Orissa High Court
Bhagirathi Das And Anr. vs The State Of Orissa on 3 November, 1986
Equivalent citations: 1986(II)OLR691
JUDGMENT K.P. Mohapatra, J.
1. The petitioners have challenged their conviction and sentence Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act ('Act' for short).
2. The prosecution case in brief is that the petitioners own a grocery shop in village Nuagada where they sell consumer goods. On 10-11-1978 afternoon the Food Inspector inspected the food articles exposed for sale in the shop and suspected pea Besan and ground-nut oil to have been adulterated. So, after observing all formalities according to the rules he purchased 750 grams of pea Besan and 375 grams of groundnut oil, divided them into samples, packed and sealed them and despatched a set of samples of both the articles to the Public Analyst for examination. The Public Analyst reported that both the articles were adulterated and so after obtaining sanction from the prescribed authority, prosecution was launched against the petitioners.
3. The learned Judicial Magistrate, R. Udayagiri, believed, the prosecution evidence, convicted, the petitioners for having committed an offence Under Section 16(1)(a)(i) and sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months. On appeal the learnad Additional Sessions Judge, Ganjam, upheld the conviction and sentence.
4. Mrs A. K. Padhi,. learned counsel appearing for petitioners, raised the following contentions :
i) In Appendix 'B' of the Prevention of Food Adulteration Rules no standard has been prescribed for pea Besan. Therefore, even if the Public Analyst detected some foreign harmless articles in the sample pea Besan, it cannot be said that the article was adulterated and culpable.
ii) There was non-compliance of the mandatory provisions of Section 10(7) of the Act; and
iii) There was also non-compliance of the mandatory provisions of Section 13(2) of the Act.
The contentions require careful examination.
5. So far as the first contention is concerned, it is necessary to make reference to Appendix 'B' of the Prevention" of Food Adulteration Rules (hereinafter referred to as the 'Rules'). On examination thereof it appears that no specific standard has been prescribed for purity of pea Besan although item A. 18.04 has been prescribed for Besan made out of Bengalgram Learned Standing Counsel did not point out that subsequently by amendment standard was prescribed for pea Besan which is commonly available in the market and has now become very popular. In his report (Ext. 10) the Public Analyst opines that insects or clusters of moulds, rodent hair or excreta were not present in the sample pea Besan Total ash content was 3.1 per cent. The percentage of ash insoluble in HCI was 008. There was no trace of Khesari powder. Starches of Bengalgram were however present. Therefore, he reported that the sample was adulterated as it was a mixture of Bengalgram powder and pea powder, the former being the major portion. He, however, did not opine that the article was injurious to health. As, per pea Bosan, the article cannot be said to be adulterated because of absence of a prescribed standard in Appendix 'B'. But in view of the report of the Public Analyst if it is considered that it was Besan made of Bengalgram as per item A. 18.04 because the minor portion was pea powder, then technically it is adulterated though not injurious to public health. This finding however is not very material for the ultimate decision in the case because of the infraction of the provisions of law which will be presently discussed.
6. The second contention relates to non-compliance of mandatory provisions of Section 10(7) of the Act according to which the Food Inspector shall at the time of inspection, collection and seizure of samples from any shop premises call one or more persons to be present and take his or their signature's). In this connection reference has been made to three decisions such as, AIR 1974 S. C. 789 Ram Labhaya v. Municipal Corporation of Delhi, 62(1986) CLT 462 Bijoy Kumar Singh v. State of Orissa and 62(1986) CLT 480 Kedar Prasad Gupta v. State. In all these cases it has been held that Section 10(7) of the Act is mandatory. The Food Inspector must draw and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in Sub-section (7) of Section 10. But as he cannot compel their presence and if such witnesses when failed, do not come forward to remain present, then the prosecution must be relieved of its obligation under the provisions and in such cases non-compliance of Section 10(7) shall not vitiate the trial. In such cases if the evidence of the Food Inspector is found to be truthful, reliable and credible, there is no impediment cast on the Court not to believe his evidence so as to base the conviction.
7. In this case the concurrent finding of fact is that the Food Inspector (P. W. 1) requested some persons to remain present when he took action for collection of the samples. But they declined. It is not possible to disregard and disbelieve the concurrent finding of fact recorded by the ' learned Courts below which is based on evidence. Having glanced through the evidence of P. Ws. 1, 2 and 3, all of whom were present at the relevant time, I do not find any adequate reason to say that the finding of fact is untrue or perverse so as to be discarded and ignored I would accordingly hold that there was no infraction of the provisions of Section 10(7) of the Act. On the other hand,, there was substantial compliance with it and so on this ground the prosecution cannot be said to have been vitiated.
8. Ext. 9 is the report of the Public Analyst with regard to the sample ground-nut oil He reported that the sample was found adulterated as it did not conform to the standard prescribed for ground-nut oil in respect of its free fatty acid as oleic acid content. According to the standard prescribed in item A. 17.03 of Appendix 'B' of the Rules' free fatty acid as oleic acid should not be more than 3.0 per cent in ground-nut oil, whereas in the sample it was found to contain 4.8 per cent. Therefore, strictly according to the prescribed standard, the sample ground-nut oil was adulterated.
9. Mrs. A. K. Padhi, learned counsel for the petitioners, strenuously urged that the provisions of Section 13(2) of the Act are mandatory and stipulate that on receipt of the report of the result of the analysis of the food item to the effect that it is adulterated, the Local (Health) Authority shall, after institution of"the prosecution against the person from whom the sample of the article of food was taken, serve a copy thereof in the manner prescribed in Rule 9-A so as to inform him that if he would so desire, he may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. In a decision reported in 1986 (I) OLR 421 State of Orissa v. Jeeban Lal, it was held that Section 13(2) of the Act is mandatory and a copy of the report of the Public Analyst to the effect that the article of food is adulterated must have to be supplied in the manner prescribed in RuIe-9-A of the Rules on the person from whom the article of food had been collected so that he may avail the opportunity of making an application to the Court within the prescribed period for examination of another sample of the same food article by the Central Food Laboratory. If the procedure has not been complied with and a copy has not been served on the person concerned, prejudice must necessarily be caused to him in which case the prosecution shall be vitiated (also See Criminal Revision No 297 of 1982 Khiralal Khuntia v. Stats of Orissa, decided on 27-10-1986). Section 13(2) is not only of mandatory character for service of a copy of the report of the Public Analyst, but also it is mandatory that the same should be served after the prosecution is launched against the person from whom the article of food had been collected as provided therein. This view is supported by two decisions cited by Mrs. Padhi, The first is of the Allahabad High Court reported in 1981 (2) FAC 45, Jagpal Singh v. State in which the learned Judge held that Section 13(2) of the Act is mandatory and the copy of the report of the Public Analyst must be sent after institution of the prosecution. The other case is reported in 1981 Crl L. J. 1225, P. ChochaTingam and Ors. v. Food Inspector, Trivandrum Corporation and another, in which a learned Judge of the Karala High Court held that violation of the mandatory provisions of Section 13(2) of the Act will vitiate the prosecution. He further held that Section 13(2) does not contemplate the information being given to the vendor at any time of the choosing of the Local Health Authority. The section specifically states that the information must be given to him after the complaint is laid by the Food Inspector before the appropriate Court. In other words, when an accused receives a copy of the Public Analyst's report and also the information contemplated in Section 13(2) of the Act, he must necessarily know that a prosecution against him has already been instituted. On the bast's of the aforesaid principle it is to be considered if in the present case the mandatory provisions of Section 13(2) of the Act have been complied with and copies of the report of the Public Analyst (Ext. 9) were sent to the petitioners after institution of the prosecution in the appropriate Court.
The following dates and events not disputed by the petitioners and specifically pointed out by Mrs. Padhi are relevant for the purpose of discussion.
23-12-1978 :_Report of the Public Analyst 27-12-1978: Receipt of the report of the Public Analyst by the Chief District Medical Officer, Ganjam (Local Health Authority).
29-1-1979 :__Reports of the Public Analyst were sent to the petitioners.
31-1-1979:-Reports of the Public Analyst were received by the petitioners.
21-2-1979 :__ln|titution of the prosecution.
Exts. 12 and 13 are the forwarding reoorts along with which the copies of the reports of the Public Analyst were sent to the petitioners and they were received by them as would be apparent from Ex.s 14 and 15 on the date mentioned above. In Exts 12 and 13 dated 29-1-1979 it was specifically stated by the Chief District Medical Officer (local health authority) that if the petitioners desired they should make applications in the Court of the Judicial Magistrate, R. Udayagiri, within a period of ten days from the date of receipt of the intimation for examination of the food sample by the Central Food Laboratory as required in Section 13(2) of the Act. The period of ten days expired on 7-2-1979. It however appears from the prosecution report that although it was sent by the Chief District Medical Officer, Ganjam, to be presented before the Judicial Magistrate, R Udaya giri, on 29-1-1979, it appears to have been received in the said Court on 31-1-1979. The said Court however made an endorsement on the prosecution report that it had no jurisdiction to entertain the'prosecution report. The Court of competent jurisdiction was the Subdivisional Judicial Magistrate, Parlakhemundi. Thereafter the prosecution report seems to have been presented in the Court of the Subdivisional Judicial Magistrate, Parlakhemundi, on 21-2-1979 as would appear from the order-sheet. Therefore, as a matter of fact, it is disclosed from the records that copies of the report of the Public Analyst were delivered to the petitioner on 31-1-1979 and the prosecution was instituted on 21-2-1979. In other words the copies were delivered before institution of the prosecution against them. No intimation was given to them that prosecution was instituted in the Court of the Subdivisionai Judicial Magistrate, Parlakhemundi, and that if they so desired they could make an application to that Court for examination of another sample of the article of food by the Centra! Food Laboratory. In this way the mandatory provisions of Section 13(2) of the Act were not only violated, but also there was denial of opportunity to the petitioners to make an application before the Court of competent jurisdiction for getting another sample of the article of food analysed by the Central Food Laboratory which prejudiced their defence. So, for contravention of the mandatory provisions of Section 13(2), whereby prejudice was caused to the petitioners in defending themselves, the prosecution was vitiated.
10. For the aforesaid reasons the order of conviction and sentence cannot be sustained and is bound to be set aside. In the result the criminal revision is allowed and .the order of conviction and sentence of the petitioners is set asid. They are acquitted. Bail bonds are cancelled. Fine, if paid, shalll be refunded.