The State (Delhi Administration) vs Vasdev and Another

G.S. Sistani, J.—The present appeal filed u/s 378(1) of the Code of Criminal Procedure, 1973 is directed against the judgment dated 12.10.1987 passed by the Additional Sessions Judge (hereinafter, "ASJ"), New Delhi, whereby the learned Judge has acquitted both the respondents herein of offences punishable u/s 7(ii) read with Section 16 of the Prevention Food Adulteration Act, 1954 (hereinafter "P.F.A.").

A few undisputed facts leading to the present appeal are outlined as under:

2.1 On 21.6.1983, at 7:15 p.m., F.I. S.K. Nagpal visited the premises of M/s. Ritu Biscuits Products at C-35/11, Lawrence Road, Industrial Area, New Delhi-110035 and purchased therefrom six packets of biscuits weighing 350 grams for the purposes of analysis under the P.F.A. and the P.F.A. Rules, 1955 (hereinafter, "P.F.A. Rules") made thereunder.

2.2 As per the report of the Public Analyst, the aforesaid samples of biscuits were found conforming to the standards laid down under the P.F.A. Rules. The Public Analyst, however, reported violation of Clauses (e) and (f) of Rule 32 of the P.F.A. on the ground that the packaging of the biscuits had no label informing the code number, batch number and the month and year in which the biscuits were manufactured.

2.3 Pursuant thereto, the Secretary (Medical), Delhi Administration, vide order dated 17.9.1983, granted sanction to the Delhi Administration to prosecute the respondents for the violations as alleged by the Public Analyst.

2.4 Upon receipt of the order dated 17.9.1983, the Delhi Administration instituted a complaint bearing Crl. No. 209/1983 wherein it was alleged that the accused, namely, Sh. Ram Lal, Smt. Lachhan Devi, Sh. Suresh Kumar, Sh. Vasdev and M/s. Ritu Biscuits Products had violated Clauses (e) and (f) of Rule 32 of the P.F.A. Rules and thus were liable to be punished under the P.F.A.

2.5 On the basis of the complaint bearing Crl. No. 209/1983, the Metropolitan Magistrate (hereinafter, "MM"), New Delhi, vide order dated 27.9.1983, summoned the aforesaid accused to stand trial for offences punishable u/s 7(ii) read with Section 16 of the P.F.A.

2.6 The summoning order dated 27.9.1983, however, was eventually quashed with respect to accused, namely, Sh. Ram Lal, Smt. Lachhan Devi and Sh. Suresh Kumar on the ground that there was no evidence that the said three accused, who were reportedly partners in M/s. Rita Biscuits Products, were incharge of and responsible for the conduct of its business.

2.7 The prosecution was accordingly proceeded against accused, namely, Sh. Vasdev and M/s. Rita Biscuits Products Ltd., respondent Nos. 1 and 2 respectively (hereinafter, "the respondents").

2.8 Upon consideration of the material on record and the arguments advanced by the parties, the MM vide judgment dated 26.7.1986 convicted the respondents u/s 7(ii) read with Section 16 of the P.F.A., and subsequently, vide the order of sentence dated 30.7.1986 sentenced the respondent No. 1 to R.I. for three months and to pay a fine of Rs. 1,000/-, and in default of payment of the fine, to undergo S.I. for one month. Vide the same order of sentence, the respondent No. 2 was sentenced to pay a fine of Rs. 2000/-.

2.9 Against the judgment dated 26.7.1986 and the order of sentence dated 30.7.1986, the respondents preferred an appeal bearing Crl.A. No. 113/1986 before the ASJ, New Delhi, who, vide judgment dated 12.10.1987, allowed the appeal and acquitted the respondents. The judgment dated 26.7.1986 as well as the order of sentence dated 30.7.1986 were accordingly set aside.

2.10 Hence, the present appeal by the State.

Broadly speaking, there were two grounds on which the learned ASJ premised his decision to acquit the respondents, namely:

3.1 Firstly, the samples of biscuits purchased from the premises of the respondents were not ready for sale and human consumption, and thus, the respondents were not under an obligation to confirm to the standards laid down in the P.F.A. Rules.

3.2 Secondly, the sanction to prosecute the respondents is bad in law inasmuch as it had been granted by the Sanctioning Authority without application of mind.

Mr. Sanjay Lao, learned Counsel for the State, has vehemently assailed the judgment dated 12.10.1987 on the following grounds:

4.1 Firstly, the judgment dated 12.10.1987 is bad in law inasmuch as the learned ASJ has failed to correctly appreciate the violation of law by the respondents. The plea taken by the respondents that the samples of biscuits purchased from their premises were not ready for sale and human consumption clearly appears to be an afterthought, and thus, could not have been relied upon by the learned ASJ.

4.2 Secondly, the sanction to prosecute is valid in law inasmuch as it was obtained only after placing the relevant material before the Sanctioning Authority and that the sanction was granted after complete application of mind.

Per contra, Mr. Ashok Soni, learned Counsel for the respondents has vehemently defended the impugned judgment dated 12.10.1987 by putting forth the following submissions:

5.1 Firstly, the learned ASJ in the judgment dated 12.10.1987 has come to a conclusive finding that the sanction to prosecute was granted without application of mind, and thus, was bad in law. This stand taken by the learned ASJ is buttressed by the decisions of this Court in State (Delhi Admn.) v. Ramesh Chand Jain reported at 2005 (1) JCC 470, Mohd. Ashan and Another Vs. Delhi Administration, and Manohar Lal Vs. State, In all these cases appertaining to the veracity of the sanction order, this Court found the sanction order to be bad in law for want of material particulars, viz. the opinion of the Pubic Analyst, the charges leveled against the accused, etc.

5.2 Secondly, no prosecution could be launched against the respondents for the alleged violation of Rule 32(e) of the P.F.A. Rules inasmuch as the said rule has been declared ultra vires by the Apex Court in the case of Dwarka Nath and Another Vs. The Municipal Corporation of Delhi, Similar was the position in Bharat Arora and Ors. v. The State reported at 2000 (2) JCC 416 (Delhi), wherein this Court followed the dictum in Dwarka Nath (supra) and thereby quashed the prosecution against the accused.

5.3 Thirdly, even otherwise, as per the policy of the P.F.A. Department, the cases for violation of Clauses (e) and (f) of the P.F.A. Rules are not to be prosecuted in the first instance. In other words, the policy directs that first-time violators are to be let off with a warning, and it is only in the case of second default, that prosecution is to be launched. Apparently, the existence of this policy has been acknowledged by the learned MM in his order of sentence dated 30.7.1986.

5.4 Fourthly, the samples of biscuits which were purchased by the F.I. from the respondents were primarily for the purpose of checking adulteration, the possibility whereof, in any case, was ruled out by the Public Analyst.

5.5 Lastly, and most importantly, the samples of biscuits which were taken for analysis were not ready for sale and human consumption.

This Court finds considerable merit in the submissions of learned Counsel for the respondents.

The principle averment made by learned Counsel for the respondents in defence of his case is that inasmuch as the samples of biscuits were not ready for sale and human consumption at the time they were purchased for analysis, it was not onerous upon the respondents to conform to the directions under Clauses (e) and (f) of Rule 32 of the P.F.A. Rules. To make good his point, learned Counsel has drawn the attention of this Court to the testimony of one Sh. Manohar Lal (DW-1), a clerk with M/s. Reeta Biscuits Products, whose duty was to give code numbers on the packets of the biscuits and who has deposed that the biscuits which used to be manufactured in the evening were to be given code numbers the next day. Attention of this Court is particularly drawn towards the cross-examination of Sh. Manohar Lal, wherein he has categorically denied the suggestion that code numbers were never pasted at the premises of M/s. Rita Biscuits Products. In the same vein, learned Counsel for the respondents has further drawn the attention of this Court to the cross-examination of F.I. Sh. Pratap Raj (PW-5) who has stated that biscuits were being manufactured at the time he visited the premises of M/s. Rita Biscuits Products and that the packaging was being done manually.

The evidence of Sh. Manohar Lal (DW-1) and F.I. Sh. Pratap Raj (PW-5) leaves no room for doubt that the biscuits were still in the process of being manufactured at the time when the Food Inspectors visited the premises of the respondents. The learned ASJ, in his judgment dated 12.10.1987, has relied upon the evidence of DW-1 and PW- 5, and thus, has correctly arrived at the conclusion that the samples of biscuits taken from the premises of M/s. Rita Biscuits Products were not ready for sale and for human consumption. The learned ASJ, in fact, has also taken cue from the fact that the Food Inspectors who had visited the premises of M/s. Rita Biscuits Products did not bring any circumstances on record to show as to how the biscuit packets, lying at the manufacturing premises of the respondents, were ready for sale or for human consumption, and has accordingly come to a conclusive finding that in the absence of narration of such circumstances, it was not possible to hold that the biscuit packets, the sample out of which had been taken for analysis, were ready for sale or for human consumption. The learned ASJ has also relied upon the decision of this Court in Municipal Corporation of Delhi v. Nand Kishore reported 1982 F.A.C. 561 as well as Madan Lal v. State (Dehi Administration) reported at 1986 (2) F.A.C. 93, wherein this Court has unequivocally opined that non-compliance with the prescribed standards in respect of a commodity which is still in the process of manufacturing and not ready for sale does not come within the mischief of Section 7 of the P.F.A. I have no reasons to disagree with the stand taken by the learned ASJ, or for that matter, differ from the case-law relied upon by him. In view thereof, the contention of learned Counsel for the appellant that the learned ASJ in his judgment dated 12.10.1987 has failed to correctly appreciate the violation of law by the respondent holds no merit and is hereby rejected.

This brings us to the second aspect of the present appeal, that is, whether or not the sanction to prosecute the respondents was granted with application of mind. Let us first have a look at the order dated 17.9.1983 whereby sanction was granted by the Secretary (Medical), Delhi Administration to prosecute the respondents. The said order, exhibited as PW-3/A at page 109 of the Paper Book, is reported thus:

DELHI ADMINISTRATION DELHI

Whereas by Notification No. F.32/6/76-M&PH dated 29th December, 1976, I Secretary (Medical) Delhi Administration Delhi have been appointed u/s 20 of the Prevention of Food Adulteration Act, 1954 as amended by Act. No. 34 of 1976, an authority to authorize the launching of the prosecution under the said Act.

And whereas a sample of Biscuits bearing No. SKN/414/83 was lifted on 21-6-83 by Shri S.K. Nagpal Food Inspector of the Deptt of Prevention of Food Adulteration, Delhi Administration, Delhi from the under noted accused No. 1.

And whereas upon examination of documents and other relevant records placed before me, I am satisfied that a prima facie is made out against the under mentioned accused under the aforesaid Act which needs to be tried by a Court of Law.

Now, therefore, I, Secretary (Medical), Delhi Admn., Delhi hereby give my consent to the Senior Prosecutor/ Additional Public Prosecutor, Delhi Admn., Delhi to institute and conduct on behalf of the Delhi Administration, the prosecution and other legal proceedings in connection therewith against the under mentioned accused in the court of law.

Place: Delhi SECRETARY (MEDICAL) Dated: DELHI ADMINISTRATION: DELHI.

It is trite that the burden of proving that the requisite sanction to prosecute has been validly obtained rests upon the appellant. The sanction order, in my view, is the fountainhead of the prosecution launched against the accused. Considering that the sanction to prosecute is an important factor and is a sine qua non to the launching of the prosecution, it is incumbent upon the Sanctioning Authority to ensure that the sanction order is valid and complete in all respects. A sanction order, devoid of material particulars for arraigning the accused, not only strikes at the root of the prosecution case but also lies in the teeth of Section 20(1) of the P.F.A which explicitly enjoins the State from prosecuting an accused without proper sanction from the Sanctioning Authority.

Coming back to the present case, the prosecution herein has miserably failed to prove that the Secretary (Medical), Delhi Administration applied his mind to the facts of the case at the time of granting his sanction to prosecute. Bare perusal of the sanction order dated 17.9.1983, as reproduced in the foregoing paragraph, shows that except for filling in the blanks regarding the description of the samples taken and the date on which the samples were taken as also the name of the F.I., the remaining information is given in the form of a cyclostyled performa. There is no evidence in the said sanction order to suggest that at the time of granting the sanction, the Sanctioning Authority was aware of the facts Constituting the offence or applied its mind to all the relevant documents brought on record. I draw support for this observation from the fact that there is not even a whisper in the sanction order dated 17.9.1983 about the contents of the report of the Public Analyst, nor does the sanction order indicate the specific provisions of the law under which the respondents were sought to be prosecuted. In view thereof, I have no hesitation in stating that the sanction order dated 17.9.1983 has been filled by the Sanctioning Authority rather mechanically and is certainly not a valid document which could be acted upon to hold conviction of the respondents. Needless to mention that the said sanction order, even otherwise, is also not in sufficient compliance with Section 29(1) of the P.F.A, and thus, is bad in law.

For the reasons aforesaid, the findings of the learned ASJ in both aspects, that is, the samples of biscuits purchased for analysis were not ready for sale and human consumption, and that the sanction to prosecute the respondents was without application of mind cannot be faulted with. This being the case, I find no reason to interfere with the well-reasoned judgment dated 12.10.1987 of the ASJ. The present appeal consequently stands dismissed.