ORDER
A. Pasayat, J.
1. The two petitioners faced trial before the learned Chief Judicial Magistrate, Balangir on the accusation that they had exposed mustered oil for sale, which on analysis by the Public Analyst was found to be adulterated to attract culpability under the provisions of the Prevention of Food Adulteration Act, 1954 (in short, the ‘Act’). They were convicted and sentenced, which got seal of approval of the appellate court. Petitioner Babulal was stated to be the proprietor of the shop which was issued with a food licence bearing No. 193-R-l 38 under the Prevention of Food Adulteration Rules, 1955 (in short, the ‘Rules’).
2. Matrix of accusation leading to trial is as follows:
On 6-10-1985 the Food Inspector, Balangir district visited the shop when the petitioner Mangturam was conducting the business activities, while petitioner Babulal was absent. The Food Inspector purchased 375 grams of mustard oil in presence of the witnesses having suspected that the same was adulterated. Due payment was made for the purchase and sample collected was sent for examination to the Public Analyst, who opined the same to be adulterated. A copy of the report was sent to the petitioners. After obtaining sanction from the local health authority, prosecution was instituted.
3. The accused persons took the plea that, when Food Inspector visited the shop same was closed, on his arrival the shop was opened, he opened a sealed tin and asked petitioner Mangturam to put some signature on blank papers though he was not in charge of business on behalf of petitioner Babulal.
4. Four witnesses were examined to further the prosecution case. Apart from the Food Inspector (PW. 1), his peon was examined as P.W. 2. Two other witnesses namely, Chhanda Charan Sahu and Ashok Kumar Barik were examined as P. Ws. 3 and 4 respectively. They claimed to be present when the statutory purchase was made by the Food Inspector. The learned Chief Judicial Magistrate was of the view that the prosecution has been able to establish its case. He held that there was violation of prohibition contained in Section 7 of the Act to attract punishment under Section 16(1)(i)(a), and accordingly convicted each of the petitioners, and sentenced each to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- each, in default to undergo rigorous imprisonment for three months. The conviction and sentence were maintained by the learned Additional Sessions Judge, Balangir.
5. In support of the revision application, the learned counsel for petitioners has advanced the following pleas; (i) the written consent given by the Chief District Medical Officer, Balangir was bereft of application of mind; (ii) mere mention by him that he had perused the report of the Food Inspector does not meet requirements of law; (iii) the sanctioning authority was not examined to clarify as to what documents were produced before him and therefore, the written consent was a mere empty formality; and (iv) there was non-compliance of Rule 18 of the Rules as the specimen impression of seal and memorandum were not sent in separate sealed packets by registered post. 6. The learned counsel for the State, however, submitted that every act done by a public officer is presumed to be in accordance with law, and the petitioners' case that there was any departure does not merit any consideration as they have not placed any material to prove the contrary.
7. I shall first deal with the scope and ambit of Section 20 dealing with the written consent. At the threshold it must be clarified that the expression ‘written consent’ has been in my cases placed at par with the expression “sanction’ as appearing in various statutes like Prevention of Corruption Act, 1947 or 1988. The expressions are not same. This was clarified by a Division Bench of this Court in Mahammad Yukud Khan v. State of Orissa, (1992) 5 OCR 54, to which I was a party. There is substance in the plea of the learned counsel for the petitioners that the written consent as required to be given under Section 20 is not an empty formality and there has to be application of mind. Whether there is application of mind, has to be decided on facts of each case, and no straitjacket formula can be provided. The facts brought on record are to be analysed and then a conclusion has to be arrived at by the Court. The Court is to see whether authority has applied its mind to a conclusion that a prima facie case existed. Merely because an authority authorised to give consent says that he has perused the records and has considered the materials, it cannot be laid down as a rule of universal application that there was non-application of mind. In this context Section 35 of the Indian Evidence Act, 1872 is relevant. It stipulates that an entry in any public or other official book, register, or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty, specially enjoined by the law of the country in which such book, register, or record is kept, is itself a relevant fact. To render a document admissible under Section 35, three conditions are to be satisfied. Such documents have been made admissible in evidence on account of their public nature, though their authenticity is not confirmed by the usual tests of truth, namely, the swearing and the cross-examination of the person who prepared them. They are entitled to the extraordinary degree of confidence partly because they are required by law to be kept, partly because their contents are of public interest and notoriety, but principally because they are made under the sanction of an oath of office, or at least under that of official duty by accredited agents appointed for that purpose. (See Phipson’s Evidence, 10th Edition, para 1122, at page 429). As observed by the apex Court in Brij Mohan Singh v. Privabrat Narain Singh, , the reason why as entry made by a public servant in public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when public servant makes it himself in the discharge of his official duty the probability of its being truly and correctly recorded is high. As observed in Taylor’s Evidence, Section 1429, and Best on Evidence, 8th Ed., Section 219 the principle on which this section is based is the circumstance that such records have been made by authorised and accredited agents appointed for the purpose and partly also the publicity of the subject-matter to which they relate. The law reposes such a confidence in public officers that it presumes they will discharge their several trust with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such a degree of caution as the nature and circumstance of each case may appear to require. It depends upon the public duty of the person who keeps the regard. Therefore, when the officer giving written consent has indicated to have perused the relevant records before giving the same, it cannot be held to be untrue, unless the person who raises the dispute about correctness of the recording places material on record to prove it. The sanctity attached to a statements of an official relating to his official duty will otherwise be of no consequence. In the case at hand, there was not even a whisper of suggestion that the relevant records were not produced. It was ; open to the accused to raise such a plea by questioning the witness who produced then written consent by suggesting that relevant records were not placed for consideration. It is true that the prosecution has to prove its case. But when there is no dispute regarding consideration of relevant aspects, the position is different. It was open to the accused to ask a question as to what were the records produced for his perusal. That was not done. In a case concerning adulteration of food, the primary document on perusal of which consent can be given is the Public Analyst’s report. If that has been considered, it cannot be said that relevant records were not placed for consideration, before consent was given.
8. Sub-section (1) of Section 20 specifies the persons who may institute a prosecution and the persons with whose consent a prosecution may be instituted. A prosecution for an offence under the Act, except under Section 14 or 14A, can be instituted either by the persons specified or by any one else with the written consent of the persons specified. The section makes the necessary consent of the prescribed authority, or person authorised, a condition precedent to the institution of the proceedings. It does not require the written consent to be in any particular form. All that this provision requires is that the consent should be written and should be of the prescribed authority or person authorised in that behalf. It implies that the consenting authority or person has applied its or his mind sufficiently to the facts of the case to make the consent real and not a pretence or an idle formality. The section, however, does not require the passing of a quasi-judicial order giving reasons for according consent. All that is required that the alleged offence and the offender should be known before the consent is given. Sub-section (1) speaks of written consent and not ‘sanction’ as is commonly talked of. There is a good deal of difference between ‘consent’ and ‘sanction’. The former implies concurrence while the latter confers an authority. The word ‘sanction’ has been used in a different context in Section 6 of the Prevention of Corruption Act, 1947, and carries an altogether different legal meaning. There is obvious difference between ‘written consent’ and ‘sanction’. The former implies mere concurrence or agreement wereas, the latter confers authority on the person in whose favour sanction is granted. Therefore, the considerations applicable in the case of ‘sanction’ would not be applicable to a case where ‘written consent’ is required. These aspects were highlighted in Mahammad Yukud Khan’s case ((1992) 5 OCR 54) (supra). Where there is material to show that all relevant papers were placed before the consenting authority and/or no dispute is raised in that regard, and he has given consent for institution for prosecution stating that all relevant papers were perused by him, it cannot be said that the consent was mindless. A similar view was expressed in Harikishan Narotamdas Kapedia v. Union Territory of Dadra and Nagar Haveli, 1987 FAJ 382 (Bom), and Kedar Prasad Gupta v. State 1986 FAJ 473 (Orissa). In Shahhzadey v. State, 1985 FAJ 418 : (1985 All LJ 1027), the order clearly mentioned that the documents regarding the case against the accused were perused by the authority granting consent. This together with the evidence of the Food Inspector was held to be sufficient to establish that the facts constituting the offence with which the accused was charged were placed before the sanctioning authority. The same was held to be valid. In Mehtab Ahmad v. State of U.P., 1980 (1) FAC 389 (All), and Ashrafi v. State of U.P., (1984) 1 FAC 144 : (1984 All LJ 434, it was held that where the sanctioning authority endorsed the word ‘seen’ on each paper which he considered before giving consent, it would be inferred that he had applied his mind to the facts of the case. Similar was the view expressed in Badhu v. State of U.P., (1983) 1 FAC 43 (All). In Jagdish Popil v. State & NDMC, (1981) 1 FAC 93 (Delhi); and Jai Singh v. State (1980) 1 FAC 198 :(1980 All LJ 394), it was held that simply because the order was typed one, it cannot be said that the consent was given blindly. In Shahhzadey’s (supra), it was held that though the consent was a printed form, the blanks in which were filled by typing the name and residence of the accused and the offence with which he was charged, the same coupled with the evidence of the Food Inspector established that the facts constituting the offence were placed before the authority according consent and that the same was valid. Where all the materials were placed before the authority for according consent, and the authority accords such consent by endorsing ‘consented’ on the .complaint, there should be a presumption that the authority has done so after applying its mind as was, and therefore, was satisfied that a prosecution was necessary, unless and until such presumption stands dislodged by any other or further materials or evidence on record. Similar view was taken by Calcutta High Court in Om Prakash Shaw v. Regional Raniganj Municipality (1989) 2 FAC 70 : (1989 Cri LJ 1793). In the case at hand, the authority has clearly indicated that the relevant records were perused.
9. The evidence of the Food Inspector (P.W. 1) is very relevant. He has categorically stated that on 25-11-1985 he placed the report of the Public Analyst with the other documents before the loci Health authority and C.D.M.O. who accorded consent after verification of the document. There is no even a suggestion by the accused that the statement was incorrect. An indicated above, report of the Public Analyst is the basic document in a case concerning allegation of adulteration of food. Further P.W. 1 has stated that after perusal of the documents, C.D.M.O. directed him to prepare the prosecution report, which he did. In this report reference to all relevant aspects have been made and the C.D.M.O. further stated about his consent in the document itself in addition to the written consent, marked Ext. 7.
10. Sanctity is attached on the official act and even entries made in the records so far as its evidentiary value is concerned as indicated in Section 35 of the Evidence Act, to which is reference has been made above. Therefore, it cannot be said that requisite conditions of Section 20 were not fulfilled.
11. Strong reliance is placed by the learned counsel for the petitioners on a decision of this Court in Gourahari Panda v. Sri Paiamananda Agarwalia 1989 (I) OLR 545 to plead non-application of mind. The decision is clearly inapplicable to the facts of the present case. In that case the Food Inspector had not stated specifically as to what documents were placed before the authority giving consent. As indicated above, in the case at hand the deficiency does not exist. 12. In addition, Section 114 of the Evidence Act is relevant. The Court may presume that judicial and official acts have been regularly performed. Though this is a rebuttal presumption, materials to the contrary have to be placed by the person who wants to rebut the presumption. 13. Coming to the question whether Rule 16 of the Rules has been violated, it is necessary to quote the said rule. That the provision is mandatory cannot be doubted. It has been so held by the apex Court, in State of Maharashtra v. Raj Karan, 1990 (3) OCR 568 : 1988 SCC (Cri) 47, which was followed by this Court in Nidhi Sahu v. State, (1990) 70 CLT 558. The rule has been amended by GSR 293(E), dated 23-3-1985 with effect from 24-9-1985. Rule 18 before amendment read as follows: "Memorandum and impression of seal to be sent separately.- A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post and delivered to him or to any person authorised by him." After amendment it reads as follows: "Memorandum and impression of seal to be sent separately.- A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day." The new rule makes the following changes: (i) The copy of the memorandum and specimen impression of the seal are now required to be sent in a sealed packet, which was not a requirement under the old rule. (ii) The mode of sending now is by 'any suitable means', whereas under the old rule it was by registered post of hand delivery. (iii) The time for sending the packet is now prescribed as 'immediately but not later than the succeeding working day', but there was no such prescription of time under the old rule.
Rule 18 requires the Food Inspector, (i)to send (a) a copy of the memorandum; and (b) specimen impression of the seal used to seal in a sealed packet to the Public Analyst; (ii) to send this sealed packet separately by any suitable means; (iii)to send the same immediately but not later than the succeeding working day. The expression ‘separately’ has to be understood on a conjoint reading of Rules 7, 17 and 18, Rule 7 postulates that Public Analyst on receipt of the packet containing the sample for analysis has to compare the seals on the container and the outer cover with specimen impression received separately and has to note the condition of the seals thereon. Reading Rules 17 and 19 together, it is clear that the word ‘separately’ used in Rule 18 has been intended to convey the sense that the copy of the memorandum and the specimen impression of the seal has to be sent independently of the articles that are required to be sent under Rule 17. In this connection, reference can be made to the observations made by the apex Court in Raj Karan’s case (supra), wherein it was observed that it is mandatory that the materials in Rules 17 and 18 are to be separately sent to the Public Analyst. The object of Rule 18 is to ensure the accuracy of the seal on the sample sent to the Public Analyst by comparison with the specimen impression of the seal sent by the Food Inspector separately. The report of the Public Analyst in terms of Rule 7(3) marked as Ext. 6 shows that he found the same intact and unbroken. The seal fixed on the container and on the outer cover of the sample tallied with the specimen impression of the sea) separately sent by the Food Inspector. A presumption can be drawn that requirements of Rule 18 have been complied with. The presumption under Section 114 of the Evidence Act in relation to regular performance of official acts applies to the report of a Public Analyst. However, this presumption is rebuttable. No effort was made by the accused to dislodge this presumption. There was even no suggestion to P.W. 1 who exhibited the report that there is any untruth in the recital by the Public Analyst. It is urged that the memorandum and the specimen impression of seal were to be sent separately. Strong reliance is placed on some observations of this Court in Nidhi Sahu’s case (supra), which was followed in certain other cases. The starting point for the view that the memorandum and the specimen impression of seal are to be sent separately appears to be Nidhi’s case (supra). In that case with reference to Raj Karan’s case (supra), it was held that they are to be sent separately. Unfortunately there is no indication in Raj Karan’s case (supra) to buttress such a view. On the contrary, on a plain reading of Rule 18, what is required is that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet (underlining for emphasis) separately to the Public Analyst. As indicated above, the word ‘separately’ refers to separate despatch of articles indicated in Rule 17, and Rule 18. The expression ‘in a sealed packet’ refers to both the copy of memorandum and the specimen impression of the seal. They are both required to be sent in a sealed packet. Plurality of packets is not provided for and obligated. My view in Nidhi’s case (supra) therefore does not appear to be correct, and was rendered without a correct reading of the provision. The other cases where my view was followed without any further discussion, can be of no assistance to the petitioner. The correct interpretation would be that the copy of memorandum and specimen impression of the seal used to seal the packet are to be sent in a sealed packet separately and not with the articles required to be sent under Rule 17. Since my view in Nidhi Sahu’s case (supra) was on an incorrect reading of the provision, I do not think it necessary to refer the matter to the Division Bench. The second contention also fails.
Since both the contentions raised have failed, the revision application is dismissed.