K.S. Venkataraman, J.
1. This appeal has been filed by the State against the judgment of the learned Sub-Divisional Magistrate, Ariyalur, in C.C. No. 151 of 1964, acquitting the six accused in the case. The complaint was filed by P.W. 1 the Food Inspector of Ariyalur Panchayat, for an offence under Section 7 and Section (1) read with Section 2(ix)(j) and Rule 23 of the Prevention of Food Adulteration Act XXXVII of 1954.
2. P.W. 1 went to the grocery shop of accused 1, Raju Chettiar in Ariyalur about noon on 30th January, 1964, and, suspecting the composition of a packet styled as Misky Compounded Asafoetida, decided to take action under the Act. Accordingly, he called two witnesses, Veeramuthu (P.W. 2) and Krishnamurthi Chettiar. He bought one packet (M.O. 1) weighing 400 grams. for Rs. 1-50, the receipt being signed by accused 1. He observed the usual procedure, divided the contents into three parts, put them into three bottles, closed them and sealed them. One bottle was given to the first accused under acknowledgment, Exhibit P-3, P.W. 1 sent one bottle to the Public Analyst and sent the other bottle to the Court, Exhibit P-4, the report of the Public Analyst was to the effect that the as afoetida contained coaltar dye which was not permitted under the rules. Thereupon as a complaint was filed by P.W. 1 on 3.0th June, 1964.
3. The second accused is the Madurai Camphor and Hing Supplying Company which sold the packet in question in wholesale to the first accused. It is a partnership at Madurai and accused 3 to 6 are said to be its partners.
4. The learned Magistrate rejected some minor contentions put forward on behalf of the accused, but accepted the contention that the Food Inspector (P.W. 1) was not authorised under Section 20(1) of the Act to file the complaint. It is on that ground that he acquitted the accused.
5. It will be convenient to deal with that point first. At the outset it may be pointed out that we are concerned with the Act as it stood before it was amended by Act XLIX of 1964 with effect from 25th December, 1964. The reference hereafter will be to the unamended Act. Section 20(1) of the Act stood thus:
Cognizance and trial of offences,-No prosecution for an offence under this Act, shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority.
Just for the sake of information it may be noted that after the amendment with effect from 25th December, 1964, Section 20(1) reads thus:
No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority.
6. P.W. 1 is the Sanitary Inspector of the Panchayat Board, and under G.O. No. 3591, Health, dated 26th November, 1965 published at page 628 of Part I-A of the Fort St. George Gazette, dated 7th December, 1955 all Sanitary Inspectors of Panchayat Boards were appointed as Food Inspectors, under the Act. That is not disputed. G.O. No. 1861 Health dated 6th June, 1956 published at page 310 of Part 1-A of the Fort St. George Gazette, dated 20th June, 1956 authorised Food Inspectors to institute prosecutions for offences under the Act. The actual notification reads thus:
In exercise of the powers conferred by Sub-section (1) of Section 20 of the Prevention of Food Adulteration Act, 1954, the Governor of Madras hereby authorises the Food Inspectors, appointed under the said Act to institute prosecutions for offences under the Act.
7. The complaint itself quoted the above Government Orders and the name of the complainant was stated as the Food Inspector, Ariyalur Panchayat, Ariyalur Hence, it is clear that the complaint was filed by the Food Inspector in pursuance of the authority under the two Government Orders and in particular G.O. No. 1861, Health dated 6th June, 1956. Two contentions were put forward before the learned Magistrate on behalf of the accused; firstly, that the complaint must really be deemed to have been filed by the Ariyalur Panchayat, through the Food Inspector; in such a case the written consent of the Panchayat, was necessary, but that was not forthcoming. Secondly, it was urged that, even assuming that the complaint was filed by the Food Inspector himself, he had not been authorised 'in this behalf' by the State Government within the meaning of Section 20(1). The argument was that the authorisation in G.O. No. 1861, dated 6th June, 1956 was general and not specific with respect to the particular offence alleged to have been committed by the accused in this case and that the general authorisation was not enough. The learned Magistrate, accepted both these contentions.
8. The contention that the complaint must be deemed to have been filed by the Ariyalur Panchayat through the Food Inspector is absolutely untenable. The name of the complainant is specifically stated as the Food Inspector, Ariyalur Panchayat. Further, he quotes the two Government Orders which would be irrelevant unless. he himself was the complainant. The mere fact that the complaint prayed at the end that the cost of the analysis amounting to Rs. 15 might be recovered from the accused and paid to the Panchayat Board would not alter the fact that the complaint was filed by the Food Inspector. Similarly, the fact that the receipt Exhibit P-2 issued by accused 1 was in favour of the Ariyalur Town Panchayat, would also not detract from the fact that the complainant was the Food Inspector.
9. The more substantial question is whether the authorisation contained in G.O. No. 1861, Health dated 6th June, 1956 authorising Food Inspectors like P.W. 1 will not be sufficient under Section 20(1) of the Act. Apart from the fact that the authorisation itself quoted Section 20(1) of the Act, a moment's reflection will Suffice to show that the authorisation is sufficient. If we were to accept the argument of the accused that the authorisation should be specific for each particular offence, it would defeat the very purpose of the provisions in Section 20(1) permitting authorisation by the State Government of a prosecution under the Act. The provision permitting authorisation has been enacted because there would be a large number of cases all over the State or in the area of the local authority, and it would be impracticable for the State Government or even the local, authority to consider each particular case and then prosecute the case or give its written consent for the prosecution. If the authorisation is to be specific for each particular case, the words "authorised in this behalf" would be meaningless, and unnecessary because if the idea is that the prosecution of each particular case should be specifically authorised, the authorisation may well take the form of written consent and the provision for authorisation by the State Government or the local authority would clearly be unnecessary. In contrast with the "written consent of the State Government or the local authority" there is the provision "authorised in this behalf by the State Government or a local authority". That authorisation may be general and is, indeed, intended to be general. The point which I have made has been well expressed (if I may say so with respect) by Raman Nayar, J., in Municipal Health Officer and Food Inspector v. A.T. Estate Co.. That is also the view taken by Veeraswami, J., in Madurai City Co-operative Milk Supply Union v. Food Inspector (1961) M.W.N. (Crl.) 172. The decision of Veeraswami, J., has been followed by Kunhamed Kutti, J., in Corporation of Madras v. Arumugham .
10. The learned Magistrate has relied on two decisions : (i) Gour Chandra V. Public Prosecutor, Cuttack and (ii) K.G. Anjaneyulu v. Puri Municipality 1963 (2) Crl. L.J. 305 : I.L.R. 1963 Cut. 583 : A.I.R. 1963 Orissa 158. Is Gour Chandra v. Public Prosecutor, Cuttack , their Lordships of the Supreme Court, had to deal with Section 198-B (3)(a) of the Criminal Procedure Code. The complaint was one of defamation of His Excellency the Governor of Orissa, Sri Sukthankar. The complaint was filed by the Public Prosecutor with the previous sanction of the Secretary to Government, Home Department. The question was whether Section 198-B (3)(a) had been satisfied. The provision runs thus:
No complaint under Sub-section (1) shall be made by the Public Prosecutor except with the previous sanction;
(a) in the case of the President or the Vice-President or the Governor of a State or any Secretary to the Government authorised by him in this behalf.
It was held that the provision had not been complied with because the Secretary to the Government had not been authorised by the Governor 'in this behalf'. It appeared from the evidence of the Governor that he merely drew the attention of the Government to the article in the newspaper to take such action as deemed proper, but did not direct them to start a case of defamation. It was because of that evidence that it was held that the Secretary had not been authorised by the Governor' in this behalf. The general authorisation which had been issued by the Governor in the year 1956 (long before this incident) by which the Governor had authorised the Secretary to the Government in the Home Department to accord previous sanction to the making of complaints under Section 198-B (3)(a), Criminal Procedure Code, was held to be not sufficient. It was pointed out:
It has to be borne in mind that Sub-section (3) of Section 198-B speaks of a complaint under subsection (1) and the complaint under Sub-section (1) is a specific complaint in writing made by the Public Prosecutor. Therefore, reading the two sub-sections together it would be clear that the authorisation by the Governor is of the sanction with respect to a specific complaint. A general sanction can, therefore, not be of any avail... We may further point out that Clause (a) con templates authorisation by the Governor defamed and, therefore, an authorisation of the type which we have here, made by some one else in 1956, can be of no avail. Indeed, considering the nature of the offence, it is difficult to appreciate how an authorisation in advance to sanction the making of a complaint of defamation can at all be given. If such authorisation were good in law, the Secretary authorised can suo motu sanction the making of a complaint, without reference to the Governor. This may lead to the astounding result that even where a high dignitary wanted to ignore a defamation statement because it is beneath notice or because it may lead to embarrassment to him the Secretary, can set the law in motion and either make a mountain out of a mole hill or embarrass the Governor himself, Such a construction would defeat the very object which the Legislature had in view when it enacted the provision. We, therefore, reject the argument of learned Counsel and hold that the sanction given by the Secretary, Home Department, was not duly authorised by the Governor.
11. That case is obviously distinguishable from the present case. The wording of Section 198-B(3)(a), Criminal Procedure Code, is different from the wording of Section 20(1) of the Prevention of Food Adulteration Act, and, further, the considerations which require authorisation of a complaint of defamation by the Governor specifically with reference to the particular case are not present in the case of a general authorisation by the State Government of Food Inspectors in respect of an offence under the Prevention of Food Adulteration Act. There will be no embarrassment to the State Government by the Food Inspector prosecuting a particular case, by virtue of the general authorisation, without consulting the Government in the particular case.
12. The decision of Narasimhan, C.J., in Anjaneyalu v. Puri Municipality , is also obviously distinguishable.
There the prosecution was sanctioned by the Chairman of the Puri Municipality. There was, however, no proof that he had been duly authorised in that behalf either by the State Government or by the Puri Municipality. The prosecution, however, urged that such authorisation was contained in the resolution of the Municipality of 1951 to the effect.
The Chairman is authorised by the Council to file and conduct all sorts of litigation on behalf of the Municipality
Narasimhan, C.J., held, and rightly, that it would not amount to authorisation 'in this behalf under Section 20(1) of the Prevention of Food Adulteration Act. Indeed, the authorisation had been given long before the Prevention of Food Adulteration Act came into force. The learned Judge also held rightly, if I may say so, that Section 96(1) of the Orissa Municipal Act also could not be invoked by the prosecution because that section permitted the delegation by the Municipal Council to the Chairman only of the powers conferred on the Municipal Council under the Municipal Act and not an Act like the Prevention of Food Adulteration Act.
13. The point will not need so much discussion after the amendment effected by Act XLIX of 1964 of Section 20 introducing words to show that even a general authorisation is enough.
14. I hold therefore that the complaint was valid and the Court had jurisdiction to entertain the complaint.
15. Before proceeding to deal with the points urged by the defence on the merits, it will be convenient to indicate how the prosecution claims that an offence has been made out. Besides the report Exhibit P-4, the Public Analyst has been examined as C.W. 1 and his evidence is that the sample sent to him consisted of compounded asafoetida and it contained metanil yellow which is a coaltar dye the use of which is prohibited. Now, asafoetida is an article of food and that is not disputed. Rule 23 of the Rules says that the addition of a colouring matter to any article of food except as specifically permitted by the rules is prohibited. Rule 5 says that the standards of quality of the various articles of food specified in Appendix B to the rules are as defined in that Appendix. Rule A. 04 of the rules framed under Appendix B, in respect of compounded asafoetida, prohibits the use of coaltar dyes or mineral pigment. Again, Rule 28 of the main rule is also relevant. It says "No coaltar dyes or a mixture thereof except the following should be used in food" and metanil yellow is not one of the excepted coaltar dyes. Sri K.A. Panchapakesan also refers to Rule 29 which says, "Use of permitted coaltar dyes in or upon any food other than those enumerated below is prohibited", and he points out that compounded asafoetida is not one of the articles of food mentioned there. Rule 29 also will apply.
16. Thus, it is clear that metanil yellow in compounded asafoetida is prohibited under Rule 23 read with Rules 28 and 29 and Rule 5 read with Appendix B, rule A. 04.
17. The compounded asafoetida which was sold by accused 1 to P.W. 1 in this case would, therefore, be misbranded food under the definition in Section 2(ix)(j) of the Act which reads:
...an article of food shall be deemed to be misbranded-
If it contains any artificial favouring, artificial colouring or chemical preservative without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder.
The sale or distribution of such misbranded food is prohibited under Section 7(ii) of the Act, and is punishable under Section 16.
18. One of the main contentions raised on the merits by the learned Counsel for the defence is that Rules 7 and 18 have not been observed. Rule 17 says that the container of sample for analysis shall be sent to the Public Analyst enclosed together with a memorandum in Form VII. Rule 18 says that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately, by registered post, etc. Rule 7 says that on receipt of a package containing a sample for analysis from a Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with the specimen impression received separately and shall note the condition of the seals thereon. The Public Analyst will then cause the sample to be analysed and then send a report in Form III. The prosecution relies on the evidence of the Food Inspector (P.W. 1) and the Public Analyst as C.W. 1 to show that all these formalities were complied with. Their evidence shows, indeed, that the formalities, were complied with. Thus, the Public Analyst (C.W. 1) has stated that the sample was received first by railway parcel on 31st January, 1964 and later on 3rd February, 1964 the memorandum (Exhibit C-1) along with the specimen seal was received, and the seals were found intact and were compared by his assistant, Sri Ramachandran. Similar evidence has been given by the Food Inspector (P.W. 1). The Public Analyst was examined as a Court witness because of the contention of the defence that the specimen seal had not been sent separately at all. The evidence of C.W. 1 and that of the Food Inspector (P.W 1) show that the specimen seal was in fact sent separately. The learned defence Counsel has urged that the fact that the seals were compared does not find place in the report Exhibit P-4. It is in a standard form and the form does not contain any provision for mentioning the fact of comparison. When there is the actual evidence that should be sufficient. Sri C.K. Venkatanarasimhan, the learned Counsel for accused 2 to 6 points out that the Assistant, Ramachandran has not been examined to prove the comparison But so far as this case is concerned there is no reason to reject the evidence of C.W. 1 that his assistant actually made the comparison and it may be noted that the fact that the seals were intact finds place in Exhibit C-1 itself and that fact would have been mentioned only after comparison of the seals.
19. It is urged that Exhibit P-4 is vague because it merely mentions that the sample contained coaltar dye which is not in the list of permitted colours under the rules. The mere fact that metanil yellow has not been mentioned is immaterial, particularly in the face of the direct evidence of C.W. 1.
20. So far as accused 1 is concerned, he is clearly guilty. Accordingly, I set aside his acquittal.
21. So far as accused 2 to 6, however, are concerned, I find that there is no legal evidence on the side of the prosecution to show that accused 2 was the concern which sold the stuff to accused 1. It is true that the words Madurai Camphor and Hing Supplying Company find place on the label of M.O. 1, but that by itself may not be sufficient legal proof that the Madurai Camphor and Hing Supplying Company was the concern which actually distributed M.O. 1 for sale to accused 1. It is true that D.W. 1, an accountant of the Madurai Camphor and Hing Supplying Company, examined on behalf of accused 2 to 6, admitted in cross-examination by accused 1, "M.O. 1 is the packet we sell. We have supplied goods to accused 1." But the point is that when there was no legal evidence to show that accused 2 was the concern which distributed M.O. 1 for sale to accused 1 and that accused 3 to 6 were the partners thereof, there was no jurisdiction for the learned Magistrate to question accused 2 to 6 under Section 342, Criminal Procedure Code, and there was no need at all for these accused to examine any defence witness. If there had been some evidence, against the accused on the side of the prosecution, it would have been perfectly legitimate for the prosecution to invoke in its aid the evidence of the defence witness also. But when there was no legal evidence against the accused on the side of the prosecution, whose duty it was to prove its case by prima facie evidence, the prosecution must fail ab initio and could not rely upon the defence evidence.
22. Sri K.A. Panchapakesan (for the State) relied on the fact that the receipt Exhibit P-2 passed by accused 1 mentioned that M.O. 1 had been manufactured by Madurai Camphor and Hing Supplying Company. But that will only amount to a statement of accused 1 and would be admissible only against accused 1, and would not be evidence against accused 2 to 6 under Section 21 or 30 or any other provision of the Evidence Act. When there is no evidence that the second accused was the concern which distributed M.O. 1 to accused 1 for sale, the case must fail against accused 3 to 6 as well. Further, there is no legal proof that accused 3 to 6 were the partners. It is true that the reply of the Municipal Health Officer, (Exhibit P-8) to the Executive Officer of the Ariyalur Town Panchayat stated that accused 3 to 6 were the partners. But the Municipal Health Officer has not been examined as a witness and his letter to the Executive Officer will not be evidence of the facts stated therein. It is immaterial that accused 3 to 6 themselves stated that they were the partners of the Madurai Camphor and Hing Supplying Company, because, as I said, when there was no legal evidence, their statement cannot be taken into account by the prosecution.
23. This may be unfortunate, particularly when the retail vendor like accused 1 has to be punished, letting the suppliers escape, but it cannot be helped.
24. Before closing, however, I may permit myself the observation that the Food Inspector need not have prosecuted this case at all and might have let off the accused with a warning, particularly accused 1 who is only a retail vendor. As I observed in a prior case (Crl. R.C. No. 1374 of I96I), though as a matter of construction of Section 20(1) it has to be held that the Food Inspector is authorized to prosecute, it is desirable that the power of prosecution is exercised by somebody other than the Food Inspector who himself investigated the case and would normally be interested in prosecuting all the cases investigated by him. Public interest will not suffer by not prosecuting cases like this where the mixture of coaltar dye was probably very slight and perhaps not materially injurious to the consuming public. As it is, I think it sufficient to let off accused 1 with admonition under Section 3 of the Probation of Offenders Act.