Orissa High Court
Gopal Gupta vs Rajesh on 4 June, 2021
AFR BLAPL No.7236 of 2020
5 of 2019
Gopal Gupta ....... Petitioner
-Vrs.-
State of Odisha ....... Opp. Party
For Petitioner : Mr. B.K. Sharma, Advocate
For State : Mr. G.N. Rout,
Addl. Standing Counsel
07. 04.06.2021 I have heard Mr. Bigyan Kumar Sharma,
learned counsel for the petitioner and Mr. G.N Rout,
learned Additional Standing Counsel for the State
through Video Conferencing mode.
This is an application under Section 439 of
Cr.P.C. for grant of bail to the petitioner-Gopal Gupta in
connection with Tangi P.S. Case No.12 of 2020
corresponding to G.R. Case No. 168 of 2020 pending in
the Court of the learned J.M.F.C.(R), Cuttack, registered
for commission of offences under Sections 420/467/448
/471/34 of I.P.C and Section 103 and 104 of Trade Mark
Act, 1999. Preliminary chargesheet dated 20.05.2020
has been submitted against the petitioner and his father
Om Prakash Gupta for commission of offences punishable
under Sec- 420/467/468/471/272/273/34 I.P.C keeping
investigation open as verification reports from concerned
Department is awaited and more clues are to be
obtained.
This is the second journey of the petitioner to
this Court. He had earlier filed BLAPL No.1664 of 2020
before this Court. In I.A .No 389 of 2020 arising out of
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the said application , he had been granted interim bail in
vide order dated 26.05.2020 for a period of fifteen days
and the same had been extended for another 21 days
vide order dated 09.06.2020 passed in I.A. No.487 of
2020 till 30.06.2020 and till 22.07.2020 vide order
dated 01.07.2020 . The interim bail was further extended
vide order dated 22.07.2020 passed in I.A. No. 628 of
2020 as a last chance. BLAPL No. 1664 of 2020 was
ultimately withdrawn on 04.08.2020. As he had not
surrendered in time, warrant had been issued against
him.
The petitioner had approached the Hon'ble
Supreme Court vide SLP ( Crl) No. 4058 of 2020 for bail.
The SLP was dismissed vide order dated 04.09.2020 with
the observation that dismissal of the SLP would not come
in the way of the petitioner to apply for bail afresh if so
advised which would be decided on its own merits and in
accordance with law.
The petitioner surrendered in Court on
07.09.2020 and moved the learned J.M.F.C. (Rural)
Cuttack for bail who rejected his prayer on the same day.
He thereafter moved the learned Sessions Judge for bail
in BLAPL No.752 of 2020, which has been rejected by
order dated 28.09.2020. Thereafter this application.
The prosecution case in brief is that on
23.11.2019 when the I.I.C., Tangi P.S. along with his
staff conducted raid in the factory named and styled as
"Gajanand Industries" at Manguli, they found the present
petitioner present with about 40 to 50 labourers working
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there. The petitioner disclosed that his father is the
Proprietor and he is the Manager of the said Unit. During
search they found Swostik ganesh Mustard Oil, Ruby
Gold (palmolein) Golen drop mustard Oil and Agni
mustard oil pouches sealed packets containing 1 litre
sealed tins, empty cartons of all brands with trade mark
image kept in store room and products were also under
processing .The company logo Golden drop Mustard oil
Swad Dilse Pure Mustrad Oil and Trishul RRB logo found
on the Golden drop Oil brand and Agni Mustard Oil brand
sealed pich packets, number of sealed cartons and
sealed mustard oil/ palmolein tins were kept inside the
store room for transportation. These oils were under the
process of packing by machinery inside the unit. During
verification, the petitioner stated that his unit is only
collecting mustard oil, palmolein oil from different firms
by tanker and the unit is only doing packing and
marketing. He produced temporary Trade Mark
Certificate from Kharagapur Trade Mark Bureau issued
in favour of Gajanand Industries. He produced
applications for registration of trade mark in respect of
Golden Drop Swad Dilse logo and word, Trisul RRB logo
and word, Ruby Gold logo and word ; Food safety Licence
in favour of Gajananda Industries but could nor produce
any legal authority towards procuring of edible oils,
Sukanta packing, selling and transporting. The Addl. S.P. had
requested the Chief District Medical Officer (in short
"CDMO") over telephone to depute the Food and Safety
Inspector for verification of documents and collection of
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samples but she did not turn up. The CDMO intimated
that she was in dual charge of Cuttack and Jagatsinghpur
and was not receiving the telephone call. So he seized all
documents and collected samples of different brands of
oil in presence of the petitioner and witnesses for
chemical analysis. Six samples -
i) One sealed 1 litre pouch of Swastik Ganesh
mustard oil,
ii) One sealed 1 litre pouch of Rubu Gold palmolein,
iii) One sealed 1 litre pouch of Golden drop mustard
Oil,
iv) One sealed 180 ml bottle of Agni mustard Oil,
v) One 180 ml bottle of rice bran oil, and
vi) One 180 ml bottle of palmolein oil
were seized and sent to Deputy Director -cum- Food
Analayst, Govt. of Odisha, S.F.T.L., Bhubaneswar on
26.11.2019 vide D.R . No 2861 for chemical analysis. On
26.11.2019, all the seized documents were sent to the
Food safety Officer, Cuttack (T) C.D.M.O. for verification
and examination.
On 22.01.2020, which is two months after the date
of raid, the I.I.C., Tangi received letter No 187(1)/DPHO,
Cuttack dated 04.01.2020 from the District Public Health
Officer that the food licence submitted by the petitioner
was not valid as per the current online FLRS system
which had started in 2018. Date i.e. 2018 in the license
copy was also not valid food license in 2018 was issued in
online format only.
On the same day i.e. 22.01.2020, the S.I of Police
Station submitted FIR leading to registration of Tangi
P.S. Case No.12 dated 22.01.2020 against the proprietor
Om Prakash Gupta and the Manager Gopal Gupta of
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Gajanand Industries for commission of offences under
Section - 420/ 467/468/471/34 I.P.C read with Section -
103/104 of the Trade Marks Act 1999.
On 22.01.2020, raid was conducted in presence of
Addl. Tahasildar Tangi - Choudwar. The petitioner was
asked to produce original documents, he stated that he
had submitted all on 23.11.2019. He failed to produce
factory nad Boiler licence, certificate of SPCB and Fire
and safety certificate and there was no Chemist of
Laboratory Assistant to examine the edible oil which is
being procured and is being packed nor any Laboratory
for testing . The three godowns were seized and sealed
on 22.01.2010 and she seized 2904 cartons each carton
containing 10 pouches of one liter each Rubi Gold
refined Sun-flower Oil, 1120 cartoons each carton
containing 20 pouches of ½ liter of Rubi Gold Refined
Sun-flower Oil, 770 cartons each cartoon containing 10
pouches of one liter each Rubi Gold refined palmoliein oil,
512 cartons each carton containing 12 pouches of one
liter each of Golden Drop pure mustard oil, 72 cartoons
each carton containing 4 jerrycan containing 5 liter of
each of Golden Drop Pure mustard oil, 960 cartoons each
carton containing 14 pouches of ½ liter of Golden Drop
Pure mustard oil, 152 cartoons each carton containing 12
pouches each containing one liter Swastik Ganesh
Mustard oil, 880 cartoons each cartoon containing 24
pouches of half liter each of Swastik Ganesh Mustard Oil,
3152 sealed tin containers each containing 15 kg of Rubi
Gold imported refined Palmolein Oil, 288 tin containers
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each containing 15 kg of Rubi Gold Sunflower oil, 80
cartoons each containing 24 bottles containing half liters
each of Swastik Ganesh Mustard Oil and 121 cartoons
each containing 50 bottles of 200ml each of Swastik
Ganesh Mustard Oil along with empty cartons of all
brands with different Trade Marks, the company Logo of
different brands of Mustard Oil and Palmolein oil and
packing materials.
She collected samples from the stocks of Ruby
Gold Refined palmolein Oil, Golden Drop mustard oil, and
Swastik Ganesh Mustard Oil in presence of witnesses
.She also seized wrapper of Ruby Gold imported refined
palmolein oli having mark 15 kg and one empty litre
pouch having print Ruby Gold imported refined palmolein
oil .
The opinion in the chemical examination report
dated 22.01.2020 of the Deputy Director -cum- Food
Analyst to Govt. of Orissa State Food Testing Laboratory
in respect of the six samples seized on 23.11.2019 ( date
of raid ) was that the samples were adulterated and not
suitable for human consumption. So offences under
Section 272 and 273 of the IPC were added to the case.
Preliminary chargesheet dated 20.05.2020 has
been submitted against the petitioner and his father Om
Prakash Gupta for commission of offences punishable
under Sec- 420/467/468/471/272/273/34 I.P.C keeping
investigation as verification reports from concerned
Departments is awaited and more clues are to be
obtained and that Section - 103 and 104 Trade mark Act
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will be added after obtaining the report.
Mr. B.K Sharma, learned counsel for the petitioner
has submitted that the petitioner had applied for licences
under the FSSA and as per the provisions of Section 31
(4) proviso of the FSSA, after expiry of the specified
period of two months, as his application had not been
rejected, commencement of business is not illegal. His
further case is that the petitioner's firm is not the
manufacturer of the oil and it is a only a packer of
various types oil for sale. The samples which had been
collected on the date of raid by the police were without
observing proper precautions and although seized on
23.11.2019, they have been sent on 26.11.2019 for
analysis. So even if they were found not to conform to
standard no reliance should be placed on reports dated
22.01.2020 in respect of those sample as the reports of
the Designated Officer -cum- DPHO, Cuttack vide letter
No 2483 dated 17.02.2020 in respect of the samples
collected subsequently on 14.01.2020 by the Food Safety
Officer indicates that the samples conform to the
prescribed standards under FSSA. Even thereafter i.e. on
18.06.2020, the Deputy Director-cum-Food Analyst,
State Food Testing Laboratory reported to the learned
J.M.F.C.(R), Cuttack that the four samples drawn and
tested on her direction are not adulterated and not
substandard and are fit for human consumption for which
the seized articles were directed to be released in the
zima of the petitioner. In view of the subsequent reports
in respect of samples drawn by the Food Saftety Officer
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which state that the samples were not adulterated and
are fit for human consumption, offences under Section
272 and 273 I.P.C are not made against the petitioner for
which the prayer of the bail should be favourably
considered. He has also submitted that the petitioner is
in custody since 22.01.2020 and this Hon'ble Court in
I.A. No.389 of 2020 in BL APL No. 1664 of 2020 vide
order dated 26.05.2020 had granted interim bail of 15
days to the petitioner which was extended from time to
time. After expiry of the period, he has surrendered in
Court although after the date fixed .Delay in surrender
was due to confusion regarding automatic extension of
interim bail during the Covid-19 pandemic pursuant to
order the Hon'ble Supreme Court and this Court. He
further submits that in view of resurgence of the covid
pandemic and rapid spread of infection, he should not be
detained any further in jail as he is prepared to cooperate
with investigation.
Learned counsel for the State vehemently
opposed the prayer for bail submitting that the petitioner
does not deserve to be granted bail as he is involved in
adulteration of cooking oil and repackaging and selling it
in the market to earn profit under reputed brand names
and this oil has been found to be unfit for human
consumption. It was his submission that samples
collected by the Police on the date of raid did not conform
to the standards of food safety and found to be unfit for
human consumption for which the case has been
registered against the petitioner and his father. The
9
samples seized subsequently by the Food Safety Officer,
were supplied by the petitioner and so it is not surprising
that they were found fit for human consumption. His
additional submissions are that the prayer for bail of the
petitioner has been rejected by the Hon'ble Supreme
petitioner no indulgence should be shown to him as he
has misused the liberty granted to him by not
surrendering in time.
I have perused the FIR, case diary, the two
affidavits filed by the I.O enclosing three reports
pertaining to the samples of oil collected on three
different dates.
Pursuant to the order of this Court, the I.O. has
filed two affidavits. With the first affidavit dated
09.12.2020, copy of letter No 2484 dated 17.02.2020 of
the Designated Officer cum DPHO Cuttack enclosing
Copies of the inspection report dated 14.01.2020 and
copies of eight analysis reports dated 10.02.2020 in
respect of samples drawn on 14.01.2020 have been
annexed as Annexure-A and Copy of letter No 2688
dated 18.06.2020 of the Deputy Director Cum Food
Analyst addressed to the learned J.M.F.C. (R), Cuttack of
2020 enclosing four reports dated 18.06.2020 in respect
four samples - G, H,I and J has been annexed as
Annexure-B. With the second affidavit dated
22.01.2021, copies of communication letter alongwith the
reports of the Food Analyst dated 21.01.2020 ( in
respect of six samples drawn on 23.11.2019) have been
filed as Annexure-X Series and Copy of the
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chargesheet has been filed as Annexure-Y. The I.O has
indicated in her second affidavit that "several reports"
from the "concerned Department are awaited and more
clues are yet to be unearthed and also for collection of
further evidence that is verification of District level
Officer, verification of documents at Kolkotta, verification
of Bank accounts and verification of report of State
Pollution Control Board.
A perusal of the case diary reveals that after
receiving complaints about illegal activities of the
accused persons, raid was conducted by the I.I.C., Tangi
Police Station alongwith his staff on 23.11.2019 in the
premises of M/s Gajanand Industries which consists of
two godowns and a building and six samples vide A, B, C,
D, E and F were collected. The petitioner had produced a
temporary trademark certificate in respect of packaging
Swastik Ganesh Mustard Oil but no documents
authorizing him to procure, pack and sell the edible oil of
the companies which were found in the premises. But
strangely though six samples were drawn on the date the
raid was conducted and documents were seized, but
neither the premises were sealed nor the stock of oil was
seized on that day. The reports dated 21.01.2020 in
respect of the samples A, B, C, D, E and F drawn on
21.11.2019 indicated that they were adulterated and
not suitable for human consumption.
Thereafter on the request of the firm,
inspection has been done and samples collected by the
Food Safety Officer on 14.01.2020. The reports of the
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Food Analyst dated 10.02.2020 in respect of the samples
collected by the Food Safety Officer on 14.01.2020 state
that the oil samples conform to the standards laid down
in the FSSA Act 2002, although two packets were found
to be misbranded due to absence of information
regarding date of manufacture and expiry date. Similar
the reports dated 18.06.2020 of the four samples
collected and tested on the direction of the learned JMFC
also conform to the prescribed standard under FSS Act
2006 packing.
From the nature of allegations, it prima appears
that the petitioner was managing the firm and the co-
accused his father is the proprietor, and that different
types of edible oil had been procured from different
companies for the purpose of packaging and reselling
under different brand names but the petitioner firm did
not have the requisite permissions for doing so. There
are three sets of reports of the Food Analyst on record.
The reports dated 10.02.2020 and 18.06.2020 in respect
of the samples drawn subsequently i.e on 14.01.2020
and on direction of the learned JMFC respectively reveal
that the samples conform to the prescribed standards
laid down in the FSSA 2006 except that reports dated
10.02.2020 in respect of two samples (Golden drops -
mustard oil and Swastik ganesh -Mustard Oil were found
to be misbranded as date of packing and expiry was not
visible on the packet. The case diary also reveals that the
stock of oil which was seized on 22.01.2020, has been
released in the zima of the petitioner pursuant to order of
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the learned Magistrate as they are perishable items and
the Deputy Director -cum- Food Analyst, reported that
they are fit for human consumption. That apart, the
petitioner has been permitted by the learned JMFC, to
sell the oil and deposit the entire sale proceeds as and
when required by the Court. More than one year has
elapsed since the date of registration of the case and
more than six months has elapsed since submission of
the preliminary chargesheet, but further investigation is
still pending. But the I.O has not stated anywhere in her
affidavits that custodial interrogation of the petitioner is
necessary for the purpose of further investigation.
Adulteration of food is a heinous crime as
consumption of such food poses serious danger to the
health of the consumers. As it is easy to adulterate an
edible item without arousing immediate suspicion and the
returns are so attractive, this activity has spread its
tentacles like cancer in our society, harming the health of
both young and old. Businessmen and traders indulge in
adulteration of food with a view to make quick money,
closing their eyes to the deleterious effects the
consumption of the adulterated food article will have on
the consumer. Use and consumption of adulterated/
substandard oil can adversely affect the health of
consumers who consume it or use it regularly as a
medium for cooking. Continuous use of adulterated oil
over a period of time can cause gall bladder cancer,
dropsy, glaucoma and loss of eyesight.
The Prevention of Food Adulteration Act 1954 in
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short the "PFA" ) has been repealed in the year 2006 and
replaced by the Food Safety and Standard Act 2006 ( in
short the "FSSA") which is an Act to consolidate the laws
relating to food and to establish the Food Safety and
Standards Authority of India for laying down science
based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import, to
ensure availability of safe and wholesome food for human
consumption and for matters connected therewith or
incidental thereto.
But in the present case, though raid was
conducted on 21.11.2019 , and samples were drawn , the
Food and Safety Inspector did not take part in the raid
inspite of request of the police .As she did not respond to
calls , raid was conducted in her absence . The absence
of the Food and Safety Inspector when samples were
drawn and failure to seal the premises and seize the
stock and obtain the reports of the Food Analyst in
respect of samples drawn on the date of raid has
apparently proved to be beneficial to the accused . In
view of the deleterious effect of consumption of
adulterated food or use of an adulterated cooking item or
medium can have on the health of a person, it is
necessary that the CDMO and the Food Safety Officer
(here the Food and Safety Inspector ) should work in
tandem with the police whenever there the need arises
and the latter should not avoid his/ her duties and
respond to any request to take part in a raid being
conducted by the police and take steps for obtaining the
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reports of the Food Analyst promptly. Arrangements
should be made so that an officer is readily available and
he / she does not avoid his / her duties.
Now coming to the question of grant of bail it
is apparent that the petitioner is in custody for more than
one year as he was arrested on 22.01.2020 and after
being released on interim bail has surrendered on
07.09.2020.
The Hon'ble Supreme Court in a catena of
decisions has dealt with the principles to be kept in mind
while considering the prayer for bail. It would be apposite
to refer to the decisions rendered in Mahipal vs. Rajesh
Kumar : (2020) 2 SCC 118 and Sanjay Chandra vs.
CBI: (2012) 1 SCC 40 .
In the case of in Mahipal vs. Rajesh Kumar,
the Hon'ble Apex Court has held as follows :
"12. The determination of whether a case is fit
for the grant of bail involves the balancing of
numerous factors, among which the nature of the
offence, the severity of the punishment and a
prima facie view of the involvement of the
accused are important. No straight jacket
formula exists for courts to assess an application
for the grant or rejection of bail. At the stage of
assessing whether a case is fit for the grant of
bail, the court is not required to enter into a
detailed analysis of the evidence on record to
establish beyond reasonable doubt the
commission of the crime by the accused. That is
a matter for trial. However, the Court is required
to examine whether there is a prima facie or
reasonable ground to believe that the accused
had committed the offence and on a balance of
15
the considerations involved, the continued
custody of the accused sub-serves the purpose of
the criminal justice system.........."
In the case of Sanjay Chandra ( supra), it has
inter alia held :
". 21. In bail applications, generally, it has been
laid down from the earliest times that the object of
bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail.
The object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it can be
required to ensure that an accused person will
stand his trial when called upon. The courts owe
more than verbal respect to the principle that
punishment begins after conviction, and that every
man is deemed to be innocent until duly tried and
duly found guilty.
22. From the earliest times, it was appreciated
that detention in custody pending completion of
trial could be a cause of great hardship. From time
to time, necessity demands that some un-
convicted persons should be held in custody
pending trial to secure their attendance at the trial
but in such cases, `necessity' is the operative test.
In this country, it would be quite contrary to the
concept of personal liberty enshrined in the
Constitution that any person should be punished in
respect of any matter, upon which, he has not
been convicted or that in any circumstances, he
should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left
at liberty, save in the most extraordinary
circumstances. Apart from the question of
prevention being the object of a refusal of bail, one
16
must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for any
Court to refuse bail as a mark of disapproval of
former conduct whether the accused has been
convicted for it or not or to refuse bail to an un-
convicted person for the purpose of giving him a
taste of imprisonment as a lesson.
.....................
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses.
42. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the 17 same is not convincing.
43. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet..."
Keeping in mind the aforesaid discussion and the decisions of Hon'ble Supreme Court ; and considering the submissions of the learned counsels, the nature of allegations against the petitioner, the materials collected by the investigating agency, the period of his detention in jail custody and the resurgence of the Covid-19 pandemic, I am inclined to allow the prayer for bail of the petitioner.
18Let the petitioner-Gopal Gupta be released on bail on such terms and conditions as deemed fit by the learned Court in seisin of the case including the following conditions :
i) He will not indulge in any criminal activity.
ii) He will not try to influence prosecution witnesses or tamper with evidence.
iii) He will appear before the I.I.C., Tangi Police Station as and when called upon to do so by the I.O for purpose of investigation.
iv) He will appear before the Court on each date fixed for trial.
The BLAPL is accordingly disposed of. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the petitioner may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April. 2021.
..........................
Savitri Ratho, Judge 19