The bail bonds of the petitioner are cancelled and he need not surrender. . ;