Orissa High Court
Chamurulal Agarwalla vs State Of Orissa on 6 December, 1991
Equivalent citations: 1992CRILJ2959, 1992(I)OLR269
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner faces trial under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (in short the 'Act') for selling adulterated Jira (cumin seed).
2. Undisputedly, sample was collected on 22-2-1984, distributed in three equal parts, kept in three bottles, one part was sent to the Public Analyst for analysis. The said sample on analysis was found to be adulterated, as evident from the report dated 22-3-1984. On receipt of the report, written consent was obtained and Prosecution Report was submitted on 3-5-1984 in the Court of the Sub-Divisional Judicial Magistrate, Sonepur (described hereinafter as the 'SDJM'). A copy of the analyst report was sent to the petitioner with indication that if he so desired, he may apply for getting the second sample analysed by the Director, Central Food Laboratory. The petitioner filed an application to that effect. It appears that sample was sent to the said authority along with sample collected in another case. The Director intimated the SDJM, that samples received on 28-12-1984 were sent without any signature on the accompanying memoranda. Since the memoranda were unsigned, they were not entertained by the Laboratory, and the SDJM was requested by letter dated 23-1-1986 to send the requisite memoranda duly signed. The Director alleged that there was no response to his letter in his reply to letter No. 997 dated 30-9-1989 sent by the Court. Copies of unsigned memoranda were sent to the Court. A request was made by the Director to send two memoranda without further delay, to expedite analysis of samples. Ultimately, after compliance with requisition o1 the Director, the report was received from the Director on 29-1-1991 indicating that the part of sample received was in a decomposed condition, and as such, was unfit for analysis. The petitioner moved for sending the third part of sample to the Director for analysis. Reliance was placed on the provisions of Sub-section 2(c) of Section 13 of the Act for the purpose. The learned SDJM turned down prayer, on the ground that no useful purpose would be served, because the second sample was in a decomposed condition and was unfit for analysis. He relied on certain decisions to come to hold that after certain time sending the third sample would be futile exercise. He therefore, did not feet it necessary and expedient to send the third part for analysis. Thereafter, accused moved for discharge, on the ground that there being no report of the Director, Central Food Laboratory and report of the Public Analyst having lost its force in the eye of law, he was entitled to an order of discharge. Prayer was turned own by the learned SDJM, on the ground that there is no justifiable reason. The petitioner has prayed for setting aside the order refusing to discharge him.
3. Recital of facts would go to show that at every stage, learned SDJM has acted without applying his judicial mind. Merely, because a part of sample collected was found unfit, it was not permissible for the learned SDJM to infer that the third part would also be in that stage, Whether sample collected would be decomposed after a certain time, would depend on the nature of commodity and in the instant case, it was cumin seed. As observed by Supreme Court in State of Tamilnadu v. Shanmugham Chettiar and Anr., 1930 (2) FAC 187 and this Court in Gopinath Baliarsingh v. State, 1989 (1) FAC 37 and Dhadu Behera v. Puri Municipality and Anr.,1991 (II) OLR 241, no hard and fast rule can be laid down regarding any particular time after which sample would not be sent for analysis. The determinative factor would be nature of the commodity. Therefore, learned SDJM was not justified in his conclusion that there was no cause to accede to the prayer of the petitioner to send the third sample for analysis. The decision on which reliance was placed by the learned SDJM related to sample of milk. I direct the learned Magistrate to forthwith send the third sample to the Director so that his report can be obtained. If the Director, Central Food Laboratory finds that the sample is unfit for analysis, that may be a factor in favour of the accused. As observed by the Supreme Court in Chetu Mal v. State of Madhya Pradesh and Anr., AIR 1981 SC 1387 once a request is made by the accused to send a part of sample to the Central Food Laboratory for getting the report of the Public Analyst superseded, and report is received that there is no scope for analysis benefit accrues in favour of the accused. It would all depend as to what report is received from the Central Food Laboratory. Since I am directing for sending the third sample for analysis. I am not inclined to interfere with the order refusing to discharge the petitioner. However, it is open to the petitioner to move afresh after report of the Central Food Laboratory is received. Further proceeding in the trial Court would await receipt of the report from the Director.
The Criminal Misc. Case is disposed of accordingly.