Orissa High Court
State Of Orissa vs Ramwatar Agarwalla And Anr. on 9 January, 1995
Equivalent citations: 1995CRILJ2053
ORDER P.C. Naik, J.
1. The order of discharge dated 24-9-1987 passed by the Sub-divisional Judicial Magistrate, Balasore in 2(c)CC case No. 145 of 1983 discharging the opposite parties/accused persons under Section 245(1), Cr. P.C. having been brought to the notice of this Court and the Court being of the opinion that the said order is not proper, a suo motu revision was initiated and accordingly, notices were issued to the accused persons to show cause why the order of discharge be not set aside. On notice being served, the opposite parties (accused persons) have entered appearance through their counsel.
2. The facts of the case in brief are that on receiving a prosecution report under Section 16(1) of the Prevention of Food Adulteration Act (hereinafter referred as 'the Act') against the present opposite parties, 2(c)CC case No. 145 of 1983 was registered in the court of the Chief Judicial Magistrate, Baiasore and notices were ordered to be issued for appearance of opposite parties. Initially, the case was before the C.J.M., but thereafter it was transferred to the file of the S.D.J.M., Baiasore. Two witnesses, namely, the Food Inspector and the Sanitary Inspector were examined on behalf of the prosecution before framing of the charge. Thereafter, parties were heard on the question of framing of charge against the opposite parties. Before the learned S.D. J.M., the learned counsel for the opposite parties had contended that no case for framing of charge was made out because the goods sold vide cash memo Ext. 2 were not meant for human consumption. This contention was advanced on the basis of a printed endorsement on the cash memo that the goods sold under the cash memo were not meant for human consumption. His further contention was that there was non-compliance of the provisions contained in Section 10 of the Act as no independent (one or more) persons were not called for their signatures were taken on the 'punch name' at the time when the sample was lifted. On behalf of the prosecution it was contended that it was not possible to obtain the signatures of independent persons because the persons present on the spot refused to co-operate. The learned S.D.J.M. by placing great emphasis on the endorsement contained in Ext. 2 that 'goods sold vide this memo are not meant for human consumption' and this endorsement being an admitted position, was of the opinion that as the goods were not meant for human consumption, no offence under the Act could be made out against the accused persons. He was also of the opinion that there was non-compliance of the provisions contained under Section 10 of the Act. He was accordingly of the opinion that no case under Section 16(1) of the Act has been made out which, if unrebutted, would warrant their conviction. Accordingly, the opposite parties were discharged.
3. Mr. J. R. Das, learned counsel for the opposite parties vehemently argued that the order of discharge was proper and no case for interference was made out. He contends that the order of discharge can be upheld on 2 grounds : (I) there was non-compliance of provisions of Sub-section (7) of Section 10 of the Act in as much as no independent witness was either summoned or his signature obtained and (ii) as the goods sold were not meant for human consumption, no offence under the Act could be said to have been made out against the accused persons. In support of the first contention, reliance was placed on the cases of Dasarathi Pati v. State of Orissa, 1978 Cut LR (Cri) 184 and Narasingh Sahoo v. State, 1978 Cut LR (Cri) 380 wherein it has been held that the provisions contained in Sub-section (7) of Section 10 are mandatory and non-compliance of the same would, vitiate the conviction. He also places reliance on the case of Babulal Hargovindas v. State of Gujrat, AIR 1971 SC 1277 : (1971 Cri LJ 1075), wherein it has been held that the provisions of Section 10(7) being salutary should be complied with by the Food Inspector. Relying on the above decisions, he contends that non-compliance of the mandatory provisions vitiates the trial and as such, the order of discharge cannot be said to be illegal.
4. Having considered the submissions made by the learned counsel for the opposite parties and in view of the facts and circumstances of the case, I am of the opinion that the order of discharge cannot be sustained. It is no doubt true that the provisions contained in Sub-section (7) of Section 10 are mandatory in nature and, as observed by this Supreme Court, being salutary, should be complied with by the Food Inspector, but the question is whether non-compliance of the provisions even in a case where factum of purchase is not challenged, would vitiate the trial. In the instant case, the factum of purchase at this stage, is not challenged by the accused persons. On the other hand, it is more or less admitted that the sale was made under case memo Ext. 2. As a matter of fact, the specific case of the opposite parties is that as the cash memo contained a printed endorsement that the goods sold under the cash memo were not meant for human consumption, no case under the Act was made out. It is, therefore, a case where the factum of purchase is, not in dispute at this stage.. This being the position, in my opinion, non-compliance of the provisions contained in Sub-section (7) of Section 10 of the Act could not be a ground for discharging the accused persons at the stage of framing of the charge.
5. In the case of State of U.P. v. Hanif, AIR 1992 SC 1121 : (1992 Cri LJ 1429) while considering Section 10(7) of the Act, the Apex Court has held as under (at pp. 1431 and 1432 of Cri LJ):
".... It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty his evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on the proven prosecution case. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the Bench witnesses seeking corroboration to the evidence of the Food inspector. In this case the factum of purchase by the Food Inspector was not disputed. Even in the appellate Court, the contention raised was regarding the delay in sending the public analyst report to the authority and laying the prosecution, but no other controversy was raised. Under these circumstances, we find no substance in the contention that the evidence of Food Inspector must be corroborated by independent evidence."
In the instant case, as the factum of purchase has not been disputed, non-compliance of the provisions contained in Sub-section (7) of Section 10 of the Act, could not, at this stage, be said to be fatal to the prosecution. It is no doubt true that in the case of Babulal Hargovindas (1971 Cri LJ 1075) (supra), the Apex Court has held that the provisions of subsection (7) of Section 10 of the Act being salutary should be complied with by the Food Inspector. But, the Apex Court has further held that the Food Inspector is not an accomplice and his evidence alone if believed can be relied on for proving that the samples were taken as required by law. The provisions of Sub-section (7) of Section 10 are enacted to safeguard the allegations of excessed or malafides on the part of the Food Inspector. But in a case where the factum of purchase is not disputed, the non-compliance of the provisions cannot, in my opinion, as observed earlier, be fatal.
6. In the case of Ram Labbaya v. Municipal Corporation of Delhi, AIR 1974 SC 789 : (1974 Cri LJ 672), while considering the provisions contained in Sub-section (7) of Section 10, the Apex Court, in view of the legislative history of the amendments of this section, I was of the opinion that though it is true that while taking section under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to be present at the time of taking such sections, yet non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. I am, therefore, of the opinion that non-compliance with the provisions contained in Sub-section (7) of Section 10 would have to be considered in the light of the facts and circumstances involved in each case. It cannot be laid down as a general proposition that irrespective of the facts involved and irrespective of the fact whether or not the factum of purchase is disputed, non-compliance with the provisions contained in Sub-section (7) of Section 10 of the Act would vitiate the trial. For reasons aforesaid the decisions in the cases of Dasarathi Pati (1978 Cut LR (Cri) 184) and Narasingh Sahoo (1978 Cut LR (Cri) 380) (supra) relied upon by the opposite parties cannot be of any assitance to them.
7. The other ground for discharging the accused persons cannot also be sustained. If the contention that a printed endorsement on a cash memo that the goods sold are not meant for human consumption is accepted, then every dealer dealing in articles of food would be free to sell adulterated articles of food and get over the provisions of the Act by issuing cash memos with an endorsement that the articles sold under the cash memos are not meant for human consumption. The Act would, therefore, become a dead letter. It is really surprising as to how this contention found favour with the learned S.D.J.M. The Act was enacted with the object and the purpose to eliminate the danger to human life from the sale of unwholesome articles of food. It is enacted to curb the widespread evil of food adulteration and is a legislative measure of social-defence. As observed by the Apex Court, it is intended to suppress a social and economic mischief an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration being a socio-economic offence, construction appropriate to a social defence legislation, is, therefore, one which would suppress the mischief aimed at by the legislation, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. If the contention of the learned counsel for the opp. parties is accepted and the order of discharge is maintained, the Prevention of Food Adulteration Act would, as observed earlier, be a dead letter.
8. The learned counsel for the opp. parties also contended that in view of the fact that the order of discharge was passed way back in September, 1987, it would not be proper to set aside the order and require the opp. parties to face a trial after a long lapse of time. I am not impressed by this contention, it is no doubt true that much time has elapsed. But this cannot be a ground for maintaining the order of discharge which for the reasons stated above, is wholly unjustified and improper as already observed, the grounds on which the order of discharge is based are wholly unsustainable. Under the circumstances, it will be hazardous to uphold the order. The accused have to face the trial for the offences under the Act. In view of the facts involved in this case and the contentions raised by the opposite parties, it cannot be said that a prima facie case for framing a charge has not been made out more so when there is no challenge to the factum of sale at this stage.
9. In the result, the revision is allowed. The order of discharge dated 24-9-87 is set aside and the matter is remitted back to the Court of the S.D.J.M. who shall now frame a charge and proceed with the trial in accordance with law. The opp. parties shall appear before the learned S.D.J.M. on 6-2-95 and the learned Magistrate shall thereafter fix suitable dates and proceed with the trial expeditiously. The lower Court records be sent back forthwith.