Judgment

KHANNA. J.:- Chittaranjan Das appellant was convicted by Magistrate First Class Cuttack under S. 16 (1) (a) of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) (here-in-after referred to as the Act) and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500, or in default to undergo rigorous imprisonment for a further period of six weeks. Appeal filed by the appellant was dismissed by the Additional Sessions Judge Cuttack. The appellant then went up in revision to the High Court but his revision petition too was dismissed by the Orissa High Court. The appellant thereafter filed the present appeal by special leave.

2. The case for the prosecution is that on July 17. 1965 Food Inspector Behera went to the stall of the accused in the old Secretariat Compound Cuttack and found potato chops being fried by an employee of the accused in groundnut oil in a frying pan. The Food Inspector disclosed his identity to the accused and after giving the requisite notice, he purchased 375 gms of the groundnut oil in which the potato chops were being fried. After the oil was cooled, the Food Inspector divided it into three equal parts and poured each part of the oil in a clean bottle. The bottles were then sealed. One of the bottles was handed over to the accused. Another bottle was sent to a public analyst. The public analyst found on analysis the groundnut oil to be adulterated as it did not conform to the prescribed standard. The Superintendent of Police, Vigilance thereafter gave written consent for the prosecution of the accused. The accused was after that sent up for trial.

3. It may be stated that the date on which the sample of groundnut oil was purchased by the Food Inspector from the accused has been mentioned in the judgments of the trial magistrate as well as those of the Additional Sessions Judge and the High Court to be March 14, 1964. This date was wrong because on reference to the record of the trial court we find that the date on which the sample of the oil was purchased by the Food Inspector from the accused was July 17, 1965. This mistake in any event does not affect the merits of the case.

4. The plea of the accused at the trial was that the sample of the oil had been taken not from the frying pan but from a tin wherein he had kept burnt oil for the purpose of using it as fuel. The oil, according to the accused, was stored neither for sale nor for being used for frying food articles. This plea of the accused was found by the trial court as well as by the learned Additional Sessions Judge to be false. In the High Court it was not disputed on behalf of the accused that the groundnut oil purchased by the Food Inspector lied been taken out of the frying pan and that potato chops were being prepared with that oil. One of the contentions which was raised on behalf of the accused before the High Court was that the sanction or consent given by the Superintendent of Police, Vigilance for the prosecution of the accused was not in conformity with Section 20 of the Act as the authority contemplated by that section must be in respect of each individual case and a general authority given to the Superintendent of Police to sanction prosecution was not legal. The High Court rejected this contention as also some other contentions which had been raised on behalf of the accused.

5. In appeal before us, Mr. Sikri has at the outset submitted that there was non-compliance with the provisions of Section 10 (7) of the Act as the Food Inspector did not call one or more persons to be present at the time he purchased the sample of groundnut oil from the accused. In this respect we find that the judgment of the High Court shows that no such argument was advanced before the High Court. This argument involves questions of fact and as the accused appellant failed to agitate it before the High Court we have not permitted the appellant to agitate it before us in this Court.

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