Orissa High Court
Durga Madhab Behera vs State Of Orissa on 31 October, 1995
Equivalent citations: 1996(1)ALT(CRI)11, 1996CRILJ1261, 1996(I)OLR43
JUDGMENT R.K. Dash, J.
1. The petitioner (hereinafter referred to as the accused') stood prosecuted under Section 16(1)(a) (i) and (ii) of the Prevention of Food Adulteration Act, 1954 (in short, 'the Act') for allegedly dealing in food articles without any valid licence as required under Rule 50 of the Prevention of Food Adulteration Rules, 1955 (in short, 'the Rules') and for his having exposed adulterated 'Arhar dal' for sale for human consumption. The learned SDJM, Titilagarh who tried the case, came to hold that the accused was selling adulterated 'Arhar dal' without any licence and consequently convicted and sentenced him to suffer imprisonment for six months and to pay a fine of Rs. 500/-, in default to suffer further imprisonment for one month.
2. Aggrieved by the aforesaid conviction and sentence, the accused approached the appellate Court and the learned Additional Sessions Judge, Titilagarh on evaluation of the evidence, maintained the lower Court's findings and dismissed the appeal. The accused has therefore, approached this Court by challening the judgments and orders of both the Courts below.
3. The prosecution case may shortly be stated thus :
2. The accused is a grocer in village Parasara in the district of Bolangir. The Food Inspector, Titilagerh (PW 1) inspected his shop on 14-4-1990 and demanded food licence for verification which he could not produce. Thereafter he verified the food articles exposed for sale for human consumption and suspecting 'Arhar dal' and 'atta' kept in tin containers to be adulterated, made a statutory purchase of certain quantities from both the articles and sent the same for chemical analysis. The Chemical Analyser on examination, reported 'Arhar dal' to be adulterated. Thereupon PW 1 prepared prosecution report and placed the same along with relevant documents before the Chief District Medical Officer, Balangir, for obtaining his consent to launch prosecution. The authority on scrutiny of the materials being satisfied that a prima facie case had been made out, gave consent to launch prosecution against the accused for his storing and selling adulterated 'Arhar dal' as also for selling other food articles without any licence.
4. The plea of the accused was denial simpliciter.
5. To bring home the charge to the accused, prosecution examined three witnesses and brought in evidence the report of the Chemical Analyser, sanction order of the Chief District Medical Office and other relevant documents. The trial Court having discussed the evidence held that it has been well proved by the prosecution that the accused was selling adulterated 'Arhar dal' without licence and having so held, he convicted and sentenced him as hereinbefore stated.
6. In the present revision, the question for consideration is the legality and validity of the order of conviction of the accused under Section 16(1)(a)(ii), since he has been acquitted of the offence under Section 16(1)(a)(i) of the Act by the appellate Court. Challenging that part of the findings of the trial Court, learned counsel Shri Mohanty for the accused urges that in view of the expression "other than the article of food referred to in Sub-clause (i)" as mentioned in Sub-clause (ii), the accused could not have been convicted for sale of adulterated Arhar dal without having a licence. Elaborating the point, he contends that licence is required under the Rules to deal in food articles and not adulterated food, the reason being that no licence is issued for sale of adulterated food.
7. Section 7 that creates offences provides that no person shall manufacture for sale, or store, sell or distribute any adulterated food any misbranded food, any article of food without a licence, any article of food the sale of which is for the time being prohibited by the authority and any article of food in contravention of any other provision of any of the Act and the Rules, and any adulterant. For contravention of the provisions punishment is prescribed in Section 16. To appreciate the question raised, it is desirable to refer to Section 16, necessary for the purpose as under :
"16(1). Subject to the provisions of Sub-section (1-A), if any person-
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food--(i) which is adulterated within the meaning of Sub-clause (m) of Clause (i-a) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in Sub-clause (i) in contravention of any of the provisions of this Act or of any rule made thereunder; or x x x x"
A plain reading of the aforesaid provision clearly indicates that a vendor can be proceeded against for contravention of Sub-clauses (i) and (ii) in the same proceeding and not concerning very same-adulterated food article. The expression "other than art article of food referred to in Sub-clause (i) used in Sub-clause (ii)" may be noticed. Sub-clause (i) refers to those articles of food which are adulterated, misbranded or the sale of which is prohibited by the Food and Health Authority, Sub-clause (ii) takes out these articles from its purview and refers to any other article of food. The language employed in Section 16 is very clear and explicit and no other interpretation is permitted to take a different view. A conjoint reading of both Sub-clauses (i) and (ii) of the said section makes it clear that a vendor can be punished under the former sub-clause if he sells, stores or distributes food which is adulterated, misbranded or sale of which is prohibited and so far as the latter sub-clause is concerned he can be punished thereunder if he sells, stores or distributes food articles other than those mentioned in Sub-clause (i). Rule 50 of the Rules prohibits manufacture, sale, etc. of the prescribed food without a licence. So if a vendor sells any such food article without a licence as required under the said rule, then he shall be punished under Clause (ii). An authority grants licence for sale of 'food' as defined in Section 2(v) of the Act and not adulterated food. So if he deals in article of food without a licence and that article of food is found to be adulterated, then he cannot be held guilty and convicted under both the Sub-clauses (i) and (ii) since, as has been observed earlier, licence is granted by the authority for sale of food and not adulterated food. Similar question as in the present case came up for consideration before the Delhi High Court in the cases of Municipal Corporation of Delhi v. Darshan Kumar and State : 1979 (I) FAC 124, Sheo Raj v. State and Ors. : 1991 (I) FAC 220, and Municipal Corporation of Delhi v. Jawala Prasad: 1984 (I) FAC 299. In all these cases the Court interpreted Sub-clauses (i) and (ii) and observed that a person cannot be convicted thereunder for sale of very same adulterated food without a licence. This Court had also occasion to deal with the very same question in the case of Jagannath Singh v. State of Orissa : (1990) 3 OCR 379. In that case the accused had beers convicted under Sections 16(1)(a)(i) and 16(1)(a)(ii) of the Act for selling adulterated losenges. Speaking for the Court Hon'bie A. Pasayat, J. held that when a person sells adulterated food, though he may not have a licence, the proper procedure to deal with such an offence would he by resorting to Sub-clause (i) and not Sub-clause (ii). in support of such finding he relied upon the aforementioned decision In 1979 (I) FAC 124 and some others. Applying the aforesaid decided principles to the present case, I would hold that the finding of conviction of the accused recorded by the trial Court for sale of 'Arhar dal' without a licence is unsustainable, being contrary to the provisions of the Act.
9. In the result, the revision is allowed and the judgment and order of conviction passed by the trial Court and confirmed by the appellate Court are set aside.