State of Bombay vs Parshottam Kanaiyalal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 56 of 1959

Decision Date: 31 August 1960

Coram: N. Rajagopala Ayyangar, S.K. Das, M. Hidayatullah

The case titled State of Bombay versus Parshottam Kanaiyalal was decided on 31 August 1960 by the Supreme Court of India. The judgment was authored by Justice N. Rajagopala Ayyangar, who was joined by Justices S. K. Das and M. Hidayatullah. The petitioner in the matter was the State of Bombay and the respondent was Parshottam Kanaiyalal. The decision is reported in the 1961 volume of the All India Reporter at page 1 and in the 1961 Supreme Court Reports (First Series) at page 458, with subsequent citations in later reports. The factual backdrop involved a complaint lodged by a Food Inspector who alleged that the respondent was selling adulterated milk. Section 20(1) of the Food Adulteration Act, 1954 (the Act) stipulates that no prosecution may be instituted under the Act unless it is brought either by or with the written consent of the State Government, a local authority, or a person authorised by such authority. In the present case, the Food Inspector obtained written consent from a person authorized by the local authority. The respondent challenged the validity of that consent on the ground that it did not expressly name the person in whose favour the consent was given. The Court held that where a prosecution is launched based on written consent issued by a competent authority, the consent need not specify the complainant by name. The statutory language of Section 20(1) does not require the complainant to be identified in the consent, nor can such a requirement be inferred as an essential element of the provision. Accordingly, the written consent was sufficient to authorize the commencement of the specific prosecution, and it was not necessary for the consent to be in favour of the complainant who had initially filed the complaint.

The appeal arose by special leave and concerned a narrow point of construction of Section 20(1) of the Prevention of Food Adulteration Act, 1954 (the Act). The respondent operated a milk shop situated within the municipal limits of the city of Baroda. On 9 July 1956 a Food Inspector employed by the municipal authority visited the shop, purchased a sample of milk and sent it to the Public Analyst for testing. The analyst’s report concluded that the sample was adulterated. Following this, the Inspector applied to the Chief Officer of the Borough Municipality, Baroda, seeking written consent to institute criminal proceedings under the Act against the respondent. The Chief Officer provided such written consent, after which a complaint was filed charging the respondent with an offence under Section 16 read with Section 7 of the Act for selling adulterated food. The case was tried before the Special Judicial Magistrate, First Class, Baroda. The respondent denied the allegations and raised several technical objections, the principal one being that the prosecution was invalid because it allegedly failed to comply with the requirements of Section 20(1) of the Act. That provision, excluding its proviso, provides that “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.” Counsel for the appellant, comprising two advocates, represented the State of Bombay, while counsel for the respondent represented Parshottam Kanaiyalal. Justice Ayyangar delivered the judgment of the Court. The Magistrate, after hearing the objections, rejected the respondent’s claim and allowed the prosecution to proceed.

In the present matter the Baroda Municipal Borough, which functioned as the local authority, provided its written consent for the initiation of criminal proceedings under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) against the respondent. The Chief Officer of the municipality, having been duly authorised by the Borough, executed a written consent to commence the prosecution, and subsequently a complaint was filed charging the respondent with an offence under section 16 read with section 7 of the Act for the sale of adulterated food. The trial was conducted before the Special Judicial Magistrate, First Class, Baroda. While denying guilt, the accused raised several technical objections, the chief of which was that the prosecution was defective because it allegedly failed to satisfy the requirements of section 20(1) of the Act.

Section 20(1) of the Act, omitting the proviso which the Court deemed unnecessary to cite, provides: “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.” The learned Magistrate rejected the accused’s objections and, finding the accused guilty of the charge, imposed a fine of three hundred rupees and, in the event of default, a term of rigorous imprisonment for three months.

Addressing the objection founded on section 20(1), the Magistrate explained that the Baroda Municipal Borough was the appropriate local authority and that it had, by resolution No 222 dated 7 May 1956, empowered both the Chief Officer and the health officer of the municipality to grant sanction for instituting proceedings under the Act. The Magistrate noted that the Chief Officer had, on 13 October 1956, provided a written consent to lodge the complaint against the accused, and that this consent was recorded as Exhibit 10/7. The resolution authorising the Chief Officer and the health officer was also placed on record as Exhibit 18/8. Consequently, the Magistrate concluded that a valid written consent had been given by a person duly authorised by the local authority, satisfying the statutory requirement of section 20(1).

The Magistrate further observed that a food inspector is permitted to file complaints under the Act only when a written consent is obtained from a local authority or from a person empowered by that authority. In the present case, the food inspector had submitted all relevant documents to the Chief Officer, who possessed the authority delegated by the municipality to grant such consent. After reviewing the documents, the Chief Officer issued the necessary written consent, thereby authorising the filing of the complaint. Although the consent did not bear the food inspector’s name, the Magistrate held that it was implicitly addressed to the complainant, meaning the food inspector, and therefore fulfilled the requirement of written consent under the Act.

In this case, the respondent, a food inspector who had obtained permission to act, appealed his conviction and sentence before the Sessions Judge at Baroda. The appellate court set aside the conviction and sentence on the ground that the food inspector was not competent to institute prosecution under section 20(1) of the Prevention of Food Adulteration Act. The Sessions Judge relied on a single‑judge decision of the Madras High Court in Cannanore Milk Supply Co‑operative Society, In re (1956) 2 M.L.J. 465. That decision held that, according to the wording of the statutory provision, the only authority whose “written consent” could authorise a prosecution was the State Government, and that neither “the local authority” nor “the person authorised in that behalf by the State Government or the local authority” possessed the competence to grant such written consents. Consequently, the Sessions Judge set aside the conviction, discharged the respondent and ordered that the case be remitted.

Subsequently, the State of Bombay appealed the decision to the High Court of Bombay, the appeal later being converted into a criminal revision petition. The High Court judges affirmed the order passed by the Sessions Judge, but they disagreed with his interpretation of section 20(1). The High Court held that the provision did not limit written consent solely to the State Government; rather, the consent could also be given by a local authority or a person authorised by either the State Government or a local authority. However, the High Court added that the written consent must expressly name the individual who is authorised to file the complaint. Because the consent in the present case did not name the food inspector as the authorised complainant, the High Court concluded that the prosecution had not been lawfully instituted. Acting on that decision, the State of Bombay obtained special leave to bring the matter before this Court.

The record shows that there is no dispute that the Baroda Municipality, as the local authority, had empowered its Chief Officer to issue consents under section 20(1) of the Act for filing complaints concerning offences under the same Act. It is also undisputed that the Chief Officer, on 13 October 1956, gave his written consent to lodge the complaint against the respondent. The consent is expressed in the following terms: “Under authority vested in the Chief Officer of the Baroda Borough Municipality… sanction is hereby given for instituting prosecution against the following milk vendors for contravening the provisions of Government of India’s Prevention of Food Adulteration Act, 1954.” The document then set out the name of the respondent, his address and the date of the alleged offence, and it continued with a paragraph stating: “This sanction is accorded after going through Milk Analysis Report and other pertinent documents and the nature of offence committed by each of the above persons as required by section 20 of the Prevention of Food Adulteration Act, 1954.”

The Court may state at the outset that it fully concurred with the learned Judges of the High Court in holding that, under section twenty of the Act, a prosecution may be instituted with the written consent not only of the State Government but also of “a focal authority” or “a person authorised in this behalf by the State Government or a local authority.” In the opinion of the Court, the language of the sub‑section admits no alternative construction. The High Court observed that the two commas appearing in the provision—one before and one after the phrase “or with the written consent of”—must be given effect. The plain grammatical reading, therefore, is that the written consent may be given by the State Government, by a local authority, by a person authorised by the State Government, or by a person authorised by a local authority. Accordingly, the Court understood that the provision permits the institution of a prosecution by any of the following: (1) the State Government; (2) a local authority; (3) a person authorised by the State Government; or (4) a person authorised by a local authority. Moreover, the prosecution may proceed with the consent of any one of these four categories. Even disregarding the commas, the construction adopted by the Madras High Court in Cannanore Milk Supply Cooperative Society, In re (1956) 2 M.L.J. 465, could not be sustained unless the sub‑section were rewritten to read “…shall be instituted by or with the written consent of the State Government or by a local authority or a person authorised in this behalf by the State Government or a local authority.” Without inserting the word “by” before the phrase “a local authority,” it would be impossible to exclude the written consents of local authorities and similarly authorised persons from the scope of the sub‑section.

The High Court’s conclusion that the prosecution was incompetent rested on the ground that the written consent did not specify the individual “in whose favour” the sanction or consent was given. The High Court declared that a written sanction of the kind presented in the present case, or a written consent that fails to mention the person to whom such consent is addressed, would not satisfy the requirement of the provision. Because the present written consent omitted the name of the Food Inspector as the officer competent to institute the prosecution, the High Court held that the institution of the prosecution was without jurisdiction. Counsel for the appellant‑State challenged the correctness of this construction and referred to the analogy of decisions rendered under section one hundred and ninety‑seven of the Criminal Procedure Code, where it has been held that a sanction need not name the person who may institute the prosecution. The Court, however, considered it unnecessary to explore the comparative scope of section one ninety‑seven of the Criminal Procedure Code and section twenty of the Prevention of Food Adulteration Act, and chose to base its decision solely on the terms of section twenty as they appear.

In explaining its reasoning, the Court cited the line of cases decided under section 197 of the Criminal Procedure Code, which hold that a “sanction” need not specify the individual who may institute the prosecution. The Court found it unnecessary to examine in detail the comparative reach of the language of section 197 of the Criminal Procedure Code and that of section 20(1) of the Prevention of Food Adulteration Act. Instead, it chose to base its decision directly on the wording of section 20(1) itself. The statute, the Court observed, does not expressly require that the complainant be named in the written consent. Consequently, the only issue to be decided was whether such a naming requirement could be read into the provision as an essential implication. The Court first considered the purpose behind the rule. It held that the rule was clearly intended to prevent the launch of frivolous or harassing prosecutions against traders. Accordingly, the provision allows a complaint to be filed either by a specifically named or designated authority or with the written consent of such an authority. While it is reasonable to infer that, before granting written consent, the competent authority must examine the facts and be satisfied that a prima facie case exists, the Court declined to infer that the authority must also name the complainant in the consent. In the case before it, the analytical report had been placed before the Chief Officer of the Municipality, and after evaluating that report and the associated documents, the Chief Officer gave the written consent or sanction.

Turning to the language of the subsection, the Court noted that it indicates the written consent is intended for the initiation of a particular prosecution, not for authorising a complainant to file a complaint. Apart from the State Government and the local authority, which the provision expressly identifies as competent to start prosecutions, the statute also includes persons “authorised in this behalf.” The expression “person authorised in this behalf” clearly refers to a named individual who has been given authority. In these four categories, the authority or person filing the complaint must itself consider the reasonableness and propriety of the prosecution and be satisfied that it is not frivolous. By contrast, the other class of provisions uses the wording “no prosecution shall be instituted except with the written consent of,” placing emphasis on the consent required for filing the prosecution rather than on the identity of the person filing it. The preliminary assessment of whether the prosecution is desirable and proper, the Court held, rests with the person or authority granting the written consent, not with the complainant. The two classes are therefore distinct, and the use of different terminology for each signals that, in the second class, the statute does not demand that the complainant’s name be specified; the consent is directed to a particular prosecution. Accordingly, the Court concluded that the prosecution in the present matter satisfied the requirements of section 20(1) of the Act. It rejected the High Court’s argument that, because the written consent did not name a person, the complaint might be lodged by individuals beyond the control of the local authority, and therefore the statute required naming the complainant. The Court found that apprehension unsupported by the statutory language.

In this case the Court noted that the two classes of authority for instituting prosecutions are distinct. The use of different wording to describe the two types of devolution of authority shows that, in the second class—where prosecutions are filed on the basis of written consents granted by the competent person or authority—the statute does not require the name of the complainant to be specified. The consent is directed to a particular prosecution rather than to a particular complainant. Accordingly, the prosecution in the present matter was found to have been instituted on a complaint that fulfilled the requirements of section 20(1) of the Act.

The High Court had reasoned that, if no person is named in the written consent, a complaint could be lodged by individuals over whom “the local authority” would have no control, and therefore it was necessary to interpret section 20(1) as requiring the written consent to name the person authorised to file the complaint. The Court held that this apprehension was not justified. The written consent must be filed by the complainant in order to enable the complaint to be entertained; it is not a document that will be publicly filed before the Magistrate for anyone to use. Moreover, even accepting the High Court’s reasoning, there is no statutory restriction on who may be named as the authorised complainant. While it is usual for the named person to be a municipal officer, it is theoretically possible for a non‑municipal person to be named, and the municipal authority would then have no administrative control over that individual. The complication identified by the High Court would therefore persist even if a name were included in the written consent. For this reason the Court concluded that there is no necessity to read section 20(1) as requiring the complainant’s name to appear in the written consent. The respondent was not represented before the Court. Because of the importance of the matter, an amicus‑curiae was invited to appear, and the Court expressed gratitude for the assistance provided. The appeal was allowed, the order of the High Court was set aside, and the order of the Magistrate was restored.