Orissa High Court
Dharanidhar Sahu vs State Of Orissa on 24 December, 1986
Equivalent citations: 1987CRILJ1093
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for a further period of two months, by the learned Judicial Magistrate, First Class, Jajpur. On appeal, the conviction of the petitioner has been upheld, but the sentence has been reduced to rigorous imprisonment for six months and to fine of Rs. 1,000/- with the default sentence as stated earlier. The conviction is on account
2. The prosecution alleged that on 5-9-1979, P.W. 2, the Food Inspector, visited the petitioner's grocery shop and suspected the mustard oil to be adulterated. He, therefore, took sample of the mustard oil after performing all formalities and then sent one sample to the Public Analyst who reported the oil in question to be adulterated as it did not conform to the standard prescribed under the Rules in respect of polybromide test. P.W. 2 was accompanied by the Sanitary Inspector (P.W. 1) as well as another person (P.W. 3), who, of course, turned hostile to the prosecution. The Food Inspector thereafter placed all the materials before the: Chief District Medical Officer and obtained the required sanction (Ext. 6) and then filed the prosecution report.
3. The plea of the petitioner was one of denial. It was also the case of the petitioner that he was in no way concerned with the grocery shop and the Food Inspector had obtained his signature under threat and .coercion.
4. On the evidence of P.Ws. 1 and 2 as well as (Ext. 1/1), the two courts below have concurrently found that on 5-9-1979, the; petitioner did sell the sample of mustard oil to the Inspector (P.W. 2) on receiving the price thereof. In this view of the matter, the; petitioner's plea that he was not the owner or is in no way connected with the sale has rightly been rejected by both the courts below. The sample in question was sent to the Analyst who after analysis submitted the report and the said report is Ext. 5. It has been clearly stated in the said report that the sample is adulterated, inasmuch as the polybromide test indicated "positive". Mr. Mund, the learned Counsel for the petitioner, contends that the mustard oil in question which had been sent for analysis conformed to all the requirements as provided under the Rules and only in respect of polybromide test though the Rule provides that it should be "negative", the report shows that it was "positive" and, therefore, it cannot be said that the mustard oil was adulterated.
5. The standards prescribed under the Rules for mustard oil are those enumerated in item No. A. 17.06 of Appendix-B to R, 5 of the Prevention of Food Adulteration Rules. A comparison of those standards with the report of the Analyst shows that in respect of all other tests, it did come within the limits excepting the polybromide test. Section 2(ia) of the Act defines the word "adulterated". Clause (1) and (m) of the said section provide that if the quality or purity of the article falls below the prescribed standard or its constitutents are present in quantities not within the prescribed limits of variability, then it would be an adulterated food. Obviously, therefore, since the polybromide test has indicated "positive" in the present case, it must be held that the purity of the article falls below the prescribed Standard. Then again, the Analyst has clearly indicated in the report that the food is adulterated because of his finding in respect of polybromide test. In that view of the matter, the contention of Mr. Mund must be rejected as being one without any substance.
6. The learned Counsel then contends that the trial in this case is without jurisdiction since the Magistrate who tried this case was not specially empowered in this behalf by the State Government, as required under Section 16A of the Prevention of Food Adulteration Act. Mr. Mund contends that it was only on 1-12-1983 that a Notification No.IV. Med.I-A-12/83 was issued by the State Government specially empowering the Magistrates. Section 16A of the Act no doubt provides that offences under Sub-section (1) of Section 16 shall be tried in a summary way by Judicial Magistrate of the First Class specially empowered in this behalf by the State Government, and admittedly the Notification of the State Government empowering the Magistrates to try an offence under Section 16(1) of the Act summarily came on 1-12-1983. Therefore, there was no such notification on the date when the present case was tried by the learned Magistrate, i.e. on 26-11-1979, the date when cognisance was taken or on 19-12-1980 when the trial began. But in my view, this by itself would not vitiate the conviction since I find from the records of the case that the Magistrate in the present case has not applied the procedure for the trial of summons cases as provided under Section 262 of the Cr. P.C. On the other hand, the procedure for trial of warrant cases appears to have been followed in the present case which confers a better protection to the accused and the accused is not prejudiced in any manner. In fact, nowhere the accused has made a grievance either before the Magistrate or before the appellate court or even in the grounds of revision filed in this Court as to the absence of jurisdiction of the Magistrate on account of no notification by the State Government. One of the essential considerations, in such a matter is whether the accused is in any way prejudiced. I am clearly of the opinion that the accused has not been prejudiced in any manner. The learned Counsel for the petitioner also does not contend that the accused was prejudiced in any manner. In that view of the matter, I am not in a position to uphold the contention of the learned Counsel for the petitioner that the trial in the present case is without jurisdiction or that the conviction is vitiated on that score. I would accordingly reject the said submission of Mr. Mund, the learned Counsel for the petitioner.
7. In the result, therefore, this revision application fails and is accordingly dismissed.