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2006 DIGILAW 351 (ORI)

State of Orissa v. Puranmal Agrawalla

2006-05-01

P.K.MOHANTY

body2006
JUDGMENT P. K. MOHANTY, J. : The State is the appellant against the order of acquittal passed by the learned Judicial Magisrate First Class, Birmaharajpur in 2 (c) CC No. 3 of 1985/T.R.No. 132 of 1985 registered for the offences committed under Sec. 16(1)(a)(i) in contravention of Section 7 of Prevention of Food Adulteration Act. 2. The prosecution case in brief was that on 12.6.1985 the Food Inspector, Bolangir (P.W.No. 3) inspected the grocery shop of the accused-respondent in village Naikpara under Birmaharajpur Police Station. Having suspected the Besan kept in the shop to the adulterated, he served a notice in writing to the accused expressing his desire to purchase 600 grams of Besan for examina¬tion by the Public Analyst to know the exact adulteration. P.W.No. 3 after purchasing the Besan divided it into three equal parts complied with all formalities and obtained the signature in the three sample bottles. The Food Inspector sent one part of the same Besan with a copy of memorandum to Public Analyst, Orissa, Bhubaneswar by Registered Parcel and sent a copy of memorandum with specimen impression of the seal to the Public Analyst, Orissa separately by Registered Post. The other two sample bot¬tles with two copies of memorandum were depisited with the Local Health Authority, the C.D.M.O., Bolangir. On 26.7.1985 P.W.No. 3 received the Public Analyst report from the C.D.M.O., Bolangir and as per the verbal order of the C.D.M.O., he submitted prose¬cution report on 14.8.1985 alongwith the sanction order obtained from the Local Health Officer-cum-C.D.M.O., Bolangir. The C.D.M.O. intimated the accused alongwith a Public Analyst Report to make an application before the Court within ten days of re¬ceipt of the intimation letter to get the sample reanalyzed by the Central Food Laboratory, if he so deisred. However the ac¬cused had not preferred to ask for further examination of the said sample. 3. The prosecutin has examined 3 witnesses in all and none has been examined on behalf of the defence. P.W.No. 1 is an independent witness belonging to the village of the accused. P.W.No. 2 is a peon in the C.D.M.O’s. Office, Bolangir who accom¬panied the Food Inspector to the place of occurrence and P.W.No. 3 is the Food Inspector who is the complainant in the case. Ext. 1 is the notice to the accused for collection of the sample, Ext. 2 is the money receipt granted by the accused, Ext. P.W.No. 2 is a peon in the C.D.M.O’s. Office, Bolangir who accom¬panied the Food Inspector to the place of occurrence and P.W.No. 3 is the Food Inspector who is the complainant in the case. Ext. 1 is the notice to the accused for collection of the sample, Ext. 2 is the money receipt granted by the accused, Ext. 3 is the memorandum prepared by P.W.No. 3, Ext. 4 is the postal receipt used for sending the sample bottles, Ext. 5 is the another postal receipt used for sending copy of the seal of the impression with memorandum in a separate registered parcel to the Public Analyst, Ext. 6 is the Public Analyst Report, Ext. 7 is a copy of the notice sent to the accused, Ext. 8 is the postal receipt for sending intimation to the accused and Ext. 9 is the postal ac¬knowledgment where the intimation was received by the accused. M.O.I is the sample bottles in two parts which were kept with the C.D.M.O., Bolangir after collection by P.W.No. 3 and produced during trial. 4. P.W.No. 1 is a local independent witness at the place of occurrence. He has denied his knowledge regarding the collec¬tion of sample by the Food Inspector from the shop of the ac¬cused. He stated that he had signed three papers without knowing the contents thereof. P.W.No. 2 is the Peon of the C.D.M.O. Office who had accompanied the Food Inspector. According to him he had accompanied the Food Inspector Sri A. Naik to Naikpara who visited the grocery shop of the accused on 12.8.1985 whereas the date of occurrence is on 12.6.1985. He had proved the notice issued by the Food Inspector for collection of sample. P.W.No. 3 has disclosed in his evidence to have collected the sample of Besan on 12.6.1985 and to have served notice on the accused before purchase of 600 grams of Besan and has supported the prosecution story in toto. The learned trial Court has observed that the oral statement of P.W.No. 3 does not support the sei¬zure. Learned Magistrate has further observed that the sample of Besan was sent to Public Analyst on 12.6.1985 and received back by the C.D.M.O. on 26.7.1985 and thus in between the date 13.6.1985 and 26.7.1985 the sample Besan was examined by the Public Analyst whereas Ext. 6 does not disclose the date of examination of the sample of Besan. Learned Magistrate has further observed that the sample of Besan was sent to Public Analyst on 12.6.1985 and received back by the C.D.M.O. on 26.7.1985 and thus in between the date 13.6.1985 and 26.7.1985 the sample Besan was examined by the Public Analyst whereas Ext. 6 does not disclose the date of examination of the sample of Besan. The custodia of the sample bottles of Besan during such period was not specifically pleaded and proved by the prosecution. Taking into consideration the cross examination of P.W.No. 3 that he had collected the sample of Besan from a stock of 90 to 95 kilograms kept in a gunny bag inside the grocery shop of the accused and that such fact was not disclosed in the prosecution report, the learned Magistrate has doubted his testimony. 5. The learned Magistrate has held that the sanction order of the C.D.M.O. is nothing but a mechanical process without application of mind. It has also been found that in absence of the exact percentage or composition of the adulteration it is not safe to accept the report. The report of the Public Analyst disclosed that sample of Besan contained starches of Bengalgram and pea but did not disclose the percentage or composition of the adulteration. On such finding the learned Magistrate has acquit¬ted the accused-respondent. 6. The learned Additional Government Advocate has contend¬ed that the finding of the learned Magistrate is contrary to the evidence on record inasmuch as the evidence on record is clear and unambiguous that the accused was selling the adulterated Besan for human consumption and, as such, the learned Magistrate has not appreciated the evidence in its proper perspective. 7. Sri S.C.Lal, learned Senior Counsel for the accused-respondent however submits that the manner in which the sample was taken by the Food Inspector was not in accordance with law. The evidence of the independent witness, P.W.1 who was examined in support of the prosecution case has not proved that the adul¬terated Besan in question was purchased, sealed and sent for Public Analyst by the Food Inspector and the conflicting evidence of P.Ws. 2 and 3 justified the order of acquittal and as such the Government Appeal is devoid of any merit. 8. 2 and 3 justified the order of acquittal and as such the Government Appeal is devoid of any merit. 8. The learned Counsel has brought to my notice the deci¬sion in State of H.P. v. Sita Ram, 2000 FAJ 125 in support of his contention that only because the Besan contained gram dal starch and watna dal starch that by itself does not make the composition adulterated specially in the absence specific finding regarding the composition of the adulteration. It appears, in the aforesaid case a learned Single Judge of Himachal Pradesh High Court con¬sidering Appendix-B of Prevention of Food Adulteration Rules, 1955 with regard to the standard of quality of Besan and taking into consideration the possibility of mixing of small quantity of maize flour with the Besan because apart from the Besan and other food articles maize flour might have been weighed with the same scale with which the Besan was weighed, held that the presence of such material by itself will not make the Besan adulterated in absence of quantity of maize starch found as an admixture in the sample. It was held that the Besan can be construed as adulterat¬ed only by the presence of any foreign ingredient. I am in agree¬ment with the view taken by the learned Magistrate. In absence of any finding by the Public Analyst about the percentage of degree or quantity of admixture of the Bengal gram starch and pea powder starch, it cannot be determined and held that the besan was adulterated. On this ground alone the Government Appeal is liable to be dismissed. 9. Otherwise also, the order of acquittal was passed on 12.5.1987. The occurrence took place on 14.6.1985. In the mean¬time more than two decades have passed and at this stage the Court would be reluctant to reappreciate the evidence and take a different view in the matter. In any view of the matter, I find no merit in the Government Appeal which is accordingly dismissed. Appeal dismissed.