Jharkhand High Court
Ajeet Chandra Manjhi vs The State Of Jharkhand ... ... Opposite ... on 24 January, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 697 of 2002
1. Ajeet Chandra Manjhi
2. Manik Chandra Manjhi
Both sons of late Surendra Nath Manjhi, residents of village
Kalimati, Police Station - Chirkunda, District - Dhanbad
... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Saurav Kumar, Amicus Curiae For the Opp. Party State: Mr. Manoj Mishra, Advocate
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Through Video Conferencing
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08/24.01.2022 Heard Mr. Saurav Kumar, learned Amicus Curiae appearing on behalf of the petitioners.
2. Heard Mr. Manoj Kumar Mishra, learned counsel appearing on behalf of the opposite party - State.
3. The present criminal revision application has been directed against the judgment dated 25.11.2002 passed in Criminal Appeal No. 138 of 2000, by learned Additional Sessions Judge, Fast Track Court No.2, Dhanbad whereby he has been pleased to dismiss the appeal filed by the petitioner and has confirmed the conviction and sentence of the petitioners passed by learned Sub-Divisional Judicial Magistrate Dhanbad in P.F.A. Case No. 34 of 1992 vide judgment dated 21.09.2000.
4. The petitioners have been convicted for offence under Section 7 / 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and have been sentenced to undergo rigorous imprisonment for a period of six months and fine of Rs.2,000/- each with default clause. Argument of the petitioner 2
5. The learned Amicus appearing on behalf of the petitioners has submitted that the Public Analyst Report which accompanied the prosecution report referred to discrepancy in connection with the sample test of mustard oil only with respect to the acid value and it was shown to be 6.5 and the permissible limit is 6. He also submits that the sanction for prosecution was also granted in connection with variance in the acid value mentioned in the report of Public Analyst. The second sample was sent for examination by the Central Food Laboratory at Kolkata and in the said report, the acid value was found to be within limit i.e., 2.4, but values in connection with other items i.e., Butyro-refracto-meter reading at 40 º C: Bellier test (Turbidity temperature - acetic acid method) and saponification value were found to be out of limit and were found to be 60.8, 28.4 ºC and 179.5 respectively. Although the permissible limit for such items of test as per the impugned order itself is 58 to 60.5; 23 ºC to 27.5 º C and 168 to 177 respectively. He submits that the sample was collected on 28.02.1992 from the shop of the petitioners and were sent to the Public Analyst at Central Food Laboratory, Kolkata in December, 1993 i.e. after 1 year and 9 months and the report for the same was submitted on 18.01.1994. He further submits that neither the Public Analyst for Coal Mining Area Development Authority, Dhanbad nor the Public Analyst from Kolkata have been examined in the present case.
6. The learned Amicus Curiae submits that the entire prosecution case is based on the evidence of 3 witnesses, who were the official witnesses and have collected the sample and there has been no independent witness. However, during the course of arguments, it transpired that the non-availability of independent witness has been explained by the prosecution 3 witnesses and this aspect of the matter has been considered by the learned court below while convicting the petitioner.
7. The learned Amicus Curiae submits that the very reason for which the prosecution was initiated was with regard to variation in "acid value" and the same was found to be in conformity when the subsequent report had come and non- examination of both the Public Analysts before the learned court below has deprived the petitioners to cross-examine them on the point regarding the scope of variation in the parameters which were found to be varied in the subsequent report, although, in the original report such parameters were found to be in conformity with the prescribed norms. He submits that if the Public Analyst would have been cross examined, the factum regarding the reason for variation could have been brought on record. The learned amicus submits that in such circumstances, the non-examination of the Public Analyst is fatal to the prosecution case and petitioners are entitled to benefit of doubt. He submits that this aspect of the matter has not been properly considered by the learned courts below.
8. The learned amicus submits that before the learned appellate court also the plea of non-examination of the Public Analyst was raised in para 9 of the impugned order, but the same has not been considered while upholding the conviction and sentence of the petitioners vide para 10 of the appellate court's order.
Argument for the State
9. Learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and there is no scope for re-appreciation of the evidences on record and coming to a different finding. However, during the course of argument, it is not in dispute that none of the Public 4 Analyst has been examined from the side of the prosecution and the reason for launch of prosecution against the petitioners in the prosecution report was only in connection with variation of "acetic value" which was found to be in conformity as per the report of Central Food Laboratory, Kolkata. However, he submits that there were other variations as per the report of the Central Food Laboratory, Kolkata, though, they were found to be in conformity in the test report given by Local Public Health Authority which was the basis for launching the prosecution.
Findings
10. As per the scheme of the Act, after a Food Inspector collects sample of food as per the prescribed procedure, one part of the sample is sent to the Public Analyst for analysis. Under Section 13 the Public Analyst sends his report to the Local (Health) authority. If the report of the Public Analyst shows that the article of food is adulterated, then a prosecution may be instituted against the concerned person and after institution of prosecution, the Local (Health) Authority is required under Sub-section (2) of Section 13 to send a copy of the report to the concerned person informing him that he may apply to the Court within 10 days from the date of receipt of the copy of the report to get the sample analysed by the Central Food Laboratory. The accused may then, through Court, get a sample analysed by the Director of Central Food Laboratory. The Director, after analysis, is required to send a certificate to the Court within one month from the date of receipt of the sample specifying the result of the analysis. Sub-section (2-D) of Section 13 provides that until the certificate of the result of the analysis from the Director of the Central Food Laboratory is received, the Court shall not continue with the proceedings pending before it in relation to the prosecution. Sub-section (3) of Section 13 provides that the certificate issued by the Director 5 of Central Food Laboratory shall supersede the report of the Public Analyst. The proviso to Sub-section (5) of Section 13 provides that the report of the Director of the Central Food Laboratory, shall be final and conclusive evidence of the facts stated therein except in a case where the proviso to Sub-section (1A) of Section 16 is attracted, which is not the case here. Section 20 of the Act, inter alia provides that no prosecution for an offence under the Act, not being an offence under Section 14 or Section 14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special orders, by the Central Government or the State Government.
11. This Court finds that the prosecution was lodged on the basis of the report of Public Health Authority, Dhanbad pursuant to non-confirmation of the prescribed standard in the "acid value" which was found to be out of limit, though, admittedly, other specifications were found to be in order. It is not in dispute that the prosecution was launched on the basis of the report of Public Health Authority, Dhanbad and the sanction for prosecution was granted only on account of discrepancy in "acid value". It is also not in dispute that at the instance of the petitioners, the second sample was sent for analysis to Central Food Laboratory, Kolkata in December, 1993 i.e. after one year and nine month and the report was submitted before the learned court below vide report dated 18.01.1994. As per the report of Central Food Laboratory, Kolkata, the "acid value" was found to be within prescribed standards, but some other parameters as stated above by the learned amicus were found to be out of limit. The comparative chart of the relevant items giving the prescribed limit; finding of the report by the Public Analyst and finding of the report of Director of Central Food Laboratory, Kolkata is as under:
6Specification Standard value Report of public Report of central as per analyst enclosed food laboratory prevention of with prosecution Kolkata dated food report 18.01.1994 adulteration act and the rules Butyro-refractometer 58.0 to 60.5 59.9 60.8 reading at 40°C (Within prescribed (Above prescribed limit) limit) Saponification Value 168 to 177 173.2 179.5 (Within prescribed (Above prescribed limit) limit) Acid value Not more than 6.0 6.5 2.4 (Above prescribed (Within prescribed limit) limit) Bellier test 23.0°C to 27.5°C 25°C 28.4°C (Turbidity (Within prescribed (Above prescribed temperature - Acetic limit) limit) acid method)
12. In view of Section 13(3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst.
13. It is not in dispute that the present case was filed after due consent/sanction from the competent authority on the basis of report of public analyst of the local health authority indicating variation only in "acid value".
14. The question in this case is, whether, on the basis of the same consent/sanction, the prosecution could have continued even after receipt of the report of the Central food Laboratory where the "acid value" was found to be within permissible limit and there were variations in other three specification. Thus, the point to be examined is what will be the fate of the prosecution started on the basis of a report of the Public Analyst, if during the continuance of the proceeding, it is found that the unfavourable findings recorded against the accused in the report of the Public Analyst fully stand superseded in favour of the accused, by the report of the Director of the Central Food Laboratory, as has happened in the present case.
15. The present case is not a case where the variation in the certificate of the Director, Central Food Laboratory is of a 7 nature which does not alter the foundation of the nature of adulteration for which written consent for prosecution was given on consideration of the contents of the report of the Public Analyst, in such case, no fresh consent would be required. In the present case, the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory is such that it completely alters the nature of allegation for which the prosecution was initially launched and accordingly, the very foundation of deviation from the prescribed standards of "acid value" has been taken away by the report of Central Food Laboratory and new items of deviations from the standards have been pointed out in the report of Central Food Laboratory . Such new allegation of deviations certainly requires fresh application of mind by the appropriate authority for grant of sanction for prosecution in the light of the findings of the Director, Central Food Laboratory before the prosecution against the petitioners could be continued. Admittedly, no fresh consent/sanction has been sought for in the light of the new allegations of deviations from the standard as pointed out in the report of Director, Central Food Laboratory.
16. This Court is of the considered view that in a case where the prosecution is started on the basis of a report of the Public Analyst with the consent of the appropriate authority but such report of the Public Analyst is totally overturned and negatived to the point of no offence by the subsequent report of the Director of Central Food Laboratory thereby requiring the original prosecution to fail, but such report of the Director however discloses certain new facts on the basis of which a prosecution may be tenable under law, such new facts, at the first instance, should be considered by the appropriate authority for recording whether he would consent to 8 prosecution on the basis of such new facts disclosed by the report of the Director. In such circumstances, it is not desirable that a prosecution already launched under the Act should be dismissed straightway simply because the report of the Public Analyst stands overturned to the point of no offence by the test report of the Director of Central Food Laboratory, which nevertheless discloses new facts indicating an offence under the Act. In such circumstances, the question of fresh consent should be considered by the appropriate authority in the existing proceeding itself and the Magistrate should give an opportunity to the prosecution to obtain the consent of the appropriate authority for continuance of the prosecution on the basis of new facts regarding the nature of adulteration disclosed in the test report of the Director of Central Food Laboratory where the success of the prosecution itself depends on such new facts.
17. The fact remains that the prosecution sanction was granted for discrepancy in "acid value" as per test report of the local health authority, which was found to be in conformity with the prescribed standard as per the test report issued by the Director of Central Food Laboratory. Thus, the very basis of launch of prosecution and the sanction for prosecution seized to exist on account of the subsequent and superseding test report of Central Food Laboratory. In such circumstances, the conviction of the petitioners on the basis of the prosecution sanction for discrepancy in "acid value "cannot be sustained in the eyes of law and calls for interference in revisional jurisdiction of this court to secure the ends of justice. In order to proceed after obtaining the test report of the Director of Central Food Laboratory, which mentioned deviation from prescribed standards in other items, fresh sanction was required to be taken from the competent authority which has admittedly not been done in the present case.
918. This Court is of the considered view that sanction for prosecution requires preliminary satisfaction of the competent authority on the point of launching of prosecution by applying mind to the essential facts and thus grant of sanction for prosecution is not a mere formality. In the facts and circumstances of the present case where the test report of the Director of Central Food Laboratory discloses a totally distinct violation, the prosecution could not have been continued on a totally new facts / discrepancies about the nature of adulteration without obtaining necessary sanction from the competent authority on the basis of the test report of the Director, Central Food Laboratory.
19. Accordingly, the matter is remitted to the learned trial court who upon receipt of the records is directed to adjourn the proceeding for a reasonable period not exceeding two months so that the prosecution may in the meantime place the test report of the Director of Central Food Laboratory before the appropriate authority for consideration of the question of consent for continuance of prosecution on the basis of such new facts disclosed in the test report of the Director. If within the aforesaid time consent is produced, or not produced, the learned trial court will then proceed, in either case, in accordance with law.
20. Consequently, the impugned judgments are hereby set aside with aforesaid observations and directions. This revision petition is accordingly disposed.
21. Pending interlocutory application, if any, is closed.
Appreciation for Amicus Curiae and Payment
22. Before parting, this Court observes that vide order dated 22.11.2021, Mr. Saurav Kumar, Adocate was appointed as an amicus curiae in Cr. Revision No. 697/2002. This Court records its appreciation for the valuable assistance accorded by the 10 learned Amicus Curiae in final disposal of the case. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of the legal remuneration to him upon submission of bills as per the usual norms.
23. The office is directed to provide a copy of this order to Mr. Saurav Kumar, learned Amicus Curiae and also to the learned Secretary, Jharkhand High Court Legal Services committee.
24. Let the lower court records be sent back to the learned court below.
25. Let a copy of this judgment be communicated to the learned court below through FAX/E-mail.
(Anubha Rawat Choudhary, J.) Saurav/Mukul