Orissa High Court
Prafulla Kumar Mohanty vs State Of Orissa on 10 July, 1991
Equivalent citations: 1991(II)OLR260
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner faced trial for an offence Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in short 'the Act') read with Section 7 (i) and (v) thereof for having exhibited for sale of adulterated Turmeric powder and Til oil for human consumption.
2. The undisputed position is that on 16-8-1986 samples were collected by the Sanitary Inspector (Food) attached to Chief District Medical Officer, Phulbani in respect of Til oil, Mustard oil, Pea powder and Turmeric powder on suspicion that they were adulterated and unfit for human consumption. The samples collected were sent to the Public Analyst Orissa, who opined that the Turmeric powder and Til oil samples collected indicated adulteration. A copy of the Public Analyst's report was supplied to the petitioner.
3. On evaluation of the evidence and on consideration of the documents, the learned Judicial Magistrate, First Class, G, Udayagiri found the petitioner guilty and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default to undergo R.I for one month more.
In appeal the learned Sessions Judge found that the prosecution could not establish that the Til oil exhibited - or sale was intended for human consumption and therefore, in view of the decision of this Court in 67 (1989) CLT 77: Laxmidhar Sahu v. State of Orissa, held that no conviction can be maintained. He, however found that the Turmeric powder was adulterated and therefore, the conviction and sentence were in order.
4. Two points were urged by the learned counsel for the petitio- ner, viz.- the statutory mandates of Rule 18 of the Prevention of Food Adul- teration Rules, 1955 (in short 'the Rules') have not been complied with, and while recording the statement of the petitioner Under Section 315, Cr.P.C. requisite materials were not brought to his notice and thereby he has been prejudiced.
The learned counsel for the State, however, submits that the offence involved is so heinous that these technicalities should not receive any consideration.
5. I shall first consider the contention relating to whether there was non-compliance with the statutory mandate of Rule 18 of the Rules. According to the said Rule, the prosecution must establish despatch of the documents referred therein separately. In the absence of acceptable proof, it must beheld that the accused is entitled to an acquittal. Similar view was also taken by me in 70 (1990) CLT 164 : Srinivas Pradhan v. State of Orissa. In the facts of the present case, samples of more than one food article were collected. It was claimed that the memorandum and the impressions of seals were sent by separate registered packets. The prosecution has remained content by producing only two postal receipts. No material has been shown as to why the acknowledgement slips and the the postal receipts for all the samples have not been produced to test the correctness of the assertion that the memorandums and impressions were sent separately. The evidence of PW 1 on which reliance has been placed by the Courts below for coming to the conclusion that as required under Rule 18 they were sent separately in respect of each of the samples The provisions of Rule 18 have been held to be mandatory by the Supreme Court in the case of State of Maharashtra v. Rajkaran : 1988 SCC (Crl). 47. It was held that the prosecution must establish despatch of the memorandum and impression of seals referred to in Rule 18, separately.
To add the vulnerability of the prosecution I find that the state- ment of the accused Under Section 313 Cr.P.C. was recorded in a really slipshod manner. As observed by me in 70 (1990) CLT 558 : Nidhi Sahu v. State. in a case involving adulteration of food articles, non-indication of the inculpatory material in its relevant facts adds to vulnerability of the. prosecution case.
In the instant case, the question asked lacked material particulars and therefore, the petitioner has been definitely prejudiced. This also has independently added to non-sustainability of the conviction. I, therefore, set aside the conviction and sentence and direct acquittal of the petitioner.
The criminal revision is allowed. Bail bond be discharged. Revision allowed.