JUDGMENT
P.T. Raman Nayar, J.
1. This appeal brought by the complainant by special leave under Section 417 (3), Criminal Procedure Code, is against the acquittal of the three accused persons in the case of offences falling under Clauses (a) and (d) of Section 16(1) of the Prevention of Food Adulteration Act, 1934 and punishable under Clause (i) thereof.
2. The complaint was laid by a Food Inspector duly appointed under Section 9 of the Act, and all Food Inspectors have been generally authorised by the State Government to iastitute prosecutions for offences under the Act. (See the notifications, P. 15 and P. 19). Nevertheless preliminary objection has been taken on behalf of the accused on the score that the prosecution was not in accordance with Section 20(1) of the Act, that cognizance was there-fore barred, and that the trial by the learned magistrate was altogether without jurisdiction. It is said that Section 20(1) does not contemplate a general authorisation as in Ext. P. 19, but requires a special authorisation for each particular case, and the case reported in Food Inspector v. Arunachalam Chettiar, 1960 Ker LT 515; 1960-1 Ker LR 582: CAIR 1960 Kerala 356), is cited in support of this proposition.
3. Section 20(1) of the Act runs as follows: “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.”
What I might call the first Clause of the section requires that the prosecution shall be instituted by, or with the written consent of, the State Government or a local authority while, what I might call the second Clause, offers the alternative of the prosecution being instituted by, or with the written consent of, a person authorised in that behalf by the State Government or a local authority.
Now, the institution of a prosecution whether it be by the State Government or a local authority under the first clause, or by a duly authorised person under the second clause, can only be for a particular offence committed by a particular person. And it is fairly clear that the written consent, whether by the State Government or local authority, or by the authorised person, must be with reference to a particular offence committed by a particular person. There can be no general consent for the prosecution of all offenders. It seems to me equally clear that the authorisation under the second clause can be a general authorisation to institute, or give consent to prosecutions for offences under the Act.
What the second clause enables is a general delegation of the power given to the State Government and local authorities under the first clause, and, the words, “authorised in this behalf’ appearing in the second clause mean, authorised to institute, or give consent to, any prosecution for an offence under the Act, in other words, to exercise the power conferred on the State Government and local authorities by the first clause.
They cannot be restricted in their scope by relating them to the words, “an offence” appearing at the beginning of the section and saying that the authorisation must be in respect of each offence. For, if that were what the second clause’ meant then it might as well not have been enacted at all. The written consent permitted by the first clause would have served the purpose. The State Government or local authority could as well act under the first clause and give written consent in each case instead of considering each case and then authorising somebody else to institute, or to give consent to, a prosecution.
The special provision for authorisation contained in the second clause would become quite meaningless. It it obvious that the very object of the second clause is to enable the State Government and local authorities to appoint some other person I to exercise on their behalf the discretion vested in them by the first clause since, if the State Government or the local authorities had to consider each particular case and determine whether a prosecution should be launched or not, the section would become altogether unworkable having regard to the large number of offences that are committed. And that very object would be defeated by the interpretation sought to be placed on the clause.
If I may say so with Respect I am in complete agreement with the construction placed by a Full Bench of six Judges of the Allahabad High Court in Powell v. Municipal Board of Mussoerie, ILR, 22 All 123 on the similar language of Section 69 of the North-Western Province and Oudh Municipalities Act which provides that, “a court shall not take cognizance of an offence punishable under this Act, or the rules made under this Act, except on the complaint of the Municipal Board, or some person authorised by the board in this behalf.” It was held that the section confers upon Municipal Boards the power to delegate generally their authority to make a complaint in respect of municipal offences and that this general delegation included the exercise of discretion as to whether in any given case the complaint shall or shall not be made.
4. This question did not arise for decision in 1960 Ker LT 515: (AIR 1960 Kerala 356) the case relied upon by the defence, and was, in fact, not decided, although I am told that it is generally regarded — if that be so, in my opinion mistakenly regarded — as authority for the proposition that there can be no general delegation under what I have called the second clause of Section 20(1) of the Act. What happened in that case was that the executive officer of a local authority, the Commissioner of the Corporation of Trivandrum, authorised Food Inspectors to prosecute all offenders under the Prevention of Food Adulteration Act, and it was on this authority that the complaint in that particular case was made by a Food Inspector.
In the first place, there was no proof that the commissioner had been authorised by the State Government or the local authority concerned, namely, the Corporation, under what I have called the second clause of Section 20(1), and that, by itself, was sufficient to readier the prosecution bad. But there was the further defect that, even assuming that the Commissioner had been so authorised, all he could have done wag to prosecute, Or give consent to the prosecution, in each individual case.
He had no power to confer general authority on some other person to prosecute all offenders under the Act. Nor could he give general consent to such prosecutions. And that was precisely what was decided in the case. There is nothing in the decision which indicates that the authorisation contemplated by the second clause of Section 20(1) cannot be in the shape of a general delegation. In fact the following sentence in the judgment would indicate just the contrary:
“In the present case it has not been satisfactorily proved that the commissioner of the corporation had been authorised by the State Government or the local authority to issue the necessary sanction for prosecuting offenders under, the Prevention of Food Adulteration Act.”
5. Turning to the merits the 1st -accused in the case is a company called the Arthala Tea Estate Co. Ltd., and the 2nd accused is the manager of a tea estate called the Arthala Tea Estate owned by the 1st accused. The 3rd accused is a company acting as the clearing and forwarding agents of the 1st accused at Kozhikode. On 18-1-1958, PW. 1, a Food Inspector, inspected the go-down of the 3rd accused and found there 100 bags of what analysis of, the samples taken by Pw. 1 showed consisted entirely of tea waste unfit for human consumption.
The labels on the bags truthfully described their contents as waste tea. The bags in question had been sent to the 3rd accused by the 2nd accused acting for the 1st accused, and the prosecution case is that “the tea in question described as waste tea manufactured at the said estate (the Arthala Tea Estate) was sent by the 2nd accused to the 3rd accused for keeping in their (3rd accused’s) estate godown there for sale in the market by the 1st accused.”
6. The defence was that the waste tea was stored by the 3rd accused pending the instructions of the 1st accused regarding their sale to dye and caffeine manufacturers with whom the 1st accused was negotiating for the purpose, or, failing that, for destruction. It was never intended for sale to the local tea merchants as suggested by the prosecution. It is not however necessary to go into the merits of the defence, for, even accepting the prosecution evidence in entirety I do not think that any offence falling under Clause (a) or Clause (d) of Section 16(1) Of the Act is made out.
7. So far as Clause (a) is concerned it is the evidence of both of Pw. 1 and Pw. 3 (an Inspector of the Tea Board who accompanied Pw. 1 on his inspection and who may be regarded as an expert) that waste tea (or, tea waste, as it has been called by the Public Analyst) is altogether unfit! for human consumption and is not an article of food. It is never sold or consumed as tea, but is largely used for adulterating tea which no doubt is an article of food. The moment it is conceded that waste tea is not an article of food, Clause (a) of Section 16 (I) becomes inapplicable since that Clause relates only to the manufacture, storage, sale or distribution of an article of food.
The question then is whether Clause (d) of Section 16(1) ‘s attracted. It is obviously not attracted so far as the 3rd accused is concerned since the 3rd accused is not a manufacturer of any article of food and the clause applies only to a manufacturer of an article of food. So far as I can see storage of an adulterant by a person who is not a manufacturer of food is no offence even if the storage be for purposes of sale.
8. Then we come to the question whether Clause (d) is attracted so far as the 1st or 2nd accused are concerned both of whom may be described as manufacturers of food. That will turn upon whether either of them can be said to have been in possession of the waste tea which, as we have seen, is a material widely employed for the purpose of adulterating tea. (The waste tea, it may be noted, was not in any premises occupied by either the 1st or 2nd accused).
Now, according to the very case of the prosecution, all that the 2nd accused did was to send the tea to the 3rd accused to be stored by the 3rd accused on behalf of the 1st accused. The waste tea belonged to the 1st accused, and the 3rd accused was storing it awaiting the instructions of the 1st accused regarding its disposal. Therefore, once the tea waste had left his hands, the 2nd accused could not be said to have been in possession in any sense of the word.
9. Nor do I think can it be said that the 1st accused was in possession although the 1st accused was the owner of the tea and the 3rd accused was storing it only as the 1st accused’s agent. The 3rd accused was in the position of a bailee as defined in Section 148 of the Indian Contract Act, and was not a mere servant of the 1st accused and, although it was holding the waste tea on behalf of the 1st accused and was bound by the terms of its agency to abide by the 1st accused’s instructions, I do not think, while the waste tea was in the 3rd accused’s godown, the 1st accused had the physical capacity to deal with it as it liked which is a necessary element of possession as it is ordinarily understood in law. Section 149 of the Indian Contract Act shows that a bailee is in possession and not merely in custody of the goods concerned.
10. It seems to me, moreover, that the words “which may be employed for the purpose of adulteration” appearing in section 16(1) (d) are not used in the sense, “is capable of being employed for the purpose of adulteration”. For, if that were so, every tea manufacturer would be guilty of an offence since, waste tea being an unavoidable bye-product of the manufacture, he cannot but be in possession of waste tea unless he provides for its instantaneous destruction.
There might be other instances where a bye-product of the manufacture of an article of food is a material which can be used as an adulterant. And surely it cannot be the intention of the Act to inhibit the manufacture of such articles of food by making the possession of the bye-product an offence. I think the words in question are really used in the sense that the material is, having regard to the circumstances of each particular case, likely to be used by the manufacturer concerned for the purpose of adulteration.
That the mischief sought to be prevented is the possession of an adulterant for use as such by the possessor seems clear from the fact that it is only possession by a manufacturer of an article of food that is made punishable. Some inkling as to the content of Section 16(1) (d) is, to be found in Section 10(6) which is the provision ‘made by the Act for the detection of offences under the section. A Food Inspector is given the power to seize and send for analysis, a material apparently of a kind which may be employed for purposes of adulteration, found in the possession of a manufacturer of an article of food, only if the manufacturer is unable to account for the possession to the satisfaction of the Food Inspector, in other words, only if the manufacturer is unable to satisfy the Food Inspector that he was not keeping the material for use as an adulterant.
It would appear that what is punishable under Section 16(1) (d) is possession, by a manufacturer of food of an adulterant in circumstances which lead to the inference that he is keeping it for being used by him for purpose of adulteration. Surely, by sending the waste tea from the estate where tea is manufactured, and where the waste could easily have been used for purposes of adulteration, to the 3rd accused at Kozhikode, the 1st and 2nd accused made it clear that it was not their purpose to use the waste tea for adulterating tea made by them. Neither is that the case of the prosecution.
11. I dismiss the appeal.
