1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL REVISION NOS.157 OF 2009, 158 of 2009 & 159 of 2009 (1)Cri. Revn. 157/09 Manoj s/o Sureshrao Nakhate, major, occupation : Nil, R/o Babupeth Ward, Chandrapur. … APPLICANT ...VERSUS... The State of Maharashtra, Through Food Inspector, Food & Drug Administration, Chandrapur. … RESPONDENT (2)Cri. Revn. 158/09 Manoj s/o Sureshrao Nakhate, major, occupation : Nil, R/o Babupeth Ward, Chandrapur. … APPLICANT ...VERSUS... The State of Maharashtra, Through Food Inspector, Food & Drug Administration, Chandrapur. … RESPONDENT (3)Cri. Revn. 159/09 Manoj s/o Sureshrao Nakhate, major, occupation : Nil, R/o Babupeth Ward, Chandrapur. … APPLICANT 2 ...VERSUS... The State of Maharashtra, Through Food Inspector, Food & Drug Administration, Chandrapur. … RESPONDENT -------------------------------------------------------- Mr. P.S. Khubalkar Advocate for the applicant in all applications. Mr. M.J. Khan, APP for respondent in all the applications. -------------------------------------------------------- CORAM : A.B. CHAUDHARI, J. Date of reserving the judgment : 24.02.2011. Date of pronouncing the judgment: 9.03.2011 J U D G M E N T These three criminal revisions are being disposed of by this common judgment. Being aggrieved by the judgment and order dated 12.8.2009 and 14.8.2009 passed by Additional Sessions Judge-2, Chandrapur, in Criminal Appeal Nos. 3 of 2003, 1 of 2003 and 2 of 2003 confirming the judgment and order dated 19.12.2002 passed by Chief Judicial Magistrate Chandrapur, in Regular Criminal Case No. 259 of 1996, 260 of 1996 and 261 of 1996, whereby the revision- applicant in all the revision-applications was convicted for the offence punishable under Section 16(1) (a) (i) (ii) of Prevention of Food Adulteration Act and Rules thereunder and sentenced to suffer simple imprisonment for three months and to pay fine of Rs.1,000/-, in default to suffer further simple 3 imprisonment for one month, these criminal revisions were filed. 2. The only point that arises for consideration in these revision applications is, whether the conviction of the revision-applicant could be sustained when admittedly consent to prosecute has not been proved in accordance with law, i.e. by examining the concerned Joint Commissioner who had given the consent for prosecution. 3. In support of the said submission, Mr.Khubalkar, learned counsel for the revision-applicant in all the revisions, argued that it is an admitted fact that the consent that was given was not at all proved by any witness. The authority who had given consent was not at all examined by the prosecution, but the courts below have recorded a finding that it was not necessary to examine the authority who had given consent to prove the consent. Prior to the amendment of the year 2007 made by the State of Maharashtra as to the applicability of the Act, consent by the Joint Commissioner before institution of prosecution was necessary. Cases in question relate to the year 1995 and therefore according to the learned counsel for the revision-applicant the prosecution is vitiated and conviction recorded by the courts below is liable to be quashed and set aside. 4 4. Per contra, learned A.P.P. supported the impugned judgments and orders and argued that it is not necessary that consent should be proved. He prayed for dismissal of the revision applications. 5. I have gone through the judgments and orders passed by the courts below. The only point that is being taken for consideration is regarding proof of consent before the Court. It is not in dispute that the provisions regarding grant of consent have been now deleted in Maharashtra since the year 2007, but the same was in existence when the instant prosecution arose. The document of consent was not even exhibited or proved before the trial Court and the said document was marked as Article B, obviously because the author of document was not examined before the Court. The courts below have recorded a finding that the accused did not object to marking of the document as Article B. The courts below found that P.W.1 Khembalkar and P.W.2 Amrit Nikhade were examined and their evidence was sufficient to infer that there was a consent. In my opinion, requirement of consent and proof thereof before the court is a mandatory requirement, at least before the said amendment of 2007 came into force. Grant of consent has been held to be an act by the competent officer after application of mind to the facts of the 5 case, evidence available on record etc. It is not a formality that consent has to be given mechanically. That is the reason why the authority giving consent has to be examined before the Court so that the court is satisfied as to the grant of consent as legal, proper and correct. 6. In the instant case, document of consent was marked as Article B and not exhibit. According to me, the said document could not have been proved and read in evidence as document of consent. Admittedly, consenting authority was not examined, and in absence of proof of consent before the court the prosecution must fail. After all, requirement of consent was mandatory. I, therefore, hold that the conviction of the revision- applicant, in the absence of valid, legal and proper consent is illegal and liable to be quashed and set aside. Hence, I make the following order. 7. Criminal Revision Application Nos. 157 of 2009, 158 of 2009 and 159 of 2009 are allowed. Conviction and sentence recorded by the courts below against the revision-applicant in all the revisions are quashed and set aside. The revision-applicant in all the revision application is acquitted of the offence with which he was charged. Fine amount, if paid, be 6 refunded to the revision-applicant in all the revision applications. JUDGE TA