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1996 DIGILAW 324 (CAL)

Kailash Pati Oil Mill v. D. L. Chatterjee

1996-08-13

ASISH BARAN MUKHERJEE

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JUDGMENT A. B. Mukherjee, J.: An application under s. 482 Cr.P.C. is the basis for the revisional application, the purpose of which is to quash the order dated 19.4.95 passed by Senior Municipal Magistrate rejecting the prayer of the accused petitioners for their discharge in Case No. 53-0 of 1990 as also to quash the entire proceeding. 2. The case in short is that on 24.10.90 the opposite party No. 1 being a Food Inspector attached to Calcutta Municipal Corporation filed a complaint with the allegation that on 3.8.90 he inspected the shop of the petitioners at 110/1, Kshudiram Bose Sarani, Calcutta and collected some quantity of Mustard Oil from petitioner No. 2 and sent one part of the same to Public Analyst for analysis. As per the report of the analyst the Mustard Oil did not conform to the prescribed standard in respect of Saponification value and as such was adulterated. The complainant accordingly submitted the records including the copy of the report of the Public Analyst to the Chief Municipal Health Officer of Calcutta Municipal Corporation who accorded his sanction for prosecution of the petitioners. The petitioners on receipt of the copy of report of Public Analyst exercised their rights under s. 13(2) of the Prevention of Food Adulteration Act, hereinafter referred as the Act for getting one part of the sample examined by Director, Central Food Laboratory. On analysis, the Director found the Saponification value of the sample Mustard all within the prescribed standard but came to the conclusion that the sample did not conform to the standard of Mustard Oil as per P.F.A. Rules and also sent a certificate of analysis. It is alleged that sanction for prosecution under s. 20(1) of the Act was given by the Chief Municipal Health Officer on the basis of the report of Public Analyst, which was however found to be not correct as per the report of the Director, Central Food Laboratory. Accordingly, it is contended that the sanction as such is not a valid sanction and on its basis no cognizance can be taken. There being no further sanction on the basis of the report of the Central Food Laboratory. Accordingly, the petitioners filed an application for their discharge which was, however, rejected by the Learned Senior Municipal Magistrate by order dated 19.4.95. There being no further sanction on the basis of the report of the Central Food Laboratory. Accordingly, the petitioners filed an application for their discharge which was, however, rejected by the Learned Senior Municipal Magistrate by order dated 19.4.95. Accordingly, the revisional application has been filed to set aside the said order and to quash the proceeding being without any valid sanction. 3. It is argued for the petitioners that as per the report of the Public Analyst, the Saponification value of seized Mustard Oil was 178.3 while the prescribed standard is between 168 and 177 but as per the report of the Director, Central Food Laboratory, the Saponification value of the other sample sent to him at the instance of the defence under s. 13(2) of the Act is 169.3. It is argued that since the report of the Director, Central Food Laboratort shall prevail over report of the Public Analyst in terms of s. 13(3) of the Act, the seized Mustared Oil cannot be said to be adulterated due to the Saponification value being in excess of the permissible limit. It is argued that as per the petition of complaint, sanction to the prosecution was given by the concerned authority on a perusal of the report to the Public Analyst. The authority derived its satisfaction on consideration of the Public Analyst's report. Since the said report cannot be allowed to stand in view of the report of the Central Food Laboratory, the sanction given on the basis of the report of the Public Analyst cannot be said to be a valid sanction in terms of s. 20 of the Act. It is his contention that the report of the Central Food Laboratory also no doubt describes the sample as adulterated but it is due to the fact that the sample exceeded the standard so far as Belier Test is concerned. It is contended that while the standard as per the Belier Test is 27.5*C, it was found to be 28.7*C by the Central Food Laboratory. It is contended that since there was no further sanction after receipt of the report of Central Food Laboratory the prosecution cannot continue. In support of his contention, reliance has been placed in a decision reported in Food Adulteration Act Cases 1975 (2) 331 where the duty of the sanctioning authority has been stated. It is contended that since there was no further sanction after receipt of the report of Central Food Laboratory the prosecution cannot continue. In support of his contention, reliance has been placed in a decision reported in Food Adulteration Act Cases 1975 (2) 331 where the duty of the sanctioning authority has been stated. The sanctioning authority is to apply its mind to see if a prima facie offence has been committed and if so to accord sanctioning authority based his opinion on the report of the Public Analyst which was subsequently found to be not correct by the Central Food Laboratory and as such the sanction based on the earlier report cannot stand. Reliance has also placed on decision reported in All India Prevention of Food Adulteration Journal 1978, 472 and also Prevention of Food Adulteration cases, 1979 (1) at 246. Reliance has also been placed on' decision reported in 1991 Cr.LJ 3302 when in occasions like the present case need of fresh sanction has been held mandatory. 4. The learned Advocate for the O.P.s tried to meet the argument by stating that the sample was sent to the Central Food Laboratory at the instance of the defence that is present petitioner under s. 13(2) of the Act. Obviously, this is a fact which is apparent on the face of the record but for this reason the report submitted by the Food Laboratory does not loose significance. It is also his contention that since the samples were found to be adulterated both by the Public Analyst and also by the Central Food Laboratory, there is nothing improper in the taking of cognizance by the Magistrate which was done on the basis of a valid sanction order. It is argued that in such circumstances there cannot be any revision or exercise of inherent power. In support of his contention, he has relied on a decision reported in 1992 Cr. LJ 2289. The fact of that case is completely different from the present one. In that case the authority, while giving consent in accordance with s. 20(1) Prevention of Food Adulteration Act used the word "sanction" instead of the word "consent". In support of his contention, he has relied on a decision reported in 1992 Cr. LJ 2289. The fact of that case is completely different from the present one. In that case the authority, while giving consent in accordance with s. 20(1) Prevention of Food Adulteration Act used the word "sanction" instead of the word "consent". It was held that when the report of the Public Analyst and the report of the Food Inspector were before the competent authority and the latter gave sanction for prosecution, it amounts to sufficient compliance of the aforesaid section in accordance with the presumption under s. 114(C) of the Evidence Act. That decision can have no application in our case since the report of Food Laboratory was not before the competent authority before sanction was granted. 5. I have given my careful consideration to the submissions of learned Advocates for the sides and come to the conclusion that in the facts and circumstances and in view of the decisions cited at the Bar, the sanction accorded by the authority concerned on the basis of the report of Public Analyst cannot be said to .be a valid sanction. Whether a particular sample of foods is adulterated or not, can be ascertained only on the basis of a report following analysis and in this case said analysis was done by the Public Analyst. The sanctioning authority obviously based his opinion of the said report which in our case branded the sample as adulterated as the Saponification value exceeded the permissible standard. Naturally, the sanctioning authority accorded his sanction on the ground that Saponification value is higher than the prescribed standard. Subsequently, one part of the sample was sent to the Central Food Laboratory at the instance of the defence in accordance with law and the subsequent analysis found the Saponification value well within the permissible limit but so far as Belier Test is concerned, it was found that the sample did not conform with the prescribed standard being higher by 1.3*C. It is true that both the report terms the sample as adulterated but there being no subsequent sanction on the basis of the report of the Central Food Laboratory, the earlier sanction cannot be held to be good since its basis, namely, the report of the Public Analyst has been found to be incorrect when compared with the subsequent report from Central Food Laboratory. Therefore, there being no valid sanction the very taking of cognizance by the learned Magistrate is not in accordance with law. 6. It was next contended for the petitioners on the basis of a decision reported in 1995 Cr.L.J. 2661 that samples being found to be adulterated marginally the same should be over-locked. In that case, as content of Chilly was found to be 8.38% instead of standard 8% and in that view it was held to be adulterated marginally and hence the prosecution was quashed. In our case, as per report of the Central Food Laboratory, as per Belier Test, sample exceeded the standard by 1.3*C and as such in my opinion, it cannot be termed to have been marginally adulterated. Therefore, the decision relied on by the learned Advocate should not in my opinion be applied in the present case. 7. Accordingly, the revisional application stands allowed on contest and the impugned order, as also the case pending before the Senior Municipal Magistrate being 53-0 of 1990 stands quashed but liberty is given to the Calcutta Municipal Authorities as also the Sanctioning Authority to apply his mind on scrutiny of the report of the Director, Central Food Laboratory' and come to an independent opinion, so far as sanction is concerned. It is made clear that in the event of such a sanction accorded according to law, prosecution shall not be barred by a reason of quashing the case. Revisional application allowed. Impugned order and the proceeding quashed, liberty granted.