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2010 DIGILAW 238 (ORI)

Gadadhar Das v. State of Orissa

2010-03-31

C.R.DASH

body2010
JUDGMENT (1) THIS revision arises out of appellate judgment of the petitioner's conviction under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred as 'Act' for short) and consequent sentence recorded thereunder obliging the petitioner to suffer R.I. for one year and to pay fine of Rs. 1000/-, in default to suffer R.I. for one month more. The petitioner, in this revision, has challenged the aforesaid judgment of conviction and order of sentence. (2) THE petitioner had a grocery shop in Dharmasala Market of Keonjhar Town. On 25-11-1988 the Food Inspector (P.W. 3) inspected the aforesaid grocery shop. THE helper attendant (P.W. 1) of the Office of the Health Officer, Keonjhar Municipality and the Sanitary Inspector (P.W. 2) attached to the Office of the A.D.M.O. (P.H.), Koenjhar were accompanying him (P.W. 3). THE Food Inspector (P.W. 3) suspected the mustard oil exposed for sale in the shop of the petitioner for human consumption to be adulterated. He, in accordance with rules made under the Act, purchased 450 grams of such mustard oil, divided the same into three equal parts and kept each part in three dry clean sample bottles. He (P.W. 3) sealed and wrapped the bottles following due procedures. One part of the sample, he sent to the Public Analyst for his analysis and opinion. THE other two parts were deposited before the local health authority. THE Public Analyst vide report (Ext. 8) reported that the sample of mustard oil falls below the prescribed standard in respect of polybromide test. On receipt of report of the Public Analyst, he (P.W. 3) placed the prosecution report and all the relevant documents including the Public Analyst's report before the local health authority, who on perusal of the same gave sanction/consent vide (Ext. 9) for prosecution of the petitioner. THE petitioner stood trial. In course of the trial prosecution ex- amined three witnesses, who have already been introduced and proved various documents. The defence plea is one of denial and one witness has been examined on -behalf of the defence. (3) LEARNED trial Court on consideration of the evidence on record found the petitioner guilty of the offence under Section 16(l)(a)(i) of the Act. In the appeal preferred by the petitioner, learned appellate Court confirmed the judgment and order of sentence recorded by the trial Court. (3) LEARNED trial Court on consideration of the evidence on record found the petitioner guilty of the offence under Section 16(l)(a)(i) of the Act. In the appeal preferred by the petitioner, learned appellate Court confirmed the judgment and order of sentence recorded by the trial Court. (4) LEARNED counsel for the petitioner, at the outset, complains of non-compliance of Section 10(7) of the Act and it is submitted that P.W. 3 having not called any independent witness at the time of entering into the shop premises of the petitioner and/or at the time of collection of the sample, the trial is vitiated on the ground of contravention of a mandatory provision. In the case of Prem Ballab v. The State (Delhi Admn.), AIR 1977 SC 56 : (1977 Cri LJ 12), Hon'ble Supreme Court observed thus : "There is no rule of law that conviction cannot be based on the sole testimony of a 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 bringing 'panch' witnesses." Similar view had been taken by Hon'ble Supreme Court in the case of Banulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 : (1971 Cri LJ 1075) when it observed : "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." Hon'ble Madhya Pradesh High Court in the case of Municipal Council, Morena v. Madanlal Verma, 1987 Cri LJ 1641 relied on the aforesaid decisions of the Hon'ble Supreme Court and held thus (Para 8) : "This provision indicates that what is necessary for the Food Inspector is to call one or more persons to be present at the time when such action is taken and take his or their signatures. Nowhere in this provision, as the trial Court has wrongly assumed, it is mentioned that one or more persons of the locality are required to be present. The obligation which Section 10(7) of the Act casts on the Food Inspector, is to call one or more persons to be present, where he takes the action, and if the Food Inspector has done so, then the prosecution is relieved of its obligation, as is required by the law. Assuming that public witnesses are not willing to co-operate with the Food Inspector, then what the Food Inspector is required to do? In such a contingency it can only be said that the provisions of Section 10(7) of the Act are directory, simply for assuring that there is no fabrication on the part of the prosecution. Assuming that Srikrishna (P.W. 2) and Natthi Khan (P.W. 3) were not present, then would the trial vitiate and could not the trial Court convict the respondent merely on the testimony of the Food Inspector? Non-compliance of the provisions of sub-section (7) of Section 10 of the Act, does not per se vitiate the trial. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. Food Inspector is not an accomplice, nor he comes to the category of an attesting witness to a seizure memo. The evidence of the Food Inspector, if believed, can be relied upon for proving the fact that he has acted in a particular case in a particular way." With the aforesaid background of law in mind, perusal of the impugned judgments visa-vis evidence of P.W. 3 makes it clear that P.W. 3 at the relevant time called people to be witness, but they refused to come as witness. On this aspect there is no cross-examination of P.W. 3 and he (P.W. 3) is also corroborated by P.Ws. 1 and 2, who are official witnesses. Both the Courts below, on thorough and careful examination of the evidence of prosecution witnesses on this aspect, have reached their satisfaction about bona fides of the Food Inspector (P.W. 3) regarding his action taken for compliance of sub-section (7) of Section 10 of the Act and have acted upon such evidence. Without referring to any decision, learned Advocate Court has also taken the same view, as has been taken by Hon'ble Supreme Court and Hon'ble Madhya Pradesh High Court in the decisions referred to supra. Compliance of the provision contained in sub-section (7) of Section 10 of the Act is mandatory, so far as the Food Inspector is concerned. He is obliged to call independent witnesses to be present during his visit of a shop and collection of sample etc. He is discharged of the burden/obligation, if he takes steps to call independent witnesses to be present, but in vain. He cannot be obligated by law to do certain things against the will of another. The provision is therefore mandatory till discharging of the obligation as aforesaid and no further. A man may be compelled to close his eyes, but he cannot be compelled to sleep. Similarly a person/persons of the locality may be called to be present; they may or may not come; they however, cannot be compelled to be witness, which is purely a voluntary act. There is no error or defect on the decision making process by the learned Courts below so far as this contentions raised by learned counsel for the petitioner is concerned. The impugned judgment, therefore, calls for no interference on this score. (5) NEXT it is contended by learned counsel for the petitioner that there has been noncompliance of sub-section (2) of Section 13 of the Act read with Rule 9-A of the Rules made under the Act. The impugned judgment, therefore, calls for no interference on this score. (5) NEXT it is contended by learned counsel for the petitioner that there has been noncompliance of sub-section (2) of Section 13 of the Act read with Rule 9-A of the Rules made under the Act. (6) SECTION 13(2) of the Act confers a right on the vendor to have the sample analysed by the Director, Central Food Laboratory and the Local Health Authority, alter institution of the prosecution has been enjoined with a mandatory duty to send a copy of the report of the Public Analyst to such vendor informing him that if he so desires he may, within ten days from the date of receipt of the copy of the report, apply to the competent Court to get the second sample analysed by the Director, Central Food Laboratory. Rule 9-A lays down the procedure in this regard. In is no more res Integra that Section 13(2) of the Act confers a valuable right on the vendor, because the certificate of the Director, Central Food Laboratory supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Noncompliance of Section 13(2) of the Act, therefore, causes serious prejudice to a vendor. In this regard reference may be made to Rameswar Deyal v. State of U. P., (1996 (2) FAC 197 (SC)), Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 : (1967 Cri LJ 939). (7) IN the present case, the petitioner is denied to have received the report of the Public Analyst asserted to have been sent to him in compliance of Section 13(2) of the Act. Such a stand of the petitioner is clear from his statement recorded under Section 313, Cr. P.C. The prosecution has sought to prove the factum of sending of the report of the Public Analyst along with forwarding letter of the Local Health Authority vide Ext. 10/2 through the Food INspector (P.W. 3), P.W. 3 has proved the postal acknowledgment vide Ext. 10 and signature of the petitioner thereon vide Ext. 10/1. Admittedly, neither the Local Health Authority nor any staff of the office of the Local Health Authority, who had direct knowledge about the fact, was examined as a witness. The relevant part of the evidence of P.W. 3 touching this point is extracted below for ready reference. "7. 10 and signature of the petitioner thereon vide Ext. 10/1. Admittedly, neither the Local Health Authority nor any staff of the office of the Local Health Authority, who had direct knowledge about the fact, was examined as a witness. The relevant part of the evidence of P.W. 3 touching this point is extracted below for ready reference. "7. I launched prosecution on 8-2-1989. The Local Health Authority sent a copy of report of Public Analyst to accused under registered post with acknowledgment. Accused received copy of report of Public Analyst. Ext. 10 is acknowledgment. Ext. 10/1 is signature of the accused." IN cross-examination, the Food INspector, P.W. 3 says - "13. To my opinion Ext. 10 bears signature of accused as it tallies with signature in other document." "14. I have no personal knowledge about which person went to present the report of Public Analyst to accused. It is not a fact that accused have not received copy of report of Public Analyst." (8) FROM the aforesaid evidence of P.W. 3 it is clear that he had no direct knowledge about dispatch of the report of the Public Analyst by the Local Health Authority to the petitioner. Admittedly P.W. 3 being a Food Inspector under Keonjhar Municipality, is not a staff of the office of the Local Health Authority. He cannot, therefore, claim direct knowledge about the aforesaid transaction. P.W. 3 in paragraph 13 of his cross-examination has opined that signature of the petitioner vide Ext. 10/1 tallies with other signatures of the petitioner on record. Such an opinion is misconceived firstly, on the ground that the alleged signature of the petitioner vide Ext. 10/1 is a short signature and other signatures of the petitioner vide Exts. 1/1, 2/1,3/4,3/5, and 6/1, which are admitted signatures of the petitioner, are full signatures and, secondly, P.W. 3 is not an expert on the subject and he has not asserted to have seen the petitioner writing or putting his signature at any point of time. The evidence of P.W. 3 on this aspect is, therefore, not more than hearsay evidence. 1/1, 2/1,3/4,3/5, and 6/1, which are admitted signatures of the petitioner, are full signatures and, secondly, P.W. 3 is not an expert on the subject and he has not asserted to have seen the petitioner writing or putting his signature at any point of time. The evidence of P.W. 3 on this aspect is, therefore, not more than hearsay evidence. Hon'ble Madhya Pradesh High Court in the case of Satish v. The State of Madhya Pradesh, 2007 (2) FAC 78, has held thus : "...........It is also apparent that the evidence of H.D. Dubey (P.W. 1), Food Inspector is hearsay in respect to sending of the notice and copy of the report of Public Analyst to the applicant as postulated in Section 13(2) of the Act. In his statement, he merely stated that he had received the information that the notice was sent by Registered Post. It was not proved by any witness from the office of the Local Health Authority as to how and by whom the said notice was dispatched. No dispatch register of the office or any postal receipt was produced. In the absence of the evidence of any person as to who dispatched the notice to the applicant, the evidence of H.D. Dubey, Food Inspector could not have formed any legal evidence. In State of Orissa v. Gauranga Sahu, ( AIR 2004 SC 1233 ) : (2003 Cri LJ 3077) the Apex Court observed that mere dispatch of report is not enough; and that the prosecution is further obliged to prove that the letter so dispatched had reached the addressee i.e. the accused................" Later, in Brijesh Kumar Jain v. State of M. P., 2008 (1) FAC 224, Hon'ble Madhya Pradesh High Court on the same aspect has relied on the aforesaid decision in the case of Satish v. State of M.P. supra. In the case of Kirtan Bhoi v. State of Orissa, 1997 (2) FAC 300, similar question arose before this Court. In the said case the evidence of the Food Inspector (P.W. 1) was there on record on this aspect, but he had no personal knowledge about dispatch of the report of Public Analyst to the accused by the C.D.M.O., Bolangir, who is the local health authority. Neither the C.D.M.O. nor any of the staff of his office was examined to prove about the dispatch in question. Neither the C.D.M.O. nor any of the staff of his office was examined to prove about the dispatch in question. This Court, on consideration of the matter, held thus : "....................It is needless to mention that P.W. 1 proved the postal receipt, Ext. 13, but the same does not prove anything beyond the fact that some article was delivered at the post office and the receipt was granted. It does not prove that a copy of the Public Analyst's report contained in registered cover that was sent at the address of the petitioner. Therefore, merely on the basis of the postal receipt and without there being any positive evidence of actual despatch of the copy of the Public Analyst's report, it could not be said that there was sufficient compliance of the mandatory requirement of Section 13(2) of the Act........." (9) HON'ble Supreme Court, in the case of S. R. Ramaraj v. Special Court Bombay, AIR 2003 SC 3039 : (2003 Cri LJ 3863) has held that where an officer of the Bank, who had no personal knowledge of the transaction in question, was deposing on the basis of material on record, his evidence would not be from his knowledge and necessarily had to be hearsay. The status of Food Inspector (P.W. 3), in the present case, who has deposed on the basis of Exts. 10, 10/1 and 10/2 is no better than the witness concerned in the case supra. (10) LEARNED trial Court has accepted the evidence of P.W. 3 on this aspect without analyzing the evidence of P.W. 3, as it should have been. LEARNED trial Court has further erred in coming to its own conclusion to the effect that on comparison of Ext. 10/1 it is found to be short signature of the accused. LEARNED appellate Court has also erred in jumping to its own conclusion on the basis of assumptions though it has observed that there is no direct evidence of the person, who dispatched Ext. 10 from the office of the CD. M.O. Both the Courts below have not properly appreciated the evidence of P.W. 3 on this aspect and have arrived at the finding on the basis of assumptions. This Court, in that view of the matter, in exercise of revisional jurisdiction, can re-appreciate the evidence inasmuch as there is error/defect in the decision making process by the learned Courts below. M.O. Both the Courts below have not properly appreciated the evidence of P.W. 3 on this aspect and have arrived at the finding on the basis of assumptions. This Court, in that view of the matter, in exercise of revisional jurisdiction, can re-appreciate the evidence inasmuch as there is error/defect in the decision making process by the learned Courts below. Regard being had to the discussion in the preceding paragraph touching this aspect, the evidence of P.W. 3 is to be held as hearsay evidence, which, for its very nature, is not admissible in the facts and circumstances of the case. It is therefore held that there has been no compliance of Section 13(2) of the Act, as there is no evidence of credence to prove dispatch of the report of the Public Analyst and notice of the local health authority to the petitioner. The right of the petitioner under Section 13(2) of the Act being a valuable right, non-compliance of the provision is prejudicial to the interest of the petitioner and it is settled law that the trial is vitiated on this score alone. Learned counsel for the petitioner raises some more questions touching the manner of sanction/consent by the local health authority and disqualification on the part of the Public Analyst concerned. In view of the finding supra, discussion of the aforesaid points would add to the burden of the order and shall become were academic only. I, therefore, do not feel persuaded to address those questions. (11) IN the result, the order of conviction and sentence passed by the learned Courts below are set aside and the Revision is accordingly allowed.