Atma Ram Poddar v. State Of Bihar — 1980 DIGILAW 240 (PAT)

Judgment Satyeshwar Roy, J. 1. Both these applications have been heard together as both the samples of the mustard oil had been taken at the same stage of manufacturing process and both the cases are being disposed of by this common judgment. 2. The facts in both the cases are same. On 29th August, 1973 two samples of Mustard Oil, during the process of manufacture were taken from the Oil Mill of the petitioner and both the samples were sent to Public Analyst, bihar at Patna. The original report of the Public Analyst is not available in the record of the Court below in Criminal Miscellaneous No.403 of 1980 (R ). However it has been submitted that the Public Analyst found the samples adulterated with linseed and sisam oil. On the basis of this the competent authority for sanctioned prosecution of the petitioner. Since two samples Were taken and reports were received from the Public Analyst, two complaints were filed by the opposite party No.2 against the petitioner. After the accused appeared, on an application filed on their behalf, the samples in question were sent to the Director Central Food Laboratory, Calcutta, (the Director), and his opinion was obtained. According to the opinion of the Director, the samples of mustard oil was adulterated as defined in Sec.2 (i-a) and (m) of Prevention of Food Adulteration Act, 1954 (the Act ). After hearing the parties charge was framed against the petitioner alone, as according to the record of the Court below, the other accused, the Manager of the Oil mill, is an absconder. 3. Mr. Dayal, learned counsel appearing on behalf of the petitioner, submitted that the Public Analyst found that the samples of the food (mustard oil) was adulterated with sesam oil and linseed oil, whereas according to the director there was no foreign substance in the food articles. The Director found the samples to be one covered by Sec.2 (i-a) and (m) of the Act. He submitted that in view of the difference of opinion between the Public analyst and (he Director, the benefit should go to the petitioner and it should be held that the food article was not adulterated. The Director found the samples to be one covered by Sec.2 (i-a) and (m) of the Act. He submitted that in view of the difference of opinion between the Public analyst and (he Director, the benefit should go to the petitioner and it should be held that the food article was not adulterated. His second ground is that the sanction for the prosecution of the petitioner was on the basis of the report of the Public Analyst and there is no sanction for the prosecution of the petitioner on the basis of the report of the Director. Mr. Dayal has challenged the legality of framing of charge on the ground of absence of sanction also. Mr. Dayals third ground is that the Act prohibits manufacture for sale of adulterated food. according to him the sample of mustard oil was taken during the process of manufacrure and the oil at that stage was not for sale. He submitted that no case, therefore, has been made out for violation of Sec.7 of the Act. 4. It has already been noticed that the case is at the stage of framing of charge, In the case of Supdt. and Remembrancer of Legal Affairs, West bengal V/s. Anil Kumar Bhunja and others, AIR [980 SC 52, the Supreme Court has laid down that a Magistrate is required to consider at the stage to see whether the charge can be framed against the accused. The relevant portion of the judgment is as follows : "the Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar V/s. Ramesh Singh, AIR 1977 SC 2018 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of lest, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Sections 227 and 228 of the Code of criminal Procedure, 1973. The standard of lest, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Sections 227 and 228 of the Code of criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. " 5. The power of this Court to exercise its jurisdiction under Sec.482 of the Code [section 561 (A) of the Code of 1898 ] was laid down in the case of R. P. Kapur V/s. State of Punjab, AIR 1960 SC 866 , which has been reiterated in all subsequent decisions of the supreme Court. The recent decision of that point is perhaps the case of Madhu Limaye V/s. State of Maharashtra, air 1978 SC 47 . Mr. Dayal submitted that in the absence of sanction for the prosecution of the petitioner after the opinion of the Director was received, the prosecution of the petitioner is an abuse of the process of the court. He urged that this Court should therefore exercise its jurisdiction under Sec.482 of the Code and quash the proceeding. 6. With regard to the absence of valid sanction urged by Mr. Dayal, the admitted facts are that the sanction was given on the basis of the opinion of the Public Analyst and no fresh sanction was accorded after the receipt of the opinion of the Director. In the case of The State of Gujarat V/s. Ambalal maganlal, 1978 Cr LJ 1036, a Bench of Gujarat High Court under similar facts stated that once the consent was effectively given it could not become invalid merely because the analysis by which offence was sought to be proved i. e. , the report of the Public Analyst charges as a result of subsequent even, i. e. , the opinion of the Director. I respectfully agree with the legal proposition laid down in that case. I respectfully agree with the legal proposition laid down in that case. It must be held that it is necessary to give a fresh consent after the receipt of the opinion of the Director and the petitioner can be prosecuted on the basis of the consent already given on the basis of the opinion of the Public Analyst. 7. Mr. Dayals contention that in view of the differepce of opinion between the Public Analyst and the Director, it must held that the mustard oil was not adulterated, is devoid of substance. Sec.13 (3) of the Act provides that the report of the Director shall supersede the report of the public Analyst. The report which, therefore, the Court will notice is the report of the Director and that is the only report now on the record according to law. 8. It was submitted by Mr. Dayal that according to the evidence of p. W.1, the Inspector who had accompanied P. W.4, the samples of mustard oil was taken when the same was in the process of refining and before it was refined. The statement of P. W.4 who had taken the samples is also to the same effect. P. W.4 has further stated that after refining the mustard oil is put in tin for the purpose of sale. On the basis of this fact, Mr. Dayal contended that Sec.7 of the Act prohibits manufacturer for sale of adulterated food and Sec.16 of the Act is the penal provision for manufacture for sale of adulterated food. In developing this points, Mr. Dayal urged that when the mustard oil was yet to be refined and put in tin for sale, it cannot be said that the petitioner was guilty of manufacture for sale of adulterated food. According to him unless it is shown that the petitioner intended to sell the mustard oil at the stage samples were taken, it cannot be said that the petitioner was guilty. It was contended on behalf of opposite party No.2 that manufacture includes any process incidental or ancillary to the manufacture of food article as defined in Sec.2 (viii-b) of the Act. It was urged that all intermediate stages of manufacture shall be deemed to be manufacture. 9. The Act prohibits manufacture for sale of adulterated food. It was contended on behalf of opposite party No.2 that manufacture includes any process incidental or ancillary to the manufacture of food article as defined in Sec.2 (viii-b) of the Act. It was urged that all intermediate stages of manufacture shall be deemed to be manufacture. 9. The Act prohibits manufacture for sale of adulterated food. What we are concerned in this case is whether the petitioner manufactured for sale of adulterated food when the samples where taken. The word "manufacture" is qualified by the words "for sale". Therefore, if adulterated food is manufactured, but not for sale, no offence is committed under the Act. It is not the case of the prosecution that the mustard oil at stage of manufacture was for sale. The submission on behalf of opposite party No.2 is misplaced. In my opinion in this case it cannot be held that the petitioner is guilty of manufacturing adulterated mustard oil for sale. No decision contrary to what i have held has been cited. Taking on its face value the materials on record it must be held that no case has been made out against the petitioner for framing charge punishable under Sec.16 of the Act. 10. In the result the applications are allowed and the charge framed against the petitioners in the both cases are quashed.