N Criminal Appeal No 400 of 1986 From the Judgment and order dated 1221986 of the Punjab and Haryana High Court in Crl
No 202 M86
Dr YS Chitale Ravinder Narain DN Misra and PK Ram for the Appellants
HK Puri and RS Sodhi for the Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave directed against the judgment and order of the Punjab  Haryana High Court dated February 12 1986 raises a question of some importance
The question is whether the Food Inspector Faridkot was competent to lodge a complaint against the appellants under section 201 of the Act for commission of an offence punishable under section 161 a ii of the for short the Act  by virtue of the delegation of powers by the Food Health Authority Punjab under notification dated September 7 1972 purported to have been issued by him under r 3 of the Prevention of Food Adulteration Punjab Rules 1958
965 Put very shortly the essential facts are these
Appellant No 2 Messrs Food Specialities Limited is a company incorporated under the engaged in the business of manufacturing and selling various well known articles of food including New Maggi 2 minute noodles with sweet sour taste maker while appellant No 1 AK Roy is the Manager Quality Controller of the Company
On December 14 1984 at about 330 pm the Food Inspector Faridkot purchased a sample of New Maggi Noodles from the shop of a general merchant for purposes of analysis The Public Analyst by his report dated January 17 1985 opined that the said article of food contains carmosine and sunset yellow acid coal tar dye instead of caramel as described on the label and was therefore both adulterated as well as misbranded
He further opined that the label of the article of food did not comply with the requirements of rr
24 and 32 of the Prevention of Food Adulteration Rules 1955 regarding the addition of extraneous colouring matter
On February 1 1985 the Food Inspector Faridkot filed a complaint against the general merchant as well as the appellants for having committed an offence punishable under section 161 a ii of the Act for alleged violation of rr 24 28 29 and 32 of the Prevention of Food Adulteration Rules 1955 by virtue of the delegation of powers by the Food Health Authority under notification dated October 10 1968 purported to have been issued by him under r 3 of the Prevention of Food Adulteration Punjab Rules 1958
During the course of the proceedings the appellants raised an objection inter alia that r 3 of the Rules framed by the State Government in purported exercise of powers under section 242 read with section 201 of the Act was ultra vires the State Government and alternatively by virtue of the authority derived under r 3 of the said Rules the Food Health Authority alone had the power to initiate prosecutions for an offence under the Act and therefore he could not legally by the impugned notification sub delegate his powers to launch the prosecutions to the Food Inspector
The learned Sub Divisional Judicial Magistrate by his order dated December 4 1985 rejected the preliminary objection raised as to the power of the Food Inspector to launch the prosecution under section 201 read with section 9 of the Act on the ground that the State Government having delegated its powers to the Food Health Authority by framing r3 under section 242e of the Act the Food Health Authority was competent to issue the impugned notification and therefore the complaint was validly lodged
The learned Sub Divisional Judicial Magistrate further proceeded to frame charges against the appellants for having committed an offence punishable 966 under section 161 a ii of the Act
Thereafter the appellants moved the High Court by petition under section 482 of the Code of Criminal Procedure 1973 for quashing the impugned order passed by the learned Sub Divisional Judicial Magistrate taking cognizance of the offence and the consequent framing of the charge by him
High Court did not go into the question and dismissed the petition in limine It is argued on behalf of the appellants that as a matter of construction the first part of section 201 of the Act makes it clear that a prosecution for offences under the Act not being an offence under section 14 or section 14A can be instituted only by one of the following authorities namely i the Central Government or the State Government or ii with the written consent of the Central Government or the State Government or iii a person authorised in this behalf by a general or special order by the Central Government or the State Government or iv with the written consent of a person so authorised
It is urged that the opening words of section 201 No prosecution for an offence under this Act  shall be instituted except by  being of a negative character the requirements of the section are imperative and that a discretionary power must in general by exercised by the authority to which it has been committed
Emphasis is placed on the words in this behalf  in the second part of section 201 of the Act for the submission that the delegation of powers to launch a prosecution by the Central Government or the State Government by general or special order must be for a specific purpose in that behalf viz to authorise the institution of prosecutions under the Act
It was accordingly submitted that r 3 of the Punjab Rules enables the Food Health Authority to sub delegate his power to authorise the launching of a prosecution for an offence under the Act  to the Food Inspector was ultra vires the State Government and could not be sustained on the terms of section 242 e ie the general power of the State Government under section 242 e of delegation of its powers and functions under the Act
In reply the learned counsel for the respondents contends that r3 is in the nature of a general order in terms of section 201 of the Act and therefore the State Government has not only delegated its powers to launch a prosecution for an offence under the Act  under section 201 to the Food Health Authority ie the Director of Health Services Punjab but also under the said rule provision has been made for further sub delegation of his power to authorise the launching of prosecutions under s 
201 to the Food Inspectors
In order to appreciate the contentions it is necessary to refer to 967 the relevant provisions
Sub section
1 of section 20 of the Act which is material for our purposes provides as follows 201
Cognizance and trial of offences No prosecution for an offence under this Act not being an offence under section 14 or section 14A shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order by the Central Government or the State Government
 Sub section
1 of section 24 of the Act empowers the State Government to frame rules after consultation with the Committee and subject to the condition of previous publication for the purpose of giving effect to the provisions of the Act not falling within the purview of section 23
Sub section
2 thereof provides that in particular and without prejudice to the generality of the foregoing power the State Government may make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of section 23
section 242 e of the Act provides 242
In particular and without prejudice to the generality of the foregoing power such rules may e provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food Health Authority to subordinate authorities or to local authorities
 In exercise of the powers under section 242 e of the Act the Punjab Government framed the Prevention of Food Adulteration Punjab Rules 1958
R 3 of the Rules reads as under Rule 3 Power of Food Health Authority The State Government may by an order in writing delegate its powers to appoint Food Inspectors to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified in the order of the Food Health Authority of the State of Punjab In accordance with r 3 the State Government issued a notification dated October 10 1968 purporting to delegate its powers and functions conferred by section 201 of the Act viz to initiate prosecutions 968 for an offence under the Act to the Food Health Authority to the effect In pursuance of the provisions of rule 3 of the Prevention of Food Adulteration Punjab Rules 1958 the President of India is pleased to delegate to the Food Health Authority its powers of appointment of Food Inspectors and to authorise institution of prosecution for an offence under the 
 In terms of the aforesaid notification the Food Health Authority issued a notification dated September 7 1972 authorising the Food Inspector Faridkot to launch prosecution under section 201 for an offence under the Act in these terms No IV I Pb 727518 2i In exercise of the powers conferred by Section 9 of the Act No 37 of 1954 read with Rule 8 of the Prevention of Food Adulteration Rules 1955 and the powers delegated vide Punjab Government Notification No 5575 HBL 6829659 dated 10th October 1968 Shri Jagrup Singh is hereby appointed as Government Food Inspector for all the local areas in the District in which the official is posted as Government Food Inspector
In exercise of powers conferred by Section 20 of the Act No 37 of 1954 read with Punjab Government Notification No5575 2HBI 16829659 dated 10th October 1968 the Director Health Services Punjab also authorises the above mentioned Food Inspector to institute prosecution against the persons committing offences under the said Act within the limits of local areas
 In this appeal two main questions arise namely i Whether r 3 of the Prevention of Food Adulteration Punjab Rules 1958 framed under section 242 e of the Act being contrary to the legislative mandate contained in section 201 of the Act was ultra vires the State Government and therefore the impugned notification issued by the State Government dated October 10 1968 purporting to delegate its powers under section 201 to the Food Health Authority viz to authorise the institution 969 of prosecutions for an offence under the Act was liable to be struck down
Consequently whether the impugned notification dated September 7 1972 issued by the Food Health Authority authorising the Food Inspector Faridkot to institute such prosecutions was illegal bad in law and void ab initio
ii Even if r 3 of the said Rules could be regarded as a general order issued by the State Government in terms r of section 201 of the Act authorising the Food Health Authority to launch prosecutions for an offence under the Act by the framing of a rule under section 242 e of the Act whether the Food Health Authority by the impugned notification dated September 7 1972 could in his turn sub delegate his powers to the Food Inspector Faridkot
The ultimate question is whether the terms of section 201 of the Act do not postulate further delegation by the person authorised to institute prosecutions for an offence under the Act he can only give his written consent to such prosecution
It is common ground that the prosecution in the instant case has not been launched either by or with the written consent of the Central Government or the State Government
It therefore becomes necessary to ascertain whether the Food Inspector Faridkot was duly authorised to launch a prosecution
The Food Inspector had been conferred powers of the State Government under section 20l of the Act viz to initiate prosecutions for an offence under the Act by the Food Health Authority ie the Director of Health Services
A mere perusal of the impugned notification dated September 71972 makes it manifest that it was the Director of Health Services and not the State Government who had authorised the Food Inspector to launch prosecutions for an offence under the Act
It is therefore clear that the Food Inspector is not a person who has been authorised by any general or special order issued by the Central Government or the State Government
There would be no problem if the State Government were to issue a notification under section 20l of the Act conferring authority on the Food Inspector Faridkot under section 20l to launch prosecutions for an offence under the Act as is the practice in the other States
A careful analysis of the language of section 20l of the Act clearly shows that it inhibits institution of prosecutions for an offence under the Act except on fulfillment of one or the other or the two conditions
Either the prosecutions must be instituted by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government or the prosecutions 970 should be instituted with the written consent of any of the four specified categories of authorities or persons
If either of these two conditions is satisfied there would be sufficient authority for the institution of such a prosecution for an offence under the Act
The provision contained in section 201 of the Act does not contemplate the institution of a prosecution by any person other than those designated
The terms of section 20 1 do not envisage further delegation of powers by the person authorised except that such prosecution may be instituted with the written consent of the Central Government or the State Government or the person authorised
The use of the negative words in section 201 No prosecution for an offence under this Act  shall be instituted except by or with the written consent of plainly make the requirements of the section imperative
That conclusion of ours must necessarily follow from the well known rule of construction of inference to be drawn from the negative language used in a statute stated by Craies on Statute Law 6th edn p 263 in his own terse language If the requirements of a statute which prescribe the manner in which something is to be done are expressed in negative language that is to say if the statute enacts that it shall be done in such a manner and in no other manner it has been laid down that those requirements are in all cases absolute and that neglect to attend to them will invalidate the whole proceeding
 Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all
Other modes of performance are necessarily forbidden
The intention of the Legislature in enacting section 201 was to confer a power on the authorities specified therein which power had to be exercised in the manner provided and not otherwise
The first part of section 201 of the Act lays down the manner of launching prosecutions for an offence under the Act not being an offence under section 14 or section 14A The second part provides for delegation of powers by the Central Government or the State Government
It enables that prosecutions for an offence under the Act can also be instituted with the written consent of the Central Government or the State Government or by a person authorised in that behalf by a general or special order issued by the Central Government or the State 3 Government
The use of the words in this behalf  in section 201 of the Act shows that the delegation of such power by the Central Government or 971 the State Government by general or special order must be for a specific purpose to authorise a designated person to institute such prosecutions on their behalf
The terms of section 20 1 of the Act do not postulate further delegation by the person so authorised he can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in the public interest
In the case of statutory powers the important question is whether on a true construction of the Act it is intended that a power conferred upon A may be exercised on A s authority by B The maxim delegatus non potest delegare merely indicates that this is not normally allowable but the Legislature can always provide for sub delegation of powers
The provision contained in sections 242 e enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation
That apart a rule framed under section 242 e can only provide for delegation of minor administrative functions eg appointment of Food Inspectors Food Health Authority etc
In the case of important executive functions like the one contained in section 201 of the Act to authorise launching of prosecutions for an offence under the Act which is in the nature of a safeguard the Courts may be disposed to construe general powers of delegation restrictively
Keeping in view the language of section 201 and 242 e of the Act r 3 of the Punjab Rules can be treated to be a general order issued by the State Government to authorise the Food Health Authority ie the Director of Health Services to institute prosecutions for an offence under the Act
Unfortunately the draftsmen of r 3 more or less employed the language of section 201 of the Act
If r 3 were to be literally interpreted the words to authorise the launching of prosecutions may lead to the consequence that the Food Health Authority who had been delegated the power of the State Government under section 201 of the Act could in his turn sub delegate his powers to the Food Inspector
Such a consequence is not envisaged by section 201 of the Act
It is well settled that rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute
It must therefore follow as a logical consequence that r 3 of the Prevention of Food Adulteration Punjab Rules 1958 must be read subject to the provisions contained in section 201 of the and cannot be construed to authorise sub delegation of powers by the Food Health Authority Punjab to the Food Inspector Faridkot
If so construed as it must it would mean that the Food Health Authority was the 972 person authorised by the State Government to initiate prosecutions
It was also permissible for the Food Health Authority being the person authorised under section 201 of the Act to give his written consent for the institution of such prosecutions by the Food Inspector Faridkot as laid down by this Court in State of Bombay vs Parshottam Kanaiyalal  and The Corporation of Calcutta vs Md Omer Ali  Anr In the premises the impugned notification dated September 7 1972 issued by the Food Health Authority must be declared as ultra vires the Food Health Authority insofar as the purported to delegate his powers to institute prosecutions for an offence under the Act under section 201 to the Food Inspector Faridkot
It must accordingly follow that the Food Inspector Faridkot was not competent to lodge the complaint against the appellants for having committed an offence punishable under section 161 a ii read with section 9 of the 
In the result the appeal must succeed and is allowed
The judgment and order passed by the High Court and that of the Sub Divisional Judicial Magistrate Moga are set aside
PSS Appeal allowed


Summary:
Section 201 of the dealing with cognizance and trial of offences provides that no prosecution for an offence under that Act shall be instituted except by or with the written consent o  he Central Government or the State Government or a person authorised in this behalf by general or special order by the Central or State Government
Section 241 empowers the State Government to frame rules for the purpose of giving effect to the provisions of the Act while section 242 e states that such rules may provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food Health Authority to subordinate or local authorities
Rule 3 of the Prevention of Food Adulteration Punjab Rules 1958 framed by the State Government empowered the State Government to delegate its powers to appoint Food Inspectors to authorise a person to institute prosecutions for an offence under the Act and such other powers exercisable by it under the Act as may be specified m the order of the Food Health Authority of the State
962 In pursuance of the provisions of r 3 of the Rules the State Government issued a Notification dated October 10 1968 purporting to delegate its powers and functions conferred by section 201 of the Act to institute prosecutions for an offence under the Act to the Food Health Authority
In terms of that Notification the Food Health Authority issued a Notification dated September 7 1972 authorising the Food Inspector Faridkot to launch prosecutions under section 201 for an offence under the Act
On February 1 1985 the Food Inspector Faridkot filed a complaint against the appellants for having committed an offence punishable under section 161 a ii of the Act for alleged violation of rr 24 28 29 and 32 of the Prevention of Food Adulteration Rules 1955
During the course of the proceedings the appellants raised an objection that r 3 of the Prevention of Food Adulteration Punjab Rules 1958 framed under section 242 e read with section 201 of the Act was ultra vires the State Government
Alternatively it was urged that by virtue of the authority derived under r3 the Food Health Authority alone had the power to institute prosecution for an offence under the Act and therefore he could not sub delegate his powers to launch the prosecution to the Food Inspector by the Notification dated September 7 1972
This preliminary objection was rejected by the Magistrate and he proceeded to frame charges against the appellants
They thereupon moved the High Court under section 482 of the Code of Criminal Procedure 1973 for quashing of the aforesaid order taking cognizance of the offence and consequent framing of the charge but the High Court dismissed the petition in limine
On the question whether the Food Inspector Faridkot was competent to lodge a complaint against the appellants under section 201 of the Act by virtue of the delegation of powers by the Food Health Authority Punjab under the Notification dated September 7 1972 issued by him under r 3 of the Prevention of Food Adulteration Punjab Rules 1958
Allowing the appeal by special leave the Court  HELD 1
The notification dated September 7 1972 issued by the Food Health Authority is ultra vires the Food Health Authority insofar as he purported to delegate his powers to institute prosecutions for an offence under the Act under section 201 to the Food Inspector 963 Faridkot
The latter was therefore not competent to lodge the complaint against the appellants
972B C 21 Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all
Other modes of performance are necessarily forbidden
The intention of the Legislature in enacting section 201 was to confer power on the authority specified therein which power had to be exercised in the manner provided and not otherwise
970E F 22 The use of the negative words in section 201 that no prosecution for an offence under this Act
shall be instituted except by or with the written consent of plainly make the requirements of the section imperative
They inhibit insufficient of prosecutions for an offence under the Act except where it is done by the Central Government or the State Government or a person authorised in that behalf by the Central Government or the State Government or where the prosecution is instituted with the written consent of any of the four specified categories of authorities or persons
If either of these two conditions is satisfied there would be sufficient authority for the institution of such a prosecution for an offence under the Act
970C 969G H 970A B Craies on Statute Law 6th edn p 263 referred to
The use of the expression in this behalf  in section 201 shows that the delegation of such power by the Central Government or the State Government by general or special order must be for a specific purpose to authorise a designated person to institute such prosecutions on their behalf
The terms of the section do not postulate further delegation of powers by the person authorised
He can only give his consent in writing when he is satisfied that a prima facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution in public interest
966E 971A B 41
Rules framed pursuant to a power conferred by a statute cannot proceed or go against the specific provisions of the statute
The maxim delegatus non potest delegare merely indicates that sub delegation of powers is not normally allowable but the Legislature can always provide for it
The provision contained in section 242 e of the Act enables the State Government to frame a rule for delegation of powers and functions under the Act but it clearly does not envisage any sub delegation
971CD 964 42
Rule 3 of the Prevention of Food Adulteration Punjab Rules 1958 must therefore he read subject to the provisions contained in section 20l of the 
It cannot be construed to authorise sub delegation of powers by the Food Health Authority Punjab to the Food Inspector
So construed it means that in the instant case the Food Health Authority was the person authorised by the State Government to initiate prosecutions
971G H 972A 43 It was open to the State Government to have issued a notification under section 201 conferring authority on the Food Inspector to launch prosecutions for an offence under the Act as is the practice in other States
The Food Inspector having been authorised by the Director of Health Service and not the State Government he was not a person who had been authorised by any general or special order issued by the Central Government or the State Governments
969G H State of Bombay vs Parshottam Kanaiyalal   The Corporation of Calcutta vs Md Omer Ali  Anr referred to