Supreme Court of India

FOOD INSPECTOR, ERNAKULAM AND ANR.versusP.S. SREENIVASA SHENOY

Citation: 2000 INSC 340
Decided: 19 July 2000
Disposal: Appeal(s) allowed
Bench: K T THOMAS

Holding

Fresh sanction is not required once prosecution is validly instituted; the certificate of the Director of the Central Food Laboratory supersedes the Public Analyst’s report and may be admitted without fresh consent.

Summary

The Food Inspector purchased a sample of toor dal and, after a Public Analyst reported it adulterated with kesari dal, filed a complaint under the Prevention of Food Adulteration Act. The respondent challenged the prosecution, arguing that a fresh sanction under Section 20 was required when a later certificate from the Director of the Central Food Laboratory superseded the Public Analyst’s report, indicating adulteration with tartrazine. The High Court held that fresh consent was necessary and ordered a stay. The Supreme Court reversed, holding that sanction is required only at the institution of prosecution and that the certificate, which supersedes the earlier report, can be admitted without fresh consent. It further ruled that Section 216(5) of the CrPC does not demand a new sanction when the facts remain the same. Consequently, the appeal was allowed and the High Court order set aside.

Issues considered

Whether a fresh consent or sanction under Section 20 of the Prevention of Food Adulteration Act, 1954 is required when the certificate of the Director of the Central Food Laboratory supersedes the Public Analyst's report after prosecution has been instituted.
Whether the change in the nature of adulteration (different adulterant) creates a new offence necessitating fresh sanction.
Whether Section 216(5) of the Criminal Procedure Code mandates fresh sanction for altered charges in such circumstances.
Whether the prosecution can proceed on the basis of the certificate without obtaining fresh sanction.

Legislation cited

Code of Criminal Procedure, 1973s. 216(5)
Prevention of Food Adulteration Act, 1954s. 10, s. 11, s. 13, s. 13(2), s. 13(2-B), s. 13(2-D), s. 13(3), s. 13(5), s. 16(1-A), s. 20, s. 2(i-a)(h), s. 7(i)

Subjects

Food adulterationSection 20 sanctionPublic Analyst reportDirector Central Food Laboratory certificateFresh consentCriminal Procedure Code Section 216(5)Prosecution institutionSummary trial to warrant case

Judgment

FOOD INSPECTOR, ERNAKULAM AND ANR. A
v.
P.S. SREENIVASA SHENOY

JULY 19, 2000

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Prevention of Food Adulteration Act, 1954:

Sections 13 and 20(1)-A sample of toor dal was sent for analysis of
Public Analyst-Public Analyst giving a report that /oar dal was adulterated C
with Kesari dal-Prosecution started on the basis of report o; ,1blic Analyst
under Section 16(I-A) read with Sections 2(i-a)(h) and 7(i) against the
respondent-Later, on an application of respondent, a part of the sample was
sent for the examination of Director, Central Food Laboratory, who gave a
report that the toor dal was adulterated as it contained tartrazine (synthetic D
coal tar dye)-On report of Director, a summary trial converted into warrant
case trial-Revision against the order of Magistrate allowed by the High

- Court on the ground that the appellant had not obtained fresh sanction
under Section 20 of the Act on the strength of the new facts stated in the
certificate of the Director, Central Food Laboratory-Held, fresh sanction
not required-Sanction was required only at the stage of institution of the E
prosecution and not at post institutional stage when the certificate of the
Director, Central Food Laboratory could be brought in evidence-If the
amended charge includes a new offence for which previous sanction is
necessary, then prosecution for such new offence cannot be started without
such sanction-Under second limb of Section 216(5) Cr.PC also, no fresh F
sanction is necessary-Criminal procedure Code, 1973, Section 216(5).

Sections 13(2), (2-B), (2-D), (3) and (5)--Certificate ofDirector, Central
Food Laboratory-Prior to institution of prosecution, a report of Public
Analyst can be obtained-But after the institution of case, certificate of
Director, can be obtained and brought in evidence. G

Appellant purchased toor dal from the grocery shop of the respondent
as a sample. One of the three parts of the sample was sent to a Public Analyst,
who gave his report stating that the sample contained kesari dal and thus the
sample was adulterated. Appellant filed complaint before the Additional Chief H
567
568 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A Judicial Magistrate for offences committed under Section 16(1-A) read with
Sections 2(i-a)(h) of the Prevention of Food Adulteration Act and a process
was issued by the Magistrate to the accused respondent. After entering
appearance, the respondent moved an application for sending second part of
sample for analysis to the Director, Central Food Laboratory. An order was
B passed accordingly. After analysis of the sample, the Director, Central Food
Laboratory sent a report to the Magistrate stating that the sample was
adulterated as it contained synthetic coal tar dye (tartrizine). On receipt of
the certificate the case was converted from a summary trial to a warrant case
trial. After examining three witnesses the trial Magistrate framed charges
against the respondent under Sections 2(i-a)(h) and 7(i) read with Section
C 16(1-A) of the Act. The respondent challenged the said order before the High
Court by way of a revision petition. Single Judge of the High Court allowed
the revision on the ground that no sanction was obtained under Section 20 of
the Act or. the strength of the new facts revealed in the certificate issued by
the Director, Central Food Laboratory. Magistrate was directed by the High
D Court to give an opportunity to the appellant to place the certificate of the
Director, Central Food Laboratory before the appropriate authority for giving
the sanction afresh and if such sanction is not procured, drop the prosecution
against the respondent. Hence this appeal.

It was contended by the appellant that by way of a notification dated
E 20.06.1996 issued by the Government, Food Inspectors of the State have been
authorised to institute prosecution proceedings under Section 20 of the Act,
but the said notification was not considered by the High Court.

It was contended by the accused-respondent that the High Court was
not told about the said general authorisation and hence the Single Judge would
F have proceeded on the premise that the prosecution was instituted on the
strength of the written consent granted to the complainant in respect of this
case.

Allowing the appeal, this Court

G HELD : I.I. When the certificate of the Director, Central Food
Laboratory superseded the report of the Public Analyst the latter stands sunk
to the botoom and in that place the certificate alone would remain on the
surface of evidence and hence that certificate alone can be considered as for
the facts stated therein regarding the sample concerned. Thus the real
contention posed is whether a fresh consent of the authority concerned is
H required when the said certificate has taken the place of the report of the
FOOD INSPECTOR, ERNAKULAM v. PS. SREENIVASA SHENOY 569

Public Analyst.1574-D-EI A
1.2. The certificate of the Director of the Central Food Laboratory can
be brought in evidence only in the post-institutional stage of a case, whereas
the report of the Public Analyst can be obtained during pre-institutional stage
of the prosecution. There is no scope for countenancing a situation when
prosecution proceedings can be instituted with th·e certificate of the Director B
of the Central Food Laboratory. What was in evidence in the form of report of
the Public Analyst stands substituted, during the evidence stage, by the
certificate of the Director of Central Food Laboratory. In other words, after
evidence stage commences, a new document would take the place of an existing
material already admitted in evidence. Thereaft~r no legal provision requires C
the case to be switched back to the pre-institutional stage. 1576-G-H; 577-A)

2. It is the court's function to dispatch the other part of the sample to.
the Director of the Central Food Laboratory. There is no need for obtaining
a fresh consent when the certificate of the Director of the Central Food
Laboratory has reached the court. (575-H; 576-A; 577-B] D

State of Bombay v. Parshottam Kanaiyala/, AIR 1961 SC 1 and A.K.
Roy v. State of Punjab, (1986) 3 FAC 66, relied on.

3. There is no good reason for making two different categories of cases
with the help of certificates issued by the Central Food Laboratory. Report of E
the Public Analyst alone is contemplated for instituting the prosecution and
consent or sanction is necessary only for such institution and that a post-
institutional development while exercising a statutory right conferred on the
accused for challenging the report of the Public Analyst during trial is not a
premise for turning the key backwards for a fresh institution of the F
prosecution, whatever be the result of the analysis made by the Central Food
Laboratory. 1578-H; 579-A, BJ

State of Gujarat v. Amba/al Mangan/al, (1978) 2 FAC 53 (Guj.) (DB)
and Prahladbhai Ambalal Patel v. State 'of Gujarat, (1984) 2 PFA Cases 27
(Guj.) (FB), approved. G
Rattan Lal v. State of Himachal Pradesh, (1989) 2 PFA Cases 190 (HP)
(fB) and Mis S.M Anwar & Co. v. State of West Bengal, (1994) All India
Prevention oj Food Adulteration Journal, 594 (Cal.), overruled.

4. It is also not possible to countenance the contention based on Section H
570 SUPREME COURT REPORTS [2000] SUPP. t S.C.R.

A 216(5) Cr.PC. What is intended by that provision is that a prosecution, which
requires previous sanction, cannot be started without such sanction even by
way of amending the charge midway the trial. If the amended charge includes
1
a new offence for which previou; sanction is necessary then prosecution for
such new offence cannot be started without such sanction. However, the second
B limb of the sub-section makes it clear that if sanction was already obtained
for prosecution on the same facts as those on which the new or altered charge
is founded then no fresh sanction is necessary. [574-B; 579-E, GI

5.1. The facts on which prosecution is founded under the Act were
broadly that the accused had sold adulterated toor dal to the Food Inspector.
C Variation regarding the reasops or the data by which two analysts had reached
the conclusion that the sample is adulterated is not sufficient to hold that the
basic facts on which the prosecution is founded, have been altered. Hence
Section 216(5) Cr. PC would not improve the position of the accused for the
purpose of obtaining fresh consent on the facts of this case. [579-F-G I

D 5.2. If the prosecution has been validly instituted, neither any new data
nor any added reasons contained in the certificate issued by the Director of
the Central Food Laboratory would be sufficient to annul the sanction already
obtained with which the prosecution was already instituted. The trial has to
proceed with the certificate on record which superseded the report of the
Publk Analyst. [579-H; 580-A[
E
6. In view of the above, it is not necessary to deal with the question whether
the prosecution was instituted with the written consent envisaged in Section
20 of the Prevention of Food Adulteration Act or whether it was instituted
under a general authorisation made by the State Government. [574-B-C)

F CRJMINAL APPELLATE JURISDICTION: Criminal Appeal No. 545
of2000.

From the Judgment and Order dated 26.8.98 of the Kerala High Court
in Cr!. R.P. No. 304 of 1997.

G Ms. Malini Poduval, Ms. Lansinglu Rongme and Manu Krishnan for the
Appellants.

Romy Chako and Rajiv Mehta for the Respondent.

The Judgment of the Court was delivered by

H THOMAS, J. Delay condoned. Leave granted.
FOOD INSPECT<.,R, ERNAKULAM v. PS SREENIVASA SHENOY [THOMAS, J.] 571

When Report of a Public Analyst was superseded by a certificate of A
Director of Central Food Laboratory, is it necessary to obtain a fresh consent
to institute prosecution and recommence the proceedings under the Prevention
of Food Adulteration Act, 1954 (for short 'the Act')? A Single Judge of the
High Court of Kerala held that it is necessary, and directed the trial magistrate
to wait for some more time and "in the event of no such consent of the B
appropriate authority is obtained and produced before the magistrate within
a reasonable time - not exceeding one month - for the purpose", discharge
the accused. The Food Inspector who instituted the prosecution as well as
the State have filed this appeal by special leave against the said order of the
High Court.

The facts out of which the said order happened to be passed, are the
c
following:

Appellant - Food Inspector filed a complaint against the respondent
with the following allegations: While the complainant was acting as Food
Inspector of Mobile Vigilance Squad (Ernakulam) he visited the grocery shop D
of the respondent on 15.4.1996 and purchased 750 gms. Of"Toor Dal" forthe
purpose of taking sample as per the provisions of the Act. The sample was
taken in the manner provided by the Act and one of the three parts of the
sample was sent to the Public Analyst who, after analysis, sent a Report
stating that the sample contained Kesari Dal and hence it was adulterated.
Thereupon the complaint was filed on the premise that .the respondent has E
committed the offence under Section 16(1-A) of the Act read wiJh Section
2(1)(h) and Section 7(1) of the Act.

Additional Chief Judicial Magistrate, Ernakulam before whom the
complaint was filed issued process to the respondent as accused. After
entering appearance in the case the respondent moved an application for F
sending a second part of the sample to the Director of Central Food Laboratory.
It was sent accordingly and upon the same being analysed at the Central
Food Laboratory the Director thereof sent a certificate to the trial court stating
that the sample does not contain "Kesari Dal" but the food article in the
sample was adulterated as it contained synthetic Coal Tar Dye (Tarterzine). G
On receipt of the said Certificate the trial magistrate converted the case from
summary trial to a warrant case trial. After examining three witnesses for the
prosecution the trial magistrate framed a charge against the accused on
10.3.1997. The material portion of the charge reads thus:

"Whereas on 15.4.1996 at 2 p.m. Food Inspector had purchased 750 H
572 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A grams of Toor Dal exposed for sale in your shop in a bag for Rs. 21
and when it was sent for analysis to the Central Food Laboratory it
was found that the Toor Dal purchased from you was below standard
and had contained syntheti~ colour and was adulterated as revealed
from examination of prosecution witnesses and records and your act
is an offence punishable under Section 2(i-a)(h); 7(i) read with 16(1-
B A)(I) of the Prevention of Food Adulteration Act, 1954 and that you
are to be tried for the aforesaid offence before this Court."

Respondent filed a revision before the High Court in challenge of the
order framing charge. The counsel for respondent contended before the High
C Court that no such charge could be framed since a new offence had been
revealed by the Certificate of the Director of Central Food Laboratory. He also
contended, alternatively, that when the Report of the Public Analyst was
found to be wrong the only course open to the court was to acquit the
accused because the complaint was based on that Report. Lastly, it was
contended that the complainant had not obtained sanction under Section 20
D of the Act on the strength of the new facts revealed in the Certificate issued
by the Director of Central Food Laboratory and hence a fresh sanction is
necessary for proceeding with the case.

Learned Single Judge did not accept the first set of contentions. However,
learned Single Judge found the last contention acceptable in the light of a
E decision rendered by the Calcutta High Court in Mis. S.M. Anwar & Co. v.
State a/West Bengal, (1994 All India Prevention ofFood Adulteration Journal
594). Learned Single Judge extracted the following passage from the above
said Calcutta decision:

"Since however, the certificate of the Director of Central Food
F Laboratory discloses a totally different kind of adulteration than what
was mentioned in the report of the Public Analyst and since the report
of the Public Analyst has been totally overturned and negatived to
the point of no offence, by the certificate of the Director, Central Food
Laboratory, I must hold that the prosecution cannot continue on a
G totally new fact about the nature of adulteration as indicated in the
certificate of the Director without obtaining necessary consent from
the appropriate authority."

However, learned Single Judge of the High Court of Kerala did not
choose to consider how far the said decision of the Calcutta High Court is
H legally adoptable, but merely followed that decision and held thus:
FOOD INSPECTOR, ERNAKULAM v. P.S. SREENIVASA SHENOY [THOMAS, J.] 573
"Accepting this decision, I have to hold that a fresh sanction is A·
necessary to proceed further with the case. Therefore, I direct that the
learned Magistrate, before proceeding further, will give the prosecution
an opportunity to place the certificate of the Director of Central Food
Laboratory before the appropriate authority for consideration and
consent for continuance of the prosecution and in the event of no
such consent of the appropriate authority is obtained and produced B
before the Magistrate shall discharge the accused and drop the present
proceedings."

Ms. Malini Poduval, learned counsel for the State of Kerala, contended
first that there was no question of any fresh sanction or consent to be C
obtained in this case as the prosecution was not instituted even earlier with
any consent of the Government, because the complainant was an authorised
person, falling within the purview of Section 20( 1) of the Act, to institute the
complaint. The said sub-section reads thus:

"No prosecution for an offence under this Act, not being an offence D
under Section 14 or Section 14-A, shall be instituted except by, or with
the written consent of the Central Government or the State Government
or a person authorised in this behalf, by general or special order, by
the Central Government or the State Government.

Provided that a prosecution for an offence under this Act may be E
instituted by a purchaser or recognised consumer association referred
to in Section 12, if he or it produces in court a copy of the report of
the public analyst along with the complaint."

(As the sub-section stands now subsequent to the amendments carried
out therein by Act 34 of 1976) F
The sub-section envisages five different authorities/persons any one of
whom can institute the prosecution for an offence thereunder. First is by the
Central Government; second is by a person authorised in this behalf by
general or special orders of the Central Government; third is by State
Government; fourth is by a person authorised in this behalf by general or G
special -oruers of the State Government, and fifth is by any person with a
written consent of any of the other four authorities/persons.

Learned counsel for the appellant - State invited our attention to a
notification issued by the Government of Kerala dated 20.3.1996 (it was
published in the Gazette dated SRO 320 of 1996) by which food inspectors H
574 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A of the State have been authrorised to institute prosecution proceedings under
Section 20 of the Act. But the said notification was not considered by the
High Court.

Shri Romy Chacko, learned counsel for the respondent submitted that
the High Court was not told about the said general authorisation and hence
B the learned Single Judge would have proceeded on the premise that the
prosecution was instituted on the strength of the written consent granted to
the complainant in respect of this case. We do not think it necessary to
countenance the said contention whether the prosecution was instituted with
the written consent envisaged in Section 20 of the Act or whether it was
C instituted under a general authorisation made by the State Government. We
propose to proceed on the assumption, without prejudice to the aforesaid
contention, that the appellant instituted the prosecution proceedings on the
strength of the written consent of one of the authorities concerned.

The stage at which the prosecution proceedings reached in the trial
D court was, as pointed out above, the receipt of the Certificate from the
Director of the Central Food Laboratory holding that there is no Kesari Dal
in sample, nevertheless the sample is adulterated inasmuch as it contained
synthetic Coal Tar Dye. When the Certificate superseded the Report of the
Public Analyst the latter stands sunk to the bottom and in that place the
Certificate alone would remain on the surface of evidence and hence that
E certificate alone can be considered as for the facts stated therein regarding
the sample concerned. Thus the real contention posed is whether a fresh
consent of the authority concerned is required when the said Certificate has
taken the place of the Report of the Public Analyst.

Shri Romy Chacko, learned counsel for the respondent, based his
F contention on the language of Section 20 of the Act as well as Section 216
of the Code of Criminal Procedure. He made an endeavour to take support
from the decisions of certain High Courts, including the decision of a Full
Bench of the Himachal Pradesh High Court. Ms. Malini Poduval, on the other
hand, contended that the consent contemplated in Section 20 of the Act is
G only for the institution of the prosecution and once the prosecution has been
instituted there is no provision for instituting the same complaint over again.
Learned counsel invited our attention to the decisions of certain other High
Courts, including a Full Bench decision of the High Court of Gujarat, in
support of her contention.

H Before we refer to the decisions of the High Court it is necessary to
FOOD INSPECTOR, ERNAKULAM v. P.S. SREENIVASA SHENOY [THOMAS, J.) 575

examine the relevant provisions of the Act. Section I 0 of the Act empowers A
a Food Inspector to take sample of any article of food from any person selling
such articles and to send such sample for analysis to the Public Analyst
appointed for the local area within which the sample has been taken. Section
11 says that when a food inspector takes a sample of food article for analysis
he shall divide the sample then and there into three parts in the manner B
prescribed therein and send one of. the parts of the sample to the Public
Analyst, while the remaining two parts of the sample shall be forwarded to
the Local Health Authority.

The purpose of sending the remaining two parts of the sample to the
Local Health Authority is two-fold. One purpose is to use one of the parts C
if and when the Public Analyst or the food inspector requisition the Local
Health Authority for sending one of those parts of the sample again to the
Public Analyst on the ground that the first part of the sample was lost or
damaged. This is actually a reserve purpose to meet any contingency. The
second purpose is to send one of the parts to the Director of the Central Food
Laboratory, if so required under Section 13 of the Act. D
Section 13( I) of the Act says that the Public Analyst shall deliver a
report of the result of the analysis of the food article submitted to him, to the
Local Health Authority. Sub-section (2) of Section 13 is the important provision
in this context and hence it is extracted below:
E
"On receipt of the report of the result of the analysis under sub-
section (I) to the effect that the article of food is adulterated, the
Local (Health) Authority shall, after the institution of prosecution
against the person from whom the sample of the article of food was
taken and the person, if any, whose name, address and other particulars F
have been disclosed under Section 14-A, forward, in such manner as
may be prescribed, a copy of the report of the result of the analysis
to such person or persons, as the case may be, informing such person
or persons that if it is so desired, either or both of them may make
an application to the court within a period of ten days from the date
of receipt of the copy of the report to get the sample of the article of G
food kept by the Local (Health) Authority analysed by the Central
Food Laboratory."

Thus the st:".ge for sending the other part of the sample to get it
analysed by the Central Food Laboratory arises only during the post-
institutional proceedings of the prosecution in the court. It is the court's H
576 SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A function to dispatch the other part of the sample to the Director of the Central
Food Laboratory. The Director shall complete the analysis within one month
of the date of receipt of the part of sample and send the Certificate to the
court before which the prosecution is pending.

Section 13(2-D) says that the court shall not continue with the
B proceedings pending before it until the receipt of the Certificate of the analysis
from the Director of the Central Food Laboratory. The purpose of keeping the
trial under suspended animation is that further proceedings can be revived
only after receipt of the Certificate, because the Certificate must, under law,
supersede the report of the Public Analyst. It is a statutory operation as can
C be seen from sub-section (3) which says that "the certificate issued by the
Director of the Central Food Laboratory under sub-section (2-B) shall
supersede the report given by the Public Analyst under sub-section (I)." In
this context a reference to sub-section (5) will also be advantageous and it
is extracted below:

D "Any document purporting to be a report signed by a public analyst,
unless it has been superseded under sub-section (3), or any document
purporting to be a certificate signed by the Director of the Central
Food Laboratory, may be used as evidence of the facts stated therein
in any proceeding under this Act or under Sections 272 to 276 of the
Indian Penal Code (45 of 1860):
E
Provided that any document purporting to be a certificate signed by
the Director of the Central Food Laboratory not being a certificate
with respect to the analysis of the part of the sample of any article
of food referred to in the proviso to sub-section (I-A) of Section 16
shall be final and conclusive evidence of the facts stated therein."
F
. The aforesaid scheme of the Act, particularly the setting of different
sub-sections in Section 13 very forcefully indicate that the certificate of the
Director of the Central Food Laboratory can be brought in evidence only in
the post-institutional stage of a case, whereas the report of the Public Analyst
G can be obtained during pre-institution stage of the prosecution. There is no
scope for countenancing a situation when prosecution proceedings can be
instituted with the certificate of the Director of the Central Food Laboratory.
What was in evidence in the form of Report of the Public Analyst stands
substituted, during the evidence stage, by the Certificate of the Director of
Central Food Laboratory. In other words, after evidence stage is commenced
H a new document would take the place of an existing material already admitted
FOOD INSPECTOR, ERNAKULAM "· P.S. SREENIVASA SHENOY [THOMAS, J.]. 577

in evidence. Thereafter no legal provision requires the case to be switched A
back to the pre-institution stage.

That apart, what is the need for obtaining a fresh consent when the
certificate of the Director of the Central Food Laooratory has reached the
court. Shri Romy Chacko, learned counsel, contended that the authority
consenting prosecution must apply his mind to the tacts of the case for B
satisfying himself that the facts warrants a prosecution and a prima facie case
exists against the alleged offender. Learned counsel relied on the decisions
in the State of Bombay v. Parshottam Kanaiya/al, AIR (1961) SC 1 and A.K.
Roy and Anr. v. State of Punjab and Ors., (1986) 3 FAC 66. The purpose of
insisting that the consenting authority should seriously apply his mind before C
according consent for launching prosecution, is to prevent unnecessary or
frivolous prosecution at the instance of any complainant against traders in
food articles. But once prosecution is instituted validly the matter is in the
hands of the judicial functionary and further proceedings can be controlled
by such functionary. The authority granting consent for institution of
prosecution is in no way more suited for preventing unnecessary prosecution D
than judicial functionaries. Therefore, a. switch back to the pre-institution
stage is unnecessary and hence unwarranted.

Different High Courts have taken two different views on the above legal
proposition. We may first refer to the decision rendered by a Division Bench E
of the Gujarat High Court in Stale of Gujarat v. Ambalal Magan/al, (1978) 2
FAC 53. That case happened to be referred to a Division Bench as Ahmadi,
J. (as the learned Chief Justice then was) doubted the correctness of a
decision rendered by another Single Judge of the Gujarat High Court who
upheld the acquittal of an accused on the ground that the Certificate issued
by the Director of Central Food Laboratory indicated deficiency in milk solid F
non-fat as against the report of the Public Analyst which indicated deficiency
only in milk fat, and that sanction for prosecution was accorded only on the
strength of the report of the Public Analyst. Upon the reference being made
by Ahmadi, J., a Division Bench of the Gujarat High Court after considering
various aspects of the matter held that "once the written consent to prosecution G.
is given by any of the four competent authorities, the institution of prosecution
should be regarded as if it is by that authority; no further question as regards
the validity of written consent as a result of subsequent event would arise
in such a case, where cognizance of offence is taken by the court." The
reasoning of the Division Bench is that the consent once given, cannot
become invalid merely because the evidence by which the offence is sought H

\
578 SUPREME COURT REPORTS [2000] SUPP. l S.C.R.

A to be proved changes as a result of subsequent events. Learned Judges
observed that "the offence being one and the same, another written consent
because of difference of opinion between the Public Analyst and the Director
of the _Central Food Laboratory, cannot be insisted upon before proceeding
with the trial of such a case".

B Subsequently a Full Bench of che same High Court in Prah/adbhai
Amba/al Patel v. State of Gujarat and anr., (1984) 2 PFA Cases 27 has
approved the ratio of the Division Bench in Amha/al Magan/al (supra). S.B.
Majumdar, J. (as his Lordship then was) speaking for the Full Bench, after
referring to various passages of the said Division Bench decision, has observed
C that "the aforesaid decision of the Division Bench in our view succinctly
brings out the correct legal position pertaining to prosecution of accused
under the Act".

But a Full Bench of the Himacahal Pradesh High Court, after considering
the aforesaid decisions of the Gujarat High Court took a different view in
D Rattan Lal v. State of Himachal Pradesh, (1989) 2 PFA Cases 190}. The ratio
of the said decision is extracted below:

"We are clearly of the opinion, that where the report of the Director
finds the sample to be adulterated for a reason, though different from
the one found by the Public Analyst, which does not alter the nature
E of the offence in the sense of bringing about a change of specie for
which it is punishable under Section 16 of the Act, there is no
necessity of seeking a fresh written consent for continuance of the
proceedings against the offender. Where, however, the difference in
the two reports is such that it results in altering the basic nature of
the offence, in the sense of the specie thereof, for which the consent
F was obtained earlier on the basis of the report of the Public Analyst,
the complainant must bring the facts found by the Director to the
notice of the appropriate authority for a decision whether the offender
deserved to be prosecuted or not."

We find the reasoning of the Division Bench of the Gujarat High Court
G in State a/Gujarat v. Amhalal Magan/al. (supra) as sound and in accordance
with law. There is no good reason for making two different categories of cases
with the help of Certificates issued by Central Food Laboratory. The Full
Bench of the Himachal Pradesh High Court missed the basic legal position
in this regard that report of the Public Analyst alone is contemplated for
H instituting the prosecution and consent or sanction is necessary only for
FOOD INSPECTOR. ERNAKULAM v. P.S. SREENIVASA SHENOY [THOMAS, J] 579
such institution, and that a post-institutional development while exercising a A
statutory right conferred on the accused for challenging the report of the
Public Analyst during trial is not a premise for turning the key backward for
a fresh institution of the prosecution, whatever be the result of the analysis
made by the Central Food Laboratory. Hence in our view the legal position
propounded by the Full bench of Himachal Pradesh High Court is erroneous. B
Nor would the alternative contention advanced by Shri Romy Chacko,
learned counsel for the respondent, based on Section 216(5) of the Code of
Criminal Procedure, help the respondent. That section deals with alteration of
charges framed by courts. The section enables the court to alter or add to
any charge at any time before judgment is pronounced. Sub-section (5) C
thereof reads thus:

"If the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall
not be proceeded with until such sanction is obtained, unless sanction
has been already obtained for a prosecution on the same facts as D
those on which the altered or added charge is founded." .

What is intended is that a prosecution, which requires previous sanction,
cannot be started without such sanction even by way of amending the charge
midway the trial. If the amended charge includes a new offence for which
previous sanction is necessary then prosecution for such new offence cannot E
be started without such sanction. However, the second limb of the sub-
section makes it clear that if sanction was already obtained for prosecution
on the same facts as those on which the new or altered charge is founded
then no fresh sanction is necessary.

The facts on which prosecution is founded under the Act were broadly F
that the accused had sold adulterated Toor Dal to the Food Inspector on 15-
4-1996. Variation regarding the reasons or the data by which two different
analysts had reached the conclusion that the sample is adulterated is not
sufficient to hold that the basic facts on which the prosecution is founded,
have been altered. Hence Section 21'6(5) of the Code would not improve the G
position of the accused for the purpose of obtaining fresh consent on the
facts of this case.

We are, therefore, of the view that if the prosecution has been validly
instituted, neither any new data nor any added reasons contained in the
Certificate issued by the Director of the Central Food Laboratory would be H
r
580 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A sufficient to annul the sanction already obtained with which the prosecution
was already instituted. The trial has to proceed with the Certificate on record
which superseded the Report of the Public Analyst.

For the aforesaid reasons we allow this appeal and set aside the impugned
order of the High Court.
B
RK.S. Appeal allowed.

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