As regards the submission of the learned advocate for the Petitioner on the aspect of not having valid consent as mandatorily required under Section 20 of the Act to prosecute the Petitioner for misbranding is concerned, it is pertinent to note that this contention was not raised either before the trial court or before the revisional court but for the first time it was raised before this Court and, therefore, that ground would not be available to the Petitioner. Still, however, it may be stated that on the said issue of consent, law has been laid down by the Hon'ble Apex Court in the case of Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy MANU/SC/0436/2000 : AIR 2000 SC 2577 : AIR 2000 SCW 2667 in paragraphs 24 and 28 as under:
24. We find the reasoning of the Division Bench of the Gujarat High Court in State of Gujarat v. Ambalal Maganlal 1978 Cri LJ 1036 (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 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 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.
28. 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 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 The trial has to proceed with the Certificate on record which superseded the report of the Public Analyst.
It has been specifically held by the Hon'ble Supreme Court in the aforesaid reported case that when report of a Public Analyst was superseded by a certificate of Director of Central Food Laboratory, it is not necessary to obtain a fresh consent to institute prosecution and recommence the proceedings under the Act. It was also held 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 sufficient to annual the sanction already obtained with which the prosecution was already instituted.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Criminal Misc. Application No. 8392 of 2010
Decided On: 24.03.2011
Appellants: Nestle India Limited thro' Rajendra Rajput (Manager Sales)
Vs.
Respondent: State of Gujarat and Anr.
Vs.
Respondent: State of Gujarat and Anr.
Hon'ble Judges/Coram:
M.B. Shah, J.
M.B. Shah, J.
