Orissa High Court
The State Of Orissa vs Jeeban Lal on 14 March, 1986
Equivalent citations: 1986(I)OLR421
JUDGMENT K.P. Mohapatra, J.
1. The judgment of acquittal passed by the learned Sub-Divisional judicial Magistrate, Jeypore, in a case under Section 16(1)(a) of the Prevention of Food Adulteration Act ('Act' for short) is under challenge.
2. The respondent had a sweet shop within the municipal area of Jeypore On 16.12.1976 he had exposed for sale an item of sweet named Boondi. P. W 3. the Food Inspector-cum-Health Officer of jeypore Municipality visited the shop at about 10 a.m. along with P. W. 1, a Sanitary Inspector of Jeypore Municipality. He suspected that Boondi was adulterated. Therefore, he served a notice under Section 11 of the Act on the respondent and purchased 1500 grams of Boondi from him on payment of Rs 12/- for the purpose of sending the same to the public Analyst. He divided the samples into three equal parts and kept the same in three dry and clean bottles. The bottles were properly packed, wrapped and sealed. One of the samples was sent to the Public Analyst on 16.12.1976 and his report dated 2.2.1977 when received, disclosed that the sample Boondi was adulterated. P. W. 3 obtained sanction from the appropriate authority and submitted prosecution report against the respondent for an offence under Section 16(1)(a) of the Act.
3. The defence of the respondent was denial of the charge brought against him.
4. The learned judicial Magistrate found the charge not proved and while acquitting the respondent recorded the following findings :
1) The respondent had a sweet stall within the limits of Jeypore Municipality.
2) There was no evidence that Boondi exposed for sale was meant for human consumption.
3) The bottles in which the sample Boondi was kept were not cleaned in the presence of witnesses, although they were properly sealed.
4) The report of the Public Analyst (Ext. 8) was not challenged.
5) Section 13(2) of the Act was not complied with by service of a copy of the report of the Public Analyst on the respondent.
6) The sanctioning authority did not apply its mind before according sanction for prosecution.
It is pertinent to note that the learned Court below did not specifically discuss nor record a distinct finding on the basis of the report of the public Analyst (Ext. 8) to the effect that the sample Boondi was adulterated as it did not conform to the standard prescribed in Rule 28 of the Prevention of Food Adulteration Rules (referred to as the 'Rules').
5. During hearing of this appeal learned counsel appearing for both parties confined their argument to the following three points :
1) Whether the sample Boondi was adulterated as opined by the Public Analyst in his report (Ext. 8) because, it did not conform to the standard prescribed in Rule 28 of the Rules;
2) Whether a copy of the report of the Public Analyst was served on the respondent in compliance with Section 13(2) of the Act and Rule 9-A of the Rules both of which are mandatory in character; and
3) Whether the report of the Public Analyst was delivered within a period of 45 days in compliance with Rule 7 (3) of the Rules.
6. It indeed appears from the impugned judgment that the report of the Public Analyst (Ext. 8) was not challenged during trial because, the Public Analyst had reported that the sample Boondi was adulterated which gave rise to the assumption that the fact of adulteration was established. While Mr. N.C. Panigrahi learned Additional Government Advocate urged that examination of this point should not be revived because of the finding of the learned Court below, Mr. S.K. Padhi learned counsel appearing for the respondent emphasised that the respondent is liable to be convicted under Section 16(1)(a) of the Act only if the article of food meant for human consumption was adulterated. It is, therefore, necessary for this Court to re-examine the matter so as to record a positive finding as to whether the report of the Public Analyst with regard to his opinion of the Boondi being adulterated is acceptable in view of the standard prescribed in Rule 28 of the Rules.
I am convinced with the argument advanced by Mr. S.K. Padhi for two reasons. First, there was no discussion by the learned Court below as to whether the report of the Public Analyst (Ext. 8) was acceptable so as to hold that the sample Boondi Was adulterated as it did not conform to the standard prescribed by Rule 28 and second unless a positive finding is recorded to the effect that the sample Boondi was adulterated, the respondent cannot be held guilty of the charge framed against him and convicted. I, therefore, consider it appropriate to examine If the report of the Public Analyst (Ext. 8) can be accepted according to law and on the basis of it can be-held that the sample Boondi which was undoubtedly meant for human consumption and exposed for sale was adulterated, because it did not conform to the-standard prescribed in Rule 28
7. The report of the Public Analyst (Ext. 8) dated 2.2.1977 is as follows :
"General condition :-Fungus growth-not present Test for starch__ positive Test for sucrose_ positive Butyro- refractometer reading of the extracted fat 40 C_566 Colouring matter :-Non-permitted acid coal-tar dye of yellow variety__present ...the sample is adulterated as a non-permitted coal-tar dye is used on it".
Rule 28 so far as it relates to the present case is extracted below :
"28. Coal-tar food-colours which may be used. No coal-tar food-colour or a mixture thereof except the following shall be used in food:
Colour Common name Colour Index Chemical
(1956) Class
XX XX XX XX
2. Yellow Tartrazine 19140 Pyrasolone
Sunset Yellow FCF 15985 Azo
XX XX XX XX
A consideration of the report of the Public Analyst and Rule 28 will thus show that use of coal-tar dye as a food-colour is not altogether prohibited The Chemical Classes of Specific colour index going by specific names mentioned in Rule 28 are permissible coal-tar food-colours. Although the Public Analyst opined in his report (Ext. 8) that non-permitted coal-tar dye was used in the food sample, yet he did not analyse the chemical class and colour-Index of the coal-tar dye so as to indicate that the same did not conform to the standard prescribed in Rule 28. Had he arrived at the conclusion that the coal-tar food-colour a yellow variety-was not of the standard prescribed in Rule 28, then his opinion would have been above reproach and could not be challenged. Unfortunately, he did not make a chemical anlaysis of the coal-tar food-colour used in the sample Boondi to determine its chemical class, thereby leaving a lacuna. on interpretation of his opinion doubt can be entertained and it is possible to arrive at a different reasonable conclusion. In this event it would not, in my view, be permissible according to law, to record a positive finding that the food sample did not conform to the standard prescribed in Rule 26 and so it was adulterated. This being the position, the view which goes in support of the respondent has to be accepted and he cannot be convicted for the offence under Section 16(1)(a) of the Act.
8. Learned counsel appearing for both parties did not dispute the mandatory character of the provisions of Section 13(2) of the Act and the directory nature of Rule 9-A of the Rules. But while Mr. N.C. Panigrahi, learned Additional Government Advocate contended that irregularity or laxity with regard to compliance of the aforesaid provisions is not fatal to the prosecution, Mr. S.K.. Padhi, learned counsel for the respondent urged that non-compliance or irregularity in compliance of the aforesaid provisions causing serious prejudice to the accused shall vitiate the trial. In view of the contentions raised i.e. following points arise for consideration :
1) whether non-compliance of Section 13(2) of the Act and Rule 9-A of the Rules is fatal to the prosecution and vitiates the trial; and
2) whether any irregularity or laxity in the mode of compliance of Section 13(2) of the Act and Rule 9-A of the Rules shall also be fatal to the prosecution vitiating the trial.
9. Rule 9(j) before its omission on 4.1.1977 and Rule 9-A, since its incorporation in the Rules with effect from the same date, are almost in pari material In 47(1979) CLT 202, B. Bhimaraju Patra v. State, this Court held that Rule 9(j), as it then stood, made it obligatory on the part of the Food Inspector to send by registered post a copy of the report received in Form III of the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report Though not specifically observed, Rule 9(j) was given a mandatory character. In 1980 Cri. L. J. 51, P. K. Moorthy v. Food Inspector, Kumbakonam Municipality, a Division Bench of the Madras High Court held that the provisions of Section 13(2) of the Act are mandatory and Rule 9(1), as amended, makes it obligatory to send a copy of the report of the Public Analyst to the person from whom the sample was taken. Non-compliance with the aforesaid provisions will vitiate the entire proceedings. Relying on the dictum laid down in P. K. Mohanty's case (supra), an identical view was taken by a learned single judge of the Madras High Court in 1980 Crl. L. J. 1198, State V. Sambandam. In 1981 Crl. L. J. 1225, P. Chochalingam and Ors. v. Food Inspector, Trivandrum and Anr., a learned single Judge of the Kerala High Court held that the provisions of Section 13(2) of the Act are mandatory in nature. In 1982 Crl. I. J 963, Kandasami v. Food Inspector Athoor a Division Bench of the Madras High Court reiterated the earlier view of the mandatory character of the provisions of Section 13(2), of the Act and further held that both under Section 13(2), as well as, Rule 9-A, the forwarding of the report by the local health authority has to be done after the institution of the prosecution and not before. In 1983 Crl. L. J. 770, State of Maharashtra v. B. B. Kothavada, a learned single Judge of the Bombay High Court held that Rule 9-A is somewhat analogous to Rule 9(j) as it stood and the contravention thereof will entail the acquittal of the accused. In 1984 Crl, L.J. 1272, State of Himachal Pradesh v. Loki Nand, it was held that Section 13(2) of the Act gives a mandate to the local health authority to forward in the manner prescribed under Rule 9-A a copy of the result of analysis to the person from whom the sample was taken. Section 13(2) of the Act and Rule 9(j) of the Rules came up for consideration before the Supreme Court and it was held in the case reported in AIR 1983 S. C. 303, Dalchand v. Municipal Corporation, Bhopal and another, as follows ;
"...Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analyst's Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accused, The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangement as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory."
Following the aforesaid dictum, this Court in 37(1984) CLT 241, Cuttack Municipality, represented by Gourahari Panda Food Inspector v. Prakash Kumar Bank, held that Rule 9-A which is almost in parimatra with Rule 9(j) is directory and not mandatory. While considering application of Section 13(2) and Rule 9-A, the Court has to consider whether the accused has in any way been prejudiced for non-compliance of the aforesaid provisions. In a very recent decision reported in A I R. 1985 S. C. 299, Tulsiram v. State of Madhya Pradesh, the Supreme Court not only approved the earlier decision in the case of Dalchand (supra), but further clarified the scope and ambit of Section 13(2) and Rule 9-A which had replaced the old Rule 9(j) and held as follows :
"...Rule 9-A is made in the context of the amended Section 13(2) which provides for the forwarding of the Public Analysts Report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the Court to have analysed by the Central Food Laboratory the sample kept with the local (Health) Authority. In the context expression immediately is only meant to convey reasonable dispatch and promptitude and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe 'immediately' as meaning at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps be to make Rule 9-A ultra vires Section 13(2). We do not think it is permissible to interpret Rule 9-A in such a way. The real question is was the Public Analyst's Report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis? If after receiving the Public Analyst's Report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. Our conclusions on this question are: The expression immediately in Rule 9-A is intended to convey sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9-A is not fatal. It is a question of prejudice Applying these principles, we find no merit in the submissions based on Rule 9-A."
The decisions of the Supreme Court ( supra) have set at rest the legal of principles relating to Section 13(2) and Rule 9-A. The focal point for examination where non-compliance or irregularity or laxity in compliance Section 13(2) and Rule 9-A is alleged is whether prejudice has been caused to the accused. If on the facts of a particular case it is found that there is complete non-compliance of the provisions of Section 13(2) and Rule 9-A, prejudice must necessarily be caused to the accused in his defence, because, he had no opportunity of knowing the adverse report of the Public Analyst as to the fact of adulteration, so as to move the Court to send another sample to the Central Food Laboratory for the purpose of analysis. In such a case prejudice can even be presumed. So Section 13(2) is of mandatory character. But in a case where there has been compliance of the aforesaid provisions, but there is some irregularity, the question of prejudice assumes utmost importance. If on facts it is found by the Court that on account of such irregularity being committed real prejudice has been caused to the accused resulting in his inability to apply to the Court to send another sample to the Central Food Laboratory for analysis, then it must necessarily be held that the trial has been vitiated. Rule 9-A is thus directory.
10. Keeping the aforesaid principles in the background, it is necessary to consider the facts of the case with regard to compliance of the provisions of Section 13(2) and Rule 9-A or contravention thereof. The sample Boondi was sent to the Public Analyst on 16.12.1976. Before the Public Analyst could submit his report (Ext 8) on 2.2.1978, Rule 9-A was inserted by way of amendment with effect from 4.1.1977 replacing Rule 9 (j). Therefore rule 9-A effective from 4.1.1977 will govern if is case. P. W. 3 the Food Inspector-cum-Health Officer of jaypore Municipality stated that he sent a copy of the report of the Public Analyst to the respondent by dak to prove which Ext. 9 was admitted into evidence. Ext. 9 dated 10.2.1977 shows that the copy of the report of the Public Analyst was not received by the respondent personally, but by one Gurumukh Das who had described himself as the brother of the respondent. The signature of Gurumukh Das on Ext. 9 was not proved nor was he examined as a prosecution witness to show that he had received a copy of the Report of the Public Analyst on behalf of his brother. There is no other document to show that the respondent was served with a copy of the Report of the Public Analyst. P. W 3 further stated that he issued a copy to the respondent on his request on 14.2.1977. But in cross-examination he admitted that on 14.2.1977 the copy of the Analyst's Report was delivered to the respondent through his peon. He also did not know Gurmukh Das. He did not remember when he sent the other copy of the Public Analyst's Report to the respondent. The aforesaid evidence of P. W. 3 gives the impression that he was not sure about service of a copy of the Report of the Public Analyst on the respondent either on 14.2.1977 or earlier.
If the respondent would have received a copy of the Report of the Public Analyst in compliance of Rule 9-A he could have taken steps by making a request to the learned Sub-Divisional Judicial Magistrate to send another sample to the Central Food Laboratory for analysis As he could not get this opportunity, there is cause for complaint that he was prejudiced in his defence. So there is a case in which there is no proof of compliance of the provisions of Section 13(2) and Rule 9-A and consequently prejudice to the respondent should be presumed to have been caused. This being the position, acquittal of the respondent does not seem to be unwarranted.
11. The Public Analyst received the sample on 20.12.1976 and gave his opinion on 2.2.1977. The local health authority, the Chief District Medical Officer, Koraput, received the Report of the Public Analyst on 10.2.1977 after expiry of a period of 45 days. Rule 7 (3) as amended with effect from 4.1.1977 is quoted below for easy reference :
7. Duties of public analyst-
X X X X (3) The public analyst shall within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III:
X X X X The sample was with the Public Analyst when the aforesaid amendment came into force and so the Public Analyst was bound to deliver his report to the local health authority within a period of forty-five days from the date of receipt thereof. The scope of Rule 7(3) came up for consideration before a Division Bench of the Kerala High Court in 1984 Crl. L. J. 563, The Food Inspector, Palghat Municipality v. K.M. Noose and others. It was held that Rule 7 (3) is mandatory in character and any infraction of the Rule is fatal to the prosecution. The predominant object of fixing a time limit for analysis by the Public Analyst is that the food sample sent for analysis does not deteriorate so as to make it unfit for analysis because, delay in making the analysis is likely to defeat the very purpose. It has, therefore, been uniformly held by the High Courts, as well as, by the Supreme Court that analysis of food samples by the Public Analyst should be prompt and cases are not rare in which on account of delay in analysis of food samples, they have ended in acquittal The legislative intendment being the above, the character of Rule 7 (3) appears mandatory. I can take, for instance, the present case, in which the food, such as Boondi was bound to deteriorate after a couple of days of its preparation. If such food sample is analysed a long time after, on account of chemical reaction of the ingredients and for preservation in an air-tight bottle for a long time, the food sample must deteriorate and so it would be doubtful if the fact of adulteration can be detected or not. That is the reason why particularly articles of food suspected to be adulterated should be analysed as quickly as possible without even waiting for the maximum period of 45 days prescribed by Rule 7 (3) Otherwise, a clear picture with regard to adulteration cannot be obtained. In this case Rule 7(3) was not adhered to by the Public Analyst for which genuine doubt can be raised about his report on account of delay.
12. It is settled-principle of law that there two views of evidence are reasonably possible, the appellate Court ought not to disturb the finding of acquittal, (see AIR 1975 S.C.274, Mehtab Singh and Ors. v. State of Madhya Pradesh). In this case as discussed above it is reasonable to take the view that the article of food was not adulterated or at any rate with regard to adulteration genuine doubt has been created. Therefore, interference with the order of acquittal is unwarranted.
13. In the result, the appeal is dismissed.