Orissa High Court
Amal Kumar Prathihari vs State Of Orissa on 4 January, 1994
Equivalent citations: 1994(I)OLR441
JUDGMENT K.C. Jagadeb Roy, J.
1. This Criminal Revision is directed against the order of conviction and sentence passed by the Sub- Divisional Judicial Magistrate, Panposh in 3 (a)CC No. 19/90 against the present petitioner for the alleged offence Under Section 16(1)(a)(i) of the Prevention of Pood Adulteration Act sentencing him to undergo R.I. for one year and to pay a fine of Rs. 1,000/-; in default of payment of fine to undergo R.I. for two months. The said order has been confirmed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No. 36/39 of 1992 of order dated 28-11-1992.
2. The case of the prosecution briefly 9tated is that at about 11.00 A. M. on 31-8-1989, the Food Inspector, Rourkela inspected the shop of the petitioner situated in Ispat market, Rourkela suspecting that mustard oil kept in the shop in tins was adulterated when the petitioner was present in the shop. The Pood Inspector having served the notice on the petitioner expressed his intention to take sample therefrom for examination by the Public Analyst. According to the prosecution, the Food Inspector had purchased 375 grams of mustard oil from each of the tins, one of which was open and the other two being sealed and were of Engine brand and Agmark respectively. The samples collected were divided into three equal parts and kept in clean dry empty bottles. Each bottle was packed, sealed, labelled properly out of which one was sent to the Public Analyst for examination and on obtaining the report from the Public Analyst that the material was adulterated, prosecution report was filed. The witnesses examined for the prosecution were the Food Inspector and a peon attached to his office who were examined as PWs 1 and 2.
The defence case was that both the tins were sealed and as the present petitioner failed to satisfy the illegal demand of the Food Inspector, the case has been falsely started against him. According to the defence case, the present petitioner was covered by the protection afforded Under Section 19 of the Prevention of Food Adulteration Act as he had purchased the articles as per cash memo from the distributor and in support of his plea had examined DWs 3 and 4 and exhibited Exts A and B which were the cash memos.
Sub-section (2) of Section 19 reads as follows :
" A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves ;
(a) that he purchased the article of good -
(i) in a case where the licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form and
(b) that the article of food while in his possession was properly stored and that he sold it in the same State as he purchased it."
According to the learned counsel for the petitioner in terms of Sub-section (3) of Section 19, the petitioner had examined DWs 3 and 5 as aforesaid and the evidence were recorded showing that the petitioner had purchased four tins of mustard oil under the credit memo Ext. A from DW 3 which is a firm dealing with the wholesale selling of mustard oil and DW 5 had stated that on 19-8-1990 he had sold 10 sealed tins of one K. G. mustard oil (Ag mark) to the petitioner and granted the receipt vide Ext. 8.
3. The second contention of the present petitioner is that apart from this, the prosecution is bound to fail as the sanction order that was the basis of the initiation of the proceeding against the present petitioner was essentially bad because not only the maker of the report was not examined in the Court, but the report did not refer to any document in particular to which the sanctioning authority had applied its mind before it gave the written consent for the prosecution. This argument was not raised before the trial Court and has been raised only before this Court. The L. C. R, was called for. Since this is an important point raised, I consider it proper to go through the records to find out if the second point has any basis. Ext. 12 is the sanction order. This does not specifically relate to any of the document that was placed before the sanctioning authority before he passed the sanction order on 13-3-1990. The sanction order reads as follows :
"In exercise of power vested in me under Sub-section (1) of the Sec 30 of the P. F. A. Act, 54,1 Dr. (Mrs) D. B. Patnaik, Local Health Authority and Prosecution Sanctioning Authority and Chief District Medical Officer, Sundargarh District after going through the prosecution report and all the connected documents,submitted by the Food Inspector, Rourkela Municipality and NAC (ST) and after due perusal and application of my mind to the facts of the case, I am fully convinced that there is a prima facie case to prosecute the offender in the Court of Law and therefore, I hereby accord my consent for prosecution of the accused Sri Amal Kumar Prathihari, Age. 35, S/o- Surya Kumar Prathihari, Proprietor of Grocery shop, styled as "Popular Store" Shop No. 24, Ispat Market, Rourkela-5 in the District of Sundtrgarh for the offence alleged to have been committed by him Under Section 16(1)(a)(i) in contravention of Section 7(i) of PFA Act. 1954 and Rules made thereunder."
Sd/-
Dr. (Mrs.) D.B. Patnaik, Prosecution Sanctioning Authority and Chief District Medical Officer Sundargarh".
In a similarly worded sanction order in Gourhari Panda v. Sri Paramananda Agrawalla and Anr., reported in 1989 (I) OLR 545, the Court held that the sanction order was not in terms of Section 20 as the written consent as is required under that section is not required to be an empty formality but is meant to find out whether there was prims facie circumstance for such consent. Since no soecific materials were before the sanctioning authority and nothing was referred to in the sanction order, the Court held that the sanction was not in terms of Section 20 and further held that the prosecution could not be sustained.
In Bijoy Kumar Singh v. State of Orissa, reported in 1986 (II) OLR 441, a view was taken by the Hon'ble single Judge of this Court that in Sec 20 of the Prevention of Food Adulteration Act, 1954, there is no question of application of mind to the facts of the case by the competent person before institution of the complaint where a different view was taken in Gourhari Panda v. Sri Paramananda Agrawalla and Anr., reported in 1989 (I) OLR 545. The matter was therefore referred to a Division Bench of this Court in Mohammed Yakub Khan v. State of Orissa, reported in (1992) 5 OCR 543 and the Division Bench of this Court held that the decision taken in Gourhari Panda's case 'supra) was correctly decided and held as follows :
" It is, therefore, clear that to initiate a prosecution, there has to be application of mind and a satisfaction has to be reached that a prima facie case exists against the alleged offender being put up before a Court. In that view of the matter, there can be no scope for any doubt that the consent required to be given is not an empty formality, and there has to be application of mind, and satisfaction has to be reached about existence of a prima facie case."
In the latter decision of this Court reported in (1994) 7 OCR 46, (Chandramani Singh v. State), the Hon'ble Judge relied on the findings given in Gourhari Panda v. Paramananda, reported in 1989 (I) OLR 545 while holding the said view.
The law is well settled that the view taken in 1989 (I) OLR 545 is the correct view whereunder the following principles ware established. When the sanction order does not disclose as to what docu ments were referred to by the sanctioning authority or when any docu- ments was not enclosed with the prosecution report or when there is no evidence to show that there was any material placed before the sanctioning authority or the same was indicated in the prosecution report the requirement of Section 20 of the Act not being an empty forma- lity, the prosecution is vitiated and bound to fail. The decision was to the effect that it was necessary to examine the sanctioning authority. The Medical Officer who has given consent in Gourhari Panda's case had not been examined to show that he had properly applied his mind before according the sanction. The Court thereupon had come to the conclusion that it may not be necessary to examine the authority giving the consent but when it was not clear from the evidence as to whether there had been proper application of mind, the prosecution should have done well in examining the concerned sanctioning authority. In the facts of the present case giving consent has also suffered from the same defect. It is not clear from the evidence on record as to whether there had been proper application of mind of the sanctioning authority The prosecution report does not refer to any material to suggest that such an evidence was placed before the sanctioning authority for consideration. In such view of the matter, I come to the conclusion that there was no proper sanction accorded in terms of Section 20 of the Prevention of Food Adulteration Act, 1954 which vitiates the entire proceeding. Because of this, 1 do not consider it necessary to examine the other question as to whether the present petitioner was protected Under Section 19(2) of the Act as claimed by him. Since the petitioner succeeds on the first ground, I allow this criminal revision and set aside the order of conviction and sentence passed against the petitioner in the case under consideration.
The Criminal Revision is allowed.