# SCPREME COURT REPOHTS (1961] THE STATE OF BOMBAY v. PAHSHOTTAM KA~AlYALAL

- **Citation:** [1961] 1 S.C.R. 458
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Criminal Appeal No. 56 of 1959
- **Bench:** S. K. DAs, \f. HrnA YATULLAH, X. Ra.Jagopala Ayya1'0Ar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/scpreme-court-repohts-1961-the-state-of-bombay-v-pahshottam-ka-alyalal-2178
- **Pages:** 8

## Headnote

Cri111i11rd Trial-Sta/1,!e: barring prosecution except will: <rritten
consent of con1petent a1,thorit):-iVhethcr co11sent 111ust be in favour
of name.I paso11 -
Food Ad11//cratio11 Act. r954
(37 of r954),
s. 20(I).
A complaint was filed against the respondent by the Food
Inspector for selling adulterated milk. Section 20(1) of the
foot\ Adulteration Act. 1954, provided that no prosecution shall
be institutcJ untler the Act "except by. or with the written consent of. the State Government or local authority or a person
authorised in this behalf by the State Government or a local
authority". On the application of the food Inspector consent
in writing was gi1•en by a person authorised by the local authority.
But it was contended by the respondent that the -.•·ritten
consent \\·as of no a\'ail as it did not in terms name the person
in v.'hose favour it \Vas given.
Held, that wl1ere a prosecution was launched on the basis of
a written consent granted by the competent person or authority,
it \\'as not nccr.ssary to name the complainant in the consent.
The Act did not in terms re<1uirc that the GOmplarnant shall be
named in the \\·rittcn consent nor could such a lirnitation or
condition be gathered as a nect'3Sary intendment of the provision. The written consent was for the launching of a specified
prosecution an<l nce<l not necessarily be in favour of a complainant authorising him lo file a complaint.
CRrnI~AL APPELLATE JURISDICTION :
Criminal
Appeal No. 56 of 1959.
Appeal by special leave from the judgment and
order dated December 18, 1957, of the former Bombay
High Court in Criminal Hovision ~o. 1671 of 1957,
arising out of the judgment and order dated June 7,
1957, of tho Sessions Judge, Baroda, in Criminal
Appeal No. 33 of 1957.
II. R. Khanna and D. Gupta, for tho appoll11.nt.
G. C. Mathur, for the respondent.
1960. August 31. The Judgment of the Court was
delivered by
1 S.C.R. SUPREME COURT REPORTS
459
AYYANGAR J.-This appeal by special leave of this
Court raises a very short point reg11rding the construction of s. 20(1) of the Prevention of ]food Adulteration
Act, 1954 (37 of 1954).
The respondent owned a milk shop within the
Municipal limits of the city of Baroda. The Food
Inspector of the Municipality visited the shop on
July 9, 1956 and purchased milk for analysis. This
was sent to the Public Analyst· and 1Yhen his report
was to the effect that the sample was adulterated, the
Inspector applied to the Chief Officer, Borough Municipality, Baroda, for the latter'aconsent, for instituting
criminal proceedings under the Prevention of Food
Adulteration Act, 1954 (referred to hereafter as the
Act), against the respondent. A consent in writing to
the initiation of this prosecution was given by the
Chief Officer and thereafter the complaiqt out of which
this appeal arises was instituted charging the respondent with an offence under s. 16 read with s. 7 of the
Act for selling adulterated food.
The case was tried by the Special Judicial Magistrate, First Class, Baroda. Besides denying his guilt,
the accused raised various technical objections, the
principal of which was that the prosecution was incompetent because of non.compliance with the terms
of s. 20( 1) of the Act.
This provision, omitting the
proviso to which it is unnecessary to refer, runs:
"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 Magistrate overruled these objections and holding the accused guilty of the offence charged sentenced
him to pay a fine of Rs. 300/- and in defa,ult to rigorous imprisonment for three months. Dealing with the
objection based on s. 20(1) of the Act with which alone
we are concerned, the learned Magistrate said:
" In the present case Baooda Municipal Borough
is the local authority and it has authorized the Chief
Officer and the health officer of the Munici

## Text

Augrot .JI.
458
SCPREME COURT REPOHTS
(1961]
THE STATE OF BOMBAY
v.
PAHSHOTTAM KA~AlYALAL.
(S. K. DAs, :\f. HrnA YATULLAH and X. RA.JAGOPALA
AYYA1'0AR, JJ.)
Cri111i11rd Trial-Sta/1,!e: barring prosecution except will: <rritten
consent of con1petent a1,thorit):-iVhethcr co11sent 111ust be in favour
of name.I paso11 -
Food Ad11//cratio11 Act. r954
(37 of r954),
s. 20(I).
A complaint was filed against the respondent by the Food
Inspector for selling adulterated milk. Section 20(1) of the
foot\ Adulteration Act. 1954, provided that no prosecution shall
be institutcJ untler the Act "except by. or with the written consent of. the State Government or local authority or a person
authorised in this behalf by the State Government or a local
authority". On the application of the food Inspector consent
in writing was gi1•en by a person authorised by the local authority.
But it was contended by the respondent that the -.•·ritten
consent \\·as of no a\'ail as it did not in terms name the person
in v.'hose favour it \Vas given.
Held, that wl1ere a prosecution was launched on the basis of
a written consent granted by the competent person or authority,
it \\'as not nccr.ssary to name the complainant in the consent.
The Act did not in terms re<1uirc that the GOmplarnant shall be
named in the \\·rittcn consent nor could such a lirnitation or
condition be gathered as a nect'3Sary intendment of the provision. The written consent was for the launching of a specified
prosecution an<l nce<l not necessarily be in favour of a complainant authorising him lo file a complaint.
CRrnI~AL APPELLATE JURISDICTION :
Criminal
Appeal No. 56 of 1959.
Appeal by special leave from the judgment and
order dated December 18, 1957, of the former Bombay
High Court in Criminal Hovision ~o. 1671 of 1957,
arising out of the judgment and order dated June 7,
1957, of tho Sessions Judge, Baroda, in Criminal
Appeal No. 33 of 1957.
II. R. Khanna and D. Gupta, for tho appoll11.nt.
G. C. Mathur, for the respondent.
1960. August 31. The Judgment of the Court was
delivered by
1 S.C.R. SUPREME COURT REPORTS
459
AYYANGAR J.-This appeal by special leave of this
Court raises a very short point reg11rding the construction of s. 20(1) of the Prevention of ]food Adulteration
Act, 1954 (37 of 1954).
The respondent owned a milk shop within the
Municipal limits of the city of Baroda. The Food
Inspector of the Municipality visited the shop on
July 9, 1956 and purchased milk for analysis. This
was sent to the Public Analyst· and 1Yhen his report
was to the effect that the sample was adulterated, the
Inspector applied to the Chief Officer, Borough Municipality, Baroda, for the latter'aconsent, for instituting
criminal proceedings under the Prevention of Food
Adulteration Act, 1954 (referred to hereafter as the
Act), against the respondent. A consent in writing to
the initiation of this prosecution was given by the
Chief Officer and thereafter the complaiqt out of which
this appeal arises was instituted charging the respondent with an offence under s. 16 read with s. 7 of the
Act for selling adulterated food.
The case was tried by the Special Judicial Magistrate, First Class, Baroda. Besides denying his guilt,
the accused raised various technical objections, the
principal of which was that the prosecution was incompetent because of non.compliance with the terms
of s. 20( 1) of the Act.
This provision, omitting the
proviso to which it is unnecessary to refer, runs:
"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 Magistrate overruled these objections and holding the accused guilty of the offence charged sentenced
him to pay a fine of Rs. 300/- and in defa,ult to rigorous imprisonment for three months. Dealing with the
objection based on s. 20(1) of the Act with which alone
we are concerned, the learned Magistrate said:
" In the present case Baooda Municipal Borough
is the local authority and it has authorized the Chief
Officer and the health officer of the Municipality to
~9
The State of
Bombay
v.
Pa•·shottani
Ka11aiyalal
Ayyangar J.l
The State of
Bonrbay
v.
Parsholtat'I
Kanaiyalal
.Ayyangar ].
460
SUPREME COURT REPORTS
[1961]
grant sanction to institute proceedings under this Act
by its resolution No. 222 dated Ma.y 7, 1956, the Chief
Officer has given consent in writing to lodge this complaint against the present accused under the Act on
October 13, 1956. The ea.id consent in writing is on
record at Ex. 10/7 .a.nd the copy of the Resolution of
the Municipality empowering the Chief Officer and the
health officer is also on record at Ex. 18/8. Thus in
the present case there is a valid consent in writing
given by the Chief Officer who has been duly authorised in this behalf by the Baroda. Municipal Borough,
to institute proceeding against the present accused
under the Act ............... The Food Inspector can lodge
the complaints under the Act if consent in writing is
given by- a local authority or a person empowered in
this behalf by the local authority. The food inspector
had in the present case submitted a.II the papers to the
Chief Officer who has been invested with the powers
by the Municipality to give consent in order to seek
his necessary consent in writing before lodging the
complaint against the present accused.
And after
going through the said papers the Chief Officer had
duly given consent to him to lodge this complaint. It
is true that the consent does not bear the name of the
food inspector but it impliedly follows that the ooneent
was given by the Chief Officer to the person, viz., the
complainant food inspector who sought the permission
and none else."
Against his conviction and sentence the respondent
filed a.n appeal to the Court of the Sessions Judge a.t
Baroda.. The Appellate Court set a.side the order of
conviction and sentence on the ground that the Food
Inepecto~ wa.s not competent to institute the prosecution under s. 20(1) of the Act. Relying on the decision
of a single Judge of the Madras High Court in Cannanore Milk Supply Co-operative Society, In re('), the
learned Sessions Judge held that under the terms of
the section, the only authority with whose " written
consent" a. prosecution could be instituted was the
State Government and that neither " the local authority " nor " the person authorized in that behalf by the
(1) (1956) 2 M.L.J. 465.
1 S.C.R. SUPREME COURT REPORTS
461
State Government or the local authority" were com-
'960
petent to grant "written consents" for the initiation
Tlie State of
of prosecutions. ·. He, therefore, set aside the convic-
. Bo»•b•y.
tion and sentence and discharged the respondent.
v.
The matter was thereafter brought up before the
Parshottam
High Court of Bombay by the State by an appeal
Kanaiyalal
later converted into a Criminal Revision petition.
Ayyangar ].
The learned Judges of the High Court affirmed the
order passed by the learned Sessions Judge. They
disagreed with the Sessions Judge in his interpretation of s. 20(1) that a prosecution could not be instituted with " the written consent" of any authority
other than the State Government. They, however,
held that "the written consent " should name the
person who could institute the complaint and that as
" the consent" in the present case had not named the
Food Inspector as the person authorized to file the
complaint, the prosecution was not legally initiated.
It is from this decision of the High Court that the
State of Bombay, having obtained special leave of
this Court, has brought this matter up before us.
There is here no dispute that " the local authority "
-the Baroda Municipality, had authorized the Chief
Officer of the Municipality to grant con~nts under
s. 20( l) of the Act for the filing of complaints in
regard to offences under the Act. There is no dispute
either that the Chief Officer granted on October 13,
1956, his "written consent" to the filing of this complaint against the respondent. The " consent " is 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 name of the respon.dent, his address and the
date of the offeJlce are then set out and it is followed
. by a paragraph' which runs:
" This sanction is accorded after going through
Milk Analysis Report and other pertinent documents
and th~ nature of offence committed by each of the
Ti·e Staft 1Jj
v.
Pro ~1iou,1111
1~·a11a!y<1/al
Ayya11J:ar J.
462
SUPRE~fE COURT REPORTS
[ 1961 J
above persons as required by s. 20 of the Preventiori..
of Food Adulteration Act, 1954."
We may, at the outset, point out that we entirely
agree with the learned Judges of the High Court in
their view that on the terms of s. 20(1) a prosecution
could be instituted with the written consent not
merely of the State Government but "of a local authority" or "a person authorised in this behalf by the
State Government or a local authority ". In our
opinion, on the language of the sub-section no other
construction appears possible.
The learned Judges of
the High Court said :
"The construction which has been put by the
learned Sessions Judge obviously ignores the two
commas, which appear in the section before and after
tho clause "or with the written consent of". One of
the commas precedes, and the other follows the clause
"or with the written consent of". The plain grammatical meaning of th;s section is tha.t the written
consent may be of the State Government, or a local
authority, or a person authorised in that behalf by
the State Government or loeal authority. In our
view, under this section, tho prosecution can be instituted (l) by the State Government, (2) by a local
authority, (3) by a person authorised in tba.t behalf
by the State Government, or (4) by a person similarly
authorised by a local authority. Further, a prosecution can a.Isa be instituted with the consent of any of
these four authorities."
Even ape.rt from the two commas, the construction
which found favour with the learned Judge of the
Madras High Court in Cannanore Milk Supply Cooperative Society, In re(') is not possible without the
sub-section being rewritten in these terms:
" ............ she.II be instituted by or with the
written consent of the Sta.to Government or by a local
authority or a person authorised in this behalf by tho
State Government or a. local authority."
Without the insertion of the word " by " before tho
words " a. local authority ", it would not be poSBiblo to
exclude the written consents of local authorities etc.
from the content of the sub-section.
(1) (1956) 2 M.L J. 465.
1 S.C.R. SUPREME COURT REPORTS
463
As already stated, the reasoning, however, by which
the learned Judges of the High Court held the pro.
secution to be incompetent was that "the written
consent " did not in terms, name the person " in whose
favour" the sanction or" written consent" was given.
The learned Judges stated :
"A written sanction of the nature which we have
in the present case, or a written consent, without
mentioning ti)e person to whom such consent or sanction is given, would, in our view, not be a sufficient
compliance with the terms of the sanction .............. ..
The present· written consent does not mention the
name of the Food Inspector as the person competent
to institute ·the prosecution, and therefore we must·
hold that the institution of the prosecution, was without jurisdiction".
The learned Counsel for the appellant-State challenged the correctness of this construction.
He referred
us to the analogy of the decisions rendered on s. 197
of the Criminal Procedure Code where it has been
held that "the sanction" referred to need not name
the person who could institute the prosecution. We
consider it unnecessary to canva.ss the relative scope
of the language of s. 197 of the Criminal Procedure
Code and of s. 20(1) of the Prevention of Food Adu!.
teration Act. We prefer to rest our decision on the
terms of s. 20(1) itself. To start with, the Statute does
not in terms prescribe that the complainant shall be
named in the "written consAnt ". The only question,
therefore, is whether such a limitation or condition
could be gathered as a necessary intendment of the
provision. In the first place, the reason of the rule
could not suggest or imply such a condition.
The
rule 4as undoubtedly been d!•signed to prevent the
launching of.frivolous or harass:ng prosecutions against
traders. It therefore provide' that the complaint
should be filed, either by a named or specified authority or with the written consent of such authority. To
read by implication that befon, granting a written
consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case
and satisfy itself that a prima f acie case exists for the
1960
The State of
Botnbay -
v.
Parshottam
Kanaiyalal
Ayyangar ].
1960
TJit Stale of
Botnbay
...
Parsliotlatn
Ka11oiyalol
Ayyangar ].
464
SUPREME COURT REPORTS
[1961)
alleged offender being put up before a Court appears
reasonable, but the further implication that the complainant must be named in the written consent does
not, in our opinion, follow.
In the present case, the
Analyst's Report wa.s before the Chief Officer of the
Municipality and it was after considering that report
and the connected documents that the written consent
or sanction wa.s given. In the second plac~, the subsection itself con ta.ins a.n indication that the written
consent is for tho launching of a. specified prosecution,
and not one "in favour" of a. complainant authorising him to file the complaint. Omitting for the
moment the State Government a.nd " the local authority " which are specified in the provision as competent by themselves to initiate prosecutions, persons
"authorised by " these two authorities are further
included. The expression " person authorised in this
boha.lf" obviously refers to a. named person who is so
authorized. In the case of these four categories, the
authority or person filing the complaint ha.s ·itself or
himself to consider the rea.sona.bleness and propriety.
of the prosecution and be satisfied that the prosecution is not frivolous and is called for. Turning next
to the other class, the relevant words are " no prosecution ............... shall be instituted except ........... .
with the written consent of ............... ". Herc the emphaBis is on the consent to the filing of the prosecution,
not t-0 the person filing it. The preliminary examination of the facts to ascertain the desirability and
propriety of the prosecution is in this last case, the responsibility of the person or authority giving the written
consent-not of the person who figures as the complainant. The two classes a.re distinct and the employment of different phraseology to designate the two
types of devolution of authority, constitutes a.n indication that in the second class of cases-where prosecutions are filed on the basis of written consents
granted by the competent person or authority, the
specification of tho name of the complainant is not a
statutory requirement-the consent being to a. apecified prosecution. We, therefore, consider that the
prosecution in the present case was instituted on a
•
1 S.C.R. SUPREME COURT REPORTS
465
complaint which fulfilled the requirements of s. 20(1)
of the Act.
One part of the reasoning of the learned Judges of
the High Court was, that in the absence of persons
being named in the written consent, a complaint.might
be lodged by persons over whom "the local authority" would.have no control and that for this reason
it was necessary to adopt the construction which they
did of s. 20(1), namely, that the written consent should
name the person authorized to file the complaint. In
our opinion, this apprehension is not justified, for the
written consent has to be filed by the complainant in
order to enable the complaint to be entertained, and
it is not as if the written consent will be available to
all and sundry to be filed before the Magistrate.
Besides, even on the reasoning of the learned Judges
of the High Court there is no restriction as to the
person who might be named as authorised to file the
complaint. Normally, of course, the person named
would be an officer of the Municipality, but theoretically there is a possibility that the person named
might not be a Municipal servant, and if" the written
consent" is in favour of such a person, the Municipal
authority would have no administrative control over
him. The complication referred to by the learned
Judges wvuld still be there, even though a person be
named in the written consent given by the local
authority. We, therefore, consider that this is not a
circumstance which of necessity leads to the construction that the complainant ought to be named in "the
written consent" under s. 20(1).
The respondent was not represented before this
Court, and in view of the importance of the matter,
Mr. G. C. Mathur was requested by the Court to
appear as amicus-curiae and we express our thanks to
him for the assistance he rendered us.
The appeal is accordingly allowed, the order of the
High Court is set aside, and that of th~ Magistrate
restored.
Appeal aUowed.
The Stale of
Bombaj
v.
Parshoetam
Kanaiyalal
Ayyangar ].