Orissa High Court
Sisinti Haribandhu Patra vs State on 4 February, 1987
Equivalent citations: 1989CRILJ427
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. The petitioner has been convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter referred to as the "Act") for selling adulterated food article and was sentenced to undergo rigorous imprisonment for six months and to pay a fine for rupees one thousand, in default, to undergo further simple imprisonment for three months by the learned Judicial Magistrate First Class, Aska. On appeal, the conviction and sentence have been upheld by the Additional Sessions Judge, Berhampur.
2. The petitioner had a grocery shop in his village which was visited by the Food Inspector (P.W. 1) on 18-9-1978. He had been accompanied by the two Sanitary Inspectors (P.Ws. 2 and 3). After giving their identity, P.W. 1 inspected the articles exposed for sale and suspecting the quality of Besan and groundnut oil, expressed his desire to take sample of those two articles for analysis. P.W. 1 thereafter served the necessary notice and purchased 375 grammes of groundnut oil and 750 grammes of Besan on payment of price thereof and Ext. 2 is the sale receipt granted by the petitioner. P.W. 1 thereafter divided each of the samples into three equal parts, kept them in dry, clean bottles which were duly corked and sealed. He sent one sample bottle of groundnut oil and one such bottle of Besan to the Analyst for analysis. The Analyst on examination opined the groundnut oil to be adulterated whereafter the Food Inspector obtained necessary sanction from the Chief District Medical Officer for filing prosecution and then gave the prosecution report. It is pertinent to note that five days after the sale in question, the petitioner wrote to the Analyst that the oil he had sold was not groundnut oil, but palm oil. This letter of the petitioner is Ext. 9. The report of the Analyst has been exhibited as Ext. 13.
3. The petitioner in his defence did not deny the factum of sale to the Food Inspector, but contended that the Inspector did not follow the procedure laid down under the Act and the Rules framed thereunder, inasmuch as he did not call any independent witness as required under Section 10(7) of the Act. The petitioner also denied the fact that the oil in question was adulterated.
4. The prosecution examined 3 witnesses of whom P.W. 1 is the Food Inspector and P.Ws. 2 and 3 are the two Sanitary Inspectors. The defence examined one witness. Relying upon the evidence of P.Ws. 1, 2 and 3, it has been found by both the courts below that the petitioner sold groundnut oil to the Inspector on the date of occurrence. On the basis of Ext. 13, the report of the Analyst, it has been further found that the oil in question was adulterated and accordingly, the petitioner has been convicted under Section 16 of the Act.
5. Mr. Jena, the learned Counsel for the petitioner, raises the following contentions challenging the conviction of the petitioner:
(i) There has been infraction of the mandatory requirements of Section 10(7) of the Act, inasmuch as the rood Inspector before taking the sample did not call one or more independent persons to be present at the time;
(ii) There has been infraction of Rule 14 of the Prevention of Food Adulteration Rules (hereinafter referred to as the "Rules") since samples of food for the purpose of analysis had not been taken in clean, dry bottles and such infraction vitiates the result of the analysis and also the conviction; and
(iii) The report of the Public Analyst itself is not a report in accordance with law since instead of analysis of the food article with reference to the standard fixed under Appendix B, the Analyst has opined that the food is adulterated since it does not conform to a specification prescribed by the Government of India under Section 22A of the Act.
6. So far as the first contention of Mr. Jena, the learned Counsel for the petitioner, is concerned, the learned Counsel submits that Section 10(7) of the Act casts an obligation on the Food Inspector to call one or more independent persons to be present at the time when he proposes to take sample and in the present case admittedly there were independent neighbours and since the Inspector did not call them, there has been infraction of the aforesaid provision. I do not find any substance in the aforesaid contention. The obligation upon the Food Inspector under the aforesaid provision is to call one or more independent persons to be present. If the Food Inspector calls some independent persons to be witnesses, but none of them is willing to co-operate, then the prosecution is relieved of its obligation under the Act. Under Section 10(7), the Inspector has no power to compel a witness to be present when he proposes to take sample. In fact, I have so decided in the case of Kedar Prasad Gupta v. State (1986) 2 Orissa LR 403, as well as in the case of Maddi Govinda Patro v. State (Crl. Revn. No. 50 of 1982, decided on 19-11-1986). If the evidence of the Sanitary Inspectors as well as the Food Inspector is examined, it is found that they did call the persons who were present in the shop to be witnesses, but they refused and accordingly, it must be held that there has been no infraction of Section 10(7) of the Act. Mr. Jena's contention on this score must, therefore, be rejected.
7. Coming to the second submission of the learned Counsel, I am also of the opinion that the said contention cannot be upheld. Rule 14 no doubt says that the sample in question must be taken in clean, dry bottles. The evidence of the Food Inspector in the present case is that the bottles in which he took samples were clean and dry. Mr. Jena, however, contends that in the cross-examination it has been elicited that the bottles were cleaned and dried two days prior to the taking of samples and according to him the requirement of the law is that the bottle must be cleaned and dried just before or at the time of taking of sample. I am unable to read into Rule 14 what Mr. Jena contends. In view of the categorical assertion of the Food Inspector that the bottles in question were clean and dry, it must be held that there has been no infraction of Rule 14 of the Rules as contended by Mr. Jena.
8. So far as the third contention of the learned Counsel is concerned, I however, find ample force in the same. The word "adulterated" has been defined in Section 2(i)(a) of the Act and Clause (1) thereof stipulates that if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, then the article of food in question shall be deemed to be adultered. "Prescribed" has been defined in Section 2(xii) to mean 'prescribed by rules made under this Act'. Rule 5 of the Rules states that standards of quality of the various articles of food specified in Appendix B to these Rules are as defined in that Appendix and the Appendix is added at the end of the Rules containing the standards of different articles of food. The standard of groundnut oil has been prescribed in item No. A. 17.03. Therefore, an Analyst is required to test the standard of any food article with reference to the standard as given in Appendix B. But the report of the Analyst (Ext. 13) shows that he opined that the sample was adulterated as it did not conform to some specification prescribed by the Government of India under, Section 22A of the Act. Section 22A is the power of the Central Government to give direction as it thinks necessary to a State Government regarding carrying into execution all or any of the provisions of the Act. It is not known how any specification has been made by the Central Government under the said section and also the report of the Analyst does not show what is that order of the Central Government to which he refers. In that view of the matter, it cannot be said that the Analyst examined the food article with reference to the standard prescribed in Appendix-B to find out whether the food is adulterated or! not and consequently, on such report, the conclusion of the Courts below that the food in question was adulterated cannot be sustained. I would accordingly set aside the! conviction and sentence passed against the petitioner.
9. In the ultimate result, therefore, the conviction and sentence passed against the petitioner are set aside and the petitioner is acquitted of the charges levelled against him. This Criminal Revision is allowed. The bail bond furnished by the petitioner stands cancelled.