JUDGMENT
D.H. Shukla, J.
1. The Agricultural Inspector, Padra, is the complainant in Criminal Case No. 1679 of 1979, which was heard and disposed of by the learned Judicial Magistrate, First Class, Karjan, on 27-8-1980. The learned Magistrate acquitted the accused No. 1, namely, R.N. Vora, Director, S.M.P. Pvt. Ltd., Bombay, accused No. 2, S.M.P. Pvt. Limited., Bombay and the accused No. 3, Regional Manager, S.M.P. Pvt. Ltd., Ahmedabad, from the charge under Sections 3(k), 17(1)(a) and 18(1)(c) of the Insecticides Act, 1968. Having been aggrieved by and dissatisfied with the said acquittal judgment, the present appeal is preferred by the State of Gujarat.
2. The complaint filed by the complainant, Mahendrakumar N. Patel, the Agricultural Inspector, Padra, Baroda, is at Exh. 1 and it discloses the following facts:
3. The complainant was working as an Agricultural Inspector, Baroda, and was appointed as such by the State of Gujarat. The complainant holds the requisite qualifications for his post which are required under the Insecticides Act, 1968 (hereinafter referred to as "the Act").
4. Under the Act, the complainant is empowered to inspect the premises and to take samples of the insecticide materials in order to verify whether they are manufactured as per the requirements under the Act. Under the Act, the rules are framed, which rules determine the standards for the manufacture of insecticide and those standards are required to be complied with. If these standards are not complied with, the manufacturer or the vendor, as the case may be, is guilty of an offence under the Act.
5. On 25-5-1978, the complainant visited a shop run in the name and style of M/s. Jayant Fertilizers, and during his visit he asked for the supply of D.D.T. 10% dust, specifically saying that he wanted the sample for the purpose of inspection. A Panchnama was also prepared, while the sample was taken. Thereafter, the necessary procedure was complied with, and in particular the sample was divided into three equal parts, and the two parts thereof were retained by the complainant and one was handed over to Jayant Fertilizers, Karjan. On being asked to state the price, the complainant was told by Jayant Fertilizers that they did not want the price for the sample supplied to the complainant.
6. The sample was sent for medical analysis at Junagadh, and the report from the Laboratory at Junagadh disclosed that the sample of D.D.T. which was obtained from Jayant Fertilizers was not upto the mark and that it was not manufactured according to the required standards. Hence, the complaint against the aforesaid three accused. .... .... .... .... .... ....
9. Mr. C.V. Jani, the learned Advocate for the respondents, referred me to the question as to whether the complainant has proved that he was properly appointed by the State. The learned Magistrate has also referred to this question in his judgment observing that the proper appointment of the complainant-Inspector remains doubtful inasmuch as the prosecution has failed to produce the Gazette wherein his appointment is published. The learned Magistrate has observed that under Section 21 of the Act, the Inspector was not authorised to carry on the activities ascribed to an Inspector.
10. In this connection, it is necessary to refer to Section 20 of the Act, which relates to Insecticide Inspectors. The relevant part of Section 20 of the Act runs as under:
20. Insecticide Inspectors - (1) The Central Government or a State Government, may, by notification in the Official Gazette, appoint persons in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to be Insecticide Inspectors for such area as may be specified in the notification:
Provided that any person who does not possess the required qualifications may be so appointed only for the purposes of Clause (a) and Clause (d) of Sub-section (1) of Section 21.
xxx xxx xxx.
(Emphasis supplied)
The complainant has, therefore, to prove (1) that he has been appointed as such by a notification in the Official Gazette, (2) that he possesses such technical and other qualifications as are prescribed for the Insecticide Inspectors, and (3) that he has been appointed as an Insecticide Inspector for an area which covers all the three present accused. If we peruse the evidence of the complainant, we do not find the necessary evidence to reach the conclusion that the complainant was properly appointed by the State, that he did possess the necessary qualifications and that he was appointed for an area which covered all the three respondents-accused.
11. It is necessary for me to enter into the question of the proper appointment of the complainant, because he has carried out his duties at Karjan, a Taluka of Baroda, whereas he has not prosecuted M/s. Jayant Fertilizers, whose shop he visited and wherefrom he took the sample. But he has prosecuted the manufacturers, namely, S.M.P. Pvt. Ltd., Bombay, its Director Shri R.N. Vora, who also resides at Bombay, and the Manager, S.M.P. Pvt. Ltd., who is at Ahmedabad. Again, the appointment of the complainant is challenged in his cross-examination, inasmuch as in reply to a question put to him in cross-examination he has replied that it is true that he has not produced the authorisation of his appointment as an Inspector under the Act. Therefore, his appointment is questioned, and once it is questioned, the question about his appointment is required to be decided. His appointment will have to be examined from different points of view. In the first place, whether the complainant was properly appointed under the Act, and whether he had jurisdiction to proceed against the two accused who were at Bombay, and the one accused who was at Ahmedabad keeping in mind the fact that the shop which he inspected was at Karjan, in Baroda District. In this connection, Mr. C.V. Jani, invited my attention to the case of Purshonam Harjivan Shah and Anr. v. Emperor AIR 1946 Bombay
492. In that case, the accused Nos. 1 and 2 filed a Revision Application against their conviction and sentence under Section 13(1) read with Section 6 of the Hoarding and Profiteering Prevention Ordinance. The case of the prosecution was that accused No. 1 was the proprietor, accused No. 2 was a salesman of P.H. Shah, Silk Merchants, in Bombay, and that on 1st September 1944, accused No. 2 on behalf of accused No. 1 sold nine yards of artificial silk dress fabric at a price of Rs. 11 per yard when the landed cost as certified by the Assistant Controller General was Rs. 4-8-0 per yard. It was. inter alia, contended that the landed costs certificate was not duly proved because Mr. Kedarnath, the Assistant Controller General, who had given the certificate had not been examined to prove that the articles in respect of which he gave the certificate were the very articles which were the subject-matter of the offence. The sanction required under Section 14 was granted by the Deputy Controller General of the Civil Supplies in Bombay. It does not seem to have been contended in the lower Court that the sanction was invalid, but it was urged before the Bombay High Court that it was illegal on the ground that the officer who granted the sanction was not lawfully empowered to grant it, as the Notification of the Government of India under which he purported to grant the sanction was ultra vires, inasmuch as it was not issued according to the provisions of Section 14 of the Ordinance. It was contended on behalf of the prosecution that the District Magistrate is a creature of the Criminal Procedure Code and apart from that Code there is no test to find out whether any person is an officer not below the rank of a District Magistrate, and that when the Central Government issued the notification it must be taken that it had the provisions of Section 14 of the Ordinance in mind, and it must, therefore, be presumed under Section 114, Illustration (e) of the Evidence Act, that judicial and official acts have been regularly performed which means, that the officers mentioned in the notification must be deemed to have been given a rank not below that of a District Magistrate. It was further contended that the burden of showing that this presumption cannot apply to the case is on the accused, and as that burden cannot be discharged, the presumption is practically conclusive. Negativing this argument, the Division Bench of the Bombay High Court observed:
In our opinion, it is not correct to say that such a presumption applies in the present case. The presumption under Section 114, illust. (e), is that of the regularity of the official acts, whether judicial or executive and not that of the acts themselves being done. If for instance, a notification is issued under the powers given by law, there is a presumption mat it was regularly published and promulgated in the manner in which it was required to be done. But there is no presumption that it was issued according to the terms of the section which empowers it. In a very recent decision in 47 Bom. LR 431, it has been held by this Court that:
The meaning of Section 114, illust. (e) is that if an official act is proved to have been done, it will be presumed to have been regularly done. It does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case.
The Division Bench further observed thai in regard to the case before them, the act required to be proved is the empowering of an officer not below the rank of a District Magistrate to grant sanction. The Division Bench further observed that as the prosecution did not prove that the officers mentioned in the notification hold a rank not below that of a District Magistrate, the notification issued by the Government was invalid and ultra vires.
12. I have cited the judgment at length so as to appreciate the reasoning therein in regard to the application of Illustration (e) of Section 114 of the Evidence Act. The question before me is whether the complainant was properly appointed and whether he had been given the jurisdiction so as to cover the present accused. Section 114 of the Evidence Act prescribes that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) to Section 114 of the Evidence Act states that the Court may presume that judicial and official acts have been regularly performed. Once it is proved that the officer was lawfully invested with the power to carry out his duties there may arise a presumption so far as the question of the manner of performing those duties is concerned. There is no justification, however, in presuming the very investment of those powers in the absence of evidence altogether, and particularly when such an appointment is categorically challenged in the cross-examination of the complainant. I, therefore, accept the submission made before me by Mr. C.V. Jani that the learned Magistrate was justified in acquitting the accused on this ground also, namely, that the prosecution failed to prove the appointment of the complainant.
13. The acquittal judgment is also required to be confirmed as the complainant failed to carry out the procedure required to be followed by Insecticide Inspectors under Section 22 of the Act. Sub-sections (3) and (4) of Section 22 of the Act run as under:
(3) Where an Insecticide Inspector takes any sample of an insecticide, he shall tender the fair price thereof and may require a written acknowledgement therefor.
(4) Where the price tendered under Sub-section (3) is refused, or where the Insecticide Inspector seizes the stock of any insecticide under Clause (d) of Sub-section (1) of Section 21, he shall tender a receipt therefor in the prescribed form.
Now, if we consider the evidence on record, the complainant has stated in his deposition that when he endeavoured to give the price of the sample taken by him to witness No. 2 of the prosecution, Jashvantlal Kantilal Shah, he refused to take the price and since he refused to take the price, he had made a note to that effect in the Panchnama which was prepared in the presence of Jashvantlal. This averment has not been denied by Jashvantlal. On the contrary, he has admitted that the averment made by the complainant in his deposition. Still, however, the question which arises is whether making a note in the Panchnama about the attempt to give the price tantamounts to passing of a receipt to the person from whom the sample is taken under Sub-section (4) of Section 22 of the Act. It is pertinent to note that tendering of a receipt is mandatory under Sub-section (4) of Section 22 of the Act. It is necessary to appreciate that the purpose of the provisions under Sub-sections (3) and (4) of Section 22 of the Act is that the Insecticide Inspector who takes a sample must pay a fair price for the article that he obtained from the vendor. If the fair price is tendered and refused, the Insecticide Inspector is required to pass a receipt for the sample which he has taken from the vendor, so that at any point of time it can be ascertained what was the sample that was obtained, what was its quality and what was its quantity. If this evidence is available, the fair price can be ascertained at any point of time. Now, this requirement of this section is not complied with, if the Inspector who takes sample makes only a note in the Panchnama that he tendered the price and the vendor refused. The said Panchnama is at Ex. 30. A persual of it clearly suggests that it does not contain anything to ascertain the quantity of sample, which was obtained from the vendor. Therefore, a mere note that the price was attempted to be paid, is no substitute for passing a receipt, as required under Sub-section (4) of Section 22 of the Act. It must, therefore, be said that the complainant has not properly followed the procedure prescribed under Section 22 of the Act.
14. It is also contended that the charge as levelled under the complaint (Exh. 6) is vague and therefore also the prosecution is bad. This argument of Mr. Jani is also required to be accepted. The charge is that the accused are guilty of violating Sections 3(k), 17(1)(a) and 18(1)(c) of the Act. Section 17(1)(a) of the Act is to the effect that no person shall, himself or by any person on his behalf, import, or manufacture any misbranded insecticides. Section 18(1)(c) of the Act is to the effect that no person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, transport, use or cause to be used by any worker any insecticide in contravention of any other provision of the Act or of any rule, made thereunder. Section 3(k) gives a definition of "misbranded". Section 3(k) of the Act runs as under:
3(k) "misbranded" - an insecticide shall be deemed to be misbranded-
(i) if its label contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular or if its package is otherwise deceptive in respect of its contents; or
(ii) if it is animitation of, or is sold under the name of, another insecticide; or
(iii) if its label does not contain a warning or caution which may be necessary and sufficient, if complied with to prevent risk to human beings or animals; or
(iv) if any word, statement or other information required by or under this Act to appear on the label is not displayed thereon in such conspicuous manner as the other words, statements, designs or graphic matter have been displayed on the label and in such terms as to render it likely to be read and understood by any ordinary individual under customary conditions of purchase and use; or
(v) if it is not packed or labelled as required by or under this Act; or
(vi) if it is not registered in the manner required by or under this Act; or
(vii) if the label contains any reference to registration other than the registration number, or
(viii) if the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration.
Mr. S.T. Mehta, the learned Additional Public Prosecutor, conceded that the first seven provisions had no application in the present case. He, however, relied on Clause (viii), which as we have seen above is to the effect if the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration, then it becomes a misbranded insecticide. It is not specified at all in the complaint as to how was the article alleged to have been manufactured by the accused fell (sic failed) in Clause (viii) of the definition. Mr. Mehta relied on the analysis certificate which was issued by the Laboratory, which is at Exh. 27. At Col. 7 which relates to result of test or analysis, states: "active ingredient content per cent by weight 8.30% as per method approved by Central Insecticide Baroda." In the first place, one does not know that Exh. 27 is to be read as part of the complaint, and in the second place even if the analysis report is read as part of the complaint, the charge of the article having been misbranded cannot be said to have been brought home, when he read the charge of misbranded with the definition of "misbranded" mentioned in Clause (viii) of Section 3(k) of the Act. I am, therefore, of the view that the charge is vague and on that ground also the acquittal is required to be confirmed.
15. Section 31 of the Act relates to cognizance and trial of offences. It is prescribed under Section 31 that no prosecution for an offence under the Act shall be instituted except by, or with the written consent of the State Government or a person authorized in this behalf by the State Government. Written sanction of the State Government is, therefore, a condition precedent for launching the prosecution under the Act. No such sanction is forthcoming on the record of the case. I need not discuss at length the judgment in the case of Purshottam Harjivan Shah and Anr. v. Emperor (supra), but I may only point out to say that its ratio will apply in regard to the proof of the requisite sanction under Section 31 of the Act. The prosecution must prove that it was launched after the proper sanction was received and that the authority which granted the sanction was duly empowered to do so. No evidence is produced to prove these conditions.
16. If we refer to the sanction, it discloses a complete nonapplication of mind. We find the sanction is given to prosecute S.M.P. Pvt. Ltd., Bombay, and there is no sanction as regards either accused No. 1 Shri R.N. Vora, Director of S.M.P. Pvt. Ltd., or the Manager S.M.P. Pvt. Ltd., Ahmedabad. Again, the learned Magistrate has rightly observed that probably the original sanction is given to prosecute Jayant Fertilizers, Karjan, but the sanction is given to prosecute S.M.P. Pvt. Ltd., and Jayant Fertilizers is described only as a witness. One fails to understand how was this necessary. It is also pertinent to observe that in the earlier part of the sanction where the signature of the Director appears, the date is blank. It was under these circumstances put to the complainant in his cross-examination that there is an interpolation in the sanction so far as is concerned. I also fail to understand the exact meaning of the following stated by the complainant in his cross-examination:
(Editor: The text of the vernacular matter has not been reproduced.
required.)
It appears that the name of the accused was to be inserted later and the sanction was given in a blank form. My apprehension is fortified by perusal of the original (Exh. 18) which is in a cyclostyled form and the name is interpolated as pointed out above. For instance the names of accused Nos. 1 and 3 are not to be found at all. Secondly, the word 'Sakshi', Jayant Fertilizers, Karjan, is absolutely redundant and that the order of the Director in the upper portion is without date. It is also necessary to point out that the authority of the Director to give sanction is also not produced. From diverse angles, therefore, the sanction is also defective.
In view of the aforestated deficiencies in the prosecution case, I do not find any merit in this acquittal appeal, which stands dismissed.