Orissa High Court
Bijoy Kumar Singh vs State Of Orissa on 8 August, 1986
Equivalent citations: 1986(II)OLR441
JUDGMENT K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Sessions Judge, Sundargarh, confirming the order of conviction and sentence of the petitioner Under Section 16(1)(a)(i) for contravention of Section 7 of the Prevention of Food Adulteration Act ('Act' for short).
2. The case of the prosecution is that the petitioner is a dealer of grocery articles at village Dharuadhi. On 18-9-1978 the Food Inspector, Sundargarh, inspected the grocery shop and suspected that mustard oil exhibited for sale in the shop for human consumption was adulterated. For chemical analysis of the mustard oil for detection if the same was adulterated or not, he performed the formalities prescribed in the Act and the Rules framed thereunder, purchased 0. 750 grams of mustard oil on payment of price, obtained receipt (Ext. 1) therefor from the petitioner, divided the same into three equal parts, kept the samples in three clean dry bottles and sent one of the samples to the Public Analyst of the Government of Orissa The Public Analyst in his report (Ext. 4) opined that the sample mustard oil was adulterated. A copy of the report of the Public Analyst was sept to the petitioner Since, a case of adulteration of mustard oil exhibited for sale for human consumption was revealed, consent of the appropriate authority, namely, the Chief District Medical Officer, Sundargarh (Ext. 6) was obtained and prosecution report (Ext.5) was submitted against the petitioner.
3. The petitioner took the plea that the copy of the report of the Public Analyst was not served on him and so he was seriously prejudiced in his defence because of his inability of getting another sample of mustard oil examined by the Director of the Central Food Laboratory. Further the mustard oil was not meant for human consumption.
4. The learned Chief Judicial Magistrate who tried the offence nagatived both the pleas raised by the petitioner and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for two months more. The appeal preferred before the learned Sessions Judg was without success.
5. Mr. K. Patnaik, learned counsel appearing for the petitioner contended that independent witnesses as required Under Section 10(7) of the Act were not called by the Food Inspector (P. W 1) at the time of the purchase of the sample and his evidence without corrcboration cannot b accepted. If his evidence is discarded, the prosecution is bound to fail.
It appears from the evidence of the Food Inspector (P. W 1) and P. W. 2 that some local people were called, but nobody came forward The learned Court below did not discard the evidence of the witnesses o this factual aspect. Therefore, in revision, on re-assessment of ora evidence and by discarding concurrent findings of fact, a fresh finding cannot be recorded to the effect that there was no compliance o Section 10(7) of the Act. In AIR 1971 S. C. 1277 : Babulal Hargovindas v. State of Gujarat, it was held as follows :
"...It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness Under Section 68 of the Evidence Act to prove the execution of the will The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as' required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony The provisions of Section 10(7) are akin to those Under Section 103 of the Criminal Procedure Code when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allega- tions of excesses or resort to unfair means either by the Police Officers or by the Food Inspectors under the Act. This being the object it is in the interest of the prosecuting authorities concerned to comply with the provisions of the Act, the non- compfiance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions".
In AIR 1977 S. C. 56, Prem Ballab and Anr. v. The State (Delhi-Admn), it was ruled as follows :
"...There is no rule of law that conviction cannot be based on the sole testimony of Food Inspector. It is only out of a sense of caution that the Courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law, if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses."
As against the principle laid down by the Supreme Court, Mr. Patnaik cited 1978 CLR 184, Dasarathi Pati v. State of Orissa, in which it was held by this Court that provisions of Section 10(7) are mandatory for non- compliance of which conviction under the Act has to be set aside. In this case reference was not made to the decisions of the Supreme Court (supra). Therefore, the case can at best be said to have been decided on its own facts and cannot outweigh the settled-principle laid down by the Supreme Court.
In consideration of the settled-principle of law and the evidence of the case, the contention of Mr. Patnaik to the effect that there was contravention of Section 10(7) of the Act is untenable. On the other hand, on the sole testimony of the Food Inspector, if it is believed as credible and truthful, and there are no adequate grounds to hold otherwise, conviction will lie.
6. Mr. Patnaik then urged that the appropriate authority did not sanction the prosecution and in the absence thereof, cognisance of the offence Under Section 20 of the Act was taken. Therefore, the order of taking congnisance being void ah initio the entire proceeding was illegal. Section 20 of the Act is quoted for easy reference :
"20 Cognisance and trial of offence. No prosecution for an offence under this 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 order, by the Central Government or the State Government."
It is not disputed that in Orissa, the appropriate authority to give written consent for prosecution under the Act is the Chief District Medical Officer. By Ext. 6 the Chief District Medical Officer, Sundargarh, gave his consent for the prosecution of the petitioner on 22-3-1979. Ext. 6 will show that the appropriate authority went through the details of the prosecution report, as well as, the relevant documents and' was satisfied that prosecu- tion should be launched against the petitioner Under Section 16 of the Act. This shows that the appropriate authority had applied his mind to the facts of the case before the prosecution report was submitted in Court. The prosecution report (Ext 5) was submtted in Court on 24-3-1979 on which date the learned Subdivisional Judicial Magistrate took cognisance of the offence against the petitioner. There-is nothing on record to show that the order of cognisance was passed without making reference to Ext. 6.
Mr. Patnaik made a feeble attempt to show that the expression "written consent" used in Section 20 of the Act shall mean "sanction" as used in Section 6 of the Prevention of Corruption Act. But no such meaning can be attributed to the said expression The word "sanction" has been used in a different context in, Section 6 of the Prevention of Corruption Act and carries an altogether different legal meaning. There is obvious difference between ' written consent", and "sanction". "Written consent" implies mere concurrence or agreement whereas ' sanction" confers authority on the person, in whose favour sanction is granted. Therefore, the considerations applicable in, the case of "sanction" would not be applicable to. a case where "written consent" is required. The above view is supported by a decision of the Bombay High Court reported in 1978 Cri L. J. 811, The State of Maharashtra v. Janardan Ramachandra Narwankar. The learned counsel did not also support his contention by citing precedent. On the other hand, there are decisions laying down the principle that Under Section 20 of the Act, written consent but, not sanction of the, appropriate government or appropriate authority is necessary before a prosecution is instituted under the provisions of the Prevention of Food Adulteration Act. In AIR 1961 S. C 1, The State of Bombay v. Parshottam Kanaiyalal, it was held that prosecution can be filed on the basis of the, written consent granted by the competent person or authority. In AIR 1970 S. C. 318, Dhian Singh v. Municipal Board, Saharanpur and another, it was held that the provisions under which sanction is sought, the sanctioning authority is required to apply its mind and find out whether there is any justification for instituting the prosecutions. In such cases the Court must be satisfied either from the order of sanction or from the other evidence that' all the relevant facts have been placed before the sanctioning authority and that authority has granted the sanction after applying its mind to those facts. Under Section 20 of the Prevention of Food Adulteration Act however no question of applying of one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints. In 38(1972) CLT 976, Sanatan Sahu v. The Puri Municipality through its Executive Officer it was held by this Court that the written consent envisaged in Section 20 is not an empty formality It should indicate that the authority or the person giving the written consent was himself satisfied about the correctness of the allegations against the accused. So the Court before proceeding with the case must be satisfied that the authority or the competent person had actually applied its mind before instituting the prosecution report. So long as the Court does not find any such written consent to support the prosecution report it cannot take cognisance of an offence under this Act and consequently cannot proceed with the trial of an offence under the Act. In 51(1981) CLT 35, Bansldhar Behera v. Puri Municipality, it was held that if the written consent was obtained before instituting the prosecution report in Court, the provisions of Section 20 of the Act are complied with, although the written consent is filed subsequently in Court. In such a case no prejudice can be said to have been caused to the accused.
In this case the written consent of the appropriate authority (Ext. 6) was obtained before instituting the prosecution report. There is nothing on record to warrant a finding that the written consent of the appropriate authority was not before the Court when cognisance of the offence against the petitioner was taken. The written consent also discloses that the appropriate authority had applied its mind before giving consent to institute the prosecution report. The expression "written consent" used in Section 20 of the Act is not equivalent to "sanction" used in Section 6 of the Prevention of Corruption Act. These being the findings, the contention of Mr. Patnaik is untenable.
7. The last contention of Mr. Patnaik was that a copy of the report of the Public Analyst was not served on the petitioner as provided in Section 13(2) of the Act read with Rule 9-A of the Prevention of Food Adulteration Rules. Therefore, prejudice was caused to the petitioner, inasmuch as as he was unable to make an application to the Court for examination of the food sample by the Director of Central Food Laboratory. In support of his contention he drew my attention to the postal cover (Ext. 8 ) and the endorsement of the Postman (Ext 8/1) as well as Ext. 9 the letter of the Chief District Medical Officer, Sundargarh, forwarding Ext. 10, a copy of the report of the Public Analyst. The postal cover (Ext .8) and the forwarding letter (Ext. 9) show that a copy of the report of the Public Analyst was sent by registered post in the correct address of the petitioner. The endorsement of the Postman (Ext. 8/1) shows that the addressee refused to accept the postal cover. Refusal to accept the postal cover shall be deemed to be sufficient service and compliance of Section 13(2) of the Act read with Rule 9-A of the Rules, This aspect was dealt with in detail by the learned Courts below and they concurrently held that there was sufficient compliance of Section 13(2) and Rule 9-A and so no prejudice was caused to the petitioner. In the facts and circumstances of the case, it is not possible to dislodge the concurrent findings.
8. All the contentions raised having failed, Mr. Patnaik pleaded for leniency of sentence. Taking the facts and circumstances of the case into account, I consider that sentence of simple imprisonment for a period of seven days and fine of Rs. 1000/-, in default, to undergo simple imprisonment for six months more will serve the ends of justice. Accordingly, the revision is dismissed with modification of sentence as indicated above.