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2014 DIGILAW 175 (ORI)

State of Orissa v. Dusmanta Kumar Paridala

2014-03-14

D.DASH

body2014
JUDGMENT The State has called in question the judgment of acquittal passed by the learned Chief Judicial Magistrate, Rayagada in 2(c) CC No.105 of 1994 acquitting the respondent of the charge under Section 16 (1)(a)(i) read with Section 7 (i)(v) of the Prevention of Food Adulteration Act, 1954. 2.The short case of prosecution is that on 22.08.1992, the Food Inspector (P.W.3) along with his peon (P.W.2) and one Inspector of Police (Vigilance) went to the shop of the respondent and there, they found respondent to have exposed varieties of food articles for sale for human consumption. P.W.3 then disclosing his identity inspected the food articles and entertained suspicion as regards adulteration of some of the food articles, such as, Mustard Oil, Besan and Harad Dal. So, after issuing notice as required under the Rule in the appropriate format under Ext.1 expressing the intention to purchase those food articles for the purpose of their examination by the Public Analyst, he finally purchased required quantities of Mustard Oil, Besan and Harad Dal on payment of price and also received necessary cash memo Ext.2 to that effect. The samples of each article of the food articles were then divided into three equal parts, kept them in empty, clean and dry bottles duly corked, wrapped, labeled and lastly sealed. Each part of the sample from each of the item of the food article were then sent to the Public Analyst for analysis under separate memorandum containing the specimen impression of the seal used for the purpose of sealing the sample bottles and also those memorandums were separately sent. Reports were then received from the Public Analyst about the adulteration of Besan and Harad Dal. So, the matter was placed before the Chief District Medical Officer-cum-Local Health Authority. Necessary written consent being given by him finally the prosecution was launched. 3.The case of the respondent is that of complete denial. He has taken a plea that he was not the owner of the shop and that at the time of sale, he was not engaged for sale of any food articles. 4.The trial Court after having formulated the points for determination has first of all gone to say that for inordinate delay in launching the prosecution and dispatching the report of the Public Analyst to the respondent, serious prejudice has been caused to the respondent. 4.The trial Court after having formulated the points for determination has first of all gone to say that for inordinate delay in launching the prosecution and dispatching the report of the Public Analyst to the respondent, serious prejudice has been caused to the respondent. Placing reliance on the decision of this Court in case of M/s. Narain Extractions Pvt. Ltd. v. P.C. Mishra, Food Inspector; (1995) 9 OCR 506, it has been held that the respondent is entitled to an acquittal on this score. Next with regard to the report of the Public Analyst in respect of the sample of food article, i.e., Besan, he has concluded that the report is not acceptable on the factum of adulteration simply on the basis of finding regarding presence of about 90% Khesari starches therein. Finally, in respect of the Public Analyst’s report with respect to sample of food article, i.e., Harad Dal has been discarded due to absence of specific mention inconformity with the PFA Rules being not so indicated that the coal tar dyes, such as, Metanil yellow and Orange present are not within the permitted category of coal tar dyes. 5.Learned counsel for the State before going detail into the matter as regards non-acceptance of the report of Public Analyst in respect of Harad Dal and Besan which according to him is untenable, first of all submits that the trial Court has completely erred in law by holding the prosecution as vulnerable in view of the delay in launching the prosecution and dispatch of the copy of the report of the Public Analyst. According to him, no prejudice can be said to have caused to the respondent for the same in the facts and circumstances of the present case as there was no attempt from the side of respondent to get the samples reanalyzed and so it cannot be said that there could not have been proper analysis. Learned counsel for the respondent has refuted the aforesaid submission. Learned counsel for the respondent has refuted the aforesaid submission. His contention is that when the very purpose of Rule 7(3), 9(B) of the PFA Rules and also the provision of Section 13 of the Act are seen, such long delay in the present case can certainly be said to have caused serious prejudice to the respondent and had he then applied for reanalysis of the second parts of the samples, no purpose would have been served as the delay in the present case is not only beyond the time frame prescribed under the Rule but also too unreasonable and beyond comprehension. As such delay has frustrated the very purpose of provision of Section 13(2) of the Act and that in any event, there must remain a time period for the food article to remain fit for human consumption and the analysis beyond that period from the date of purchase of the samples of food article like the present carries no meaning. So he submits that the report of the Public Analyst in respect of both the items of the food articles cannot be taken into consideration to hold the factum of adulteration to fasten criminal liability upon the respondent. 6.In order to appreciate the rival contentions as above, it is necessary to have a look at the relevant provisions of law. Rule 7, Sub-rule (3) provides a time period for the Public Analyst for analysis of the food sample from the date of receipt of the same, i.e. 40 days. Next Rule 9(B) mandates that the copy of the said report is required to be sent to person concerned within a period of 10 days after institution of the prosecution. Now, Section 13(2) of the Act provides that if the person concerned wants to have the food samples reanalyzed, he has to make an application within 10 days from the date of receipt of the copy of the report of the Public Analyst. The time period so prescribed have to be said to have been so done keeping in mind the aspect of clearly analysis and that during the period the food articles remains fit for the same so as to see that the person is given no scope to claim prejudice in the matter. The time period so prescribed have to be said to have been so done keeping in mind the aspect of clearly analysis and that during the period the food articles remains fit for the same so as to see that the person is given no scope to claim prejudice in the matter. If that is so then certainly in respect of option that law provides for the person, it cannot be said that any amount of delay in the matter is of no consequence and the prejudice cannot be claimed for the same. Section 13(2) of the Act, no doubt, confers a valuable right on the accused to prove his innocence by getting the sample tested by the Central Food Laboratory and the choice rests upon him as provided under Section 13(2). The certificate of the Central Food Laboratory supersedes the report of the Public Analyst. So, it is clear that in case the sample is found by the Central Food Laboratory to be unfit for analysis due to decomposition due to passage of time or for any other reason attributable to the conduct of the prosecution, the valuable right as referred to above, would stand denied. This certainly would constitute itself sufficient prejudice to the accused so as to entitle him to acquittal. So the provision of Section 13(2) aims to provide a safety valve to the accused. Whether a sample collected would be fit for human consumption would depend upon the nature of commodity and no hard and first rule can be laid down regarding any particular time after which sample would not be sent for analysis. The determining factors, therefore, remains the nature of commodities vis-a-vis the period of delay. 7.Adverting to the factual aspect of the case, the Food Inspector-P.W.3 collected the samples on 22.08.1992 and as per his evidence, he sent the sample bottles to the Public Analyst on 23.08.1992. Reports of the Public Analyst’s Exts.3 and 4 dated 30.09.1992 were received from the Office of the Chief District Medical Officer, Koraput on 08.08.1993, whereafter this P.W.3 placed the matter before the C.D.M.O., Rayagada for affording written consent, which in the present case is said to have been given on 05.07.1994 (Ext.5). Reports of the Public Analyst’s Exts.3 and 4 dated 30.09.1992 were received from the Office of the Chief District Medical Officer, Koraput on 08.08.1993, whereafter this P.W.3 placed the matter before the C.D.M.O., Rayagada for affording written consent, which in the present case is said to have been given on 05.07.1994 (Ext.5). P.W.3 next states to have filed the prosecution in the Court of the S.D.J.M., Rayagada on 07.07.1994 whereafter, as stated by him, he sent the copy of the said report under forwarding letter to the respondent which is said to have been received on 09.07.1994 as it reveals from the postal seal. So in this case for completion of the entire exercise, the period spent is from 22.08.1992 to 09.07.1994. The sample of food articles are Besan and Harad Dal and their nature can be well inferred as regards the ordinary period for which they remain fit for human consumption. The question arises as to whether even at that state, had a request been made by the respondent for sending the samples of the food items for analysis by the Central Food Laboratory, whether any fruitful result would have yielded. Taking into consideration the nature of the food articles from which the samples in the present case had been collected in the facts and circumstances of the case, I am inclined to hold that the respondent’s valuable right conferred under Section 13(2) of the Act has been prejudicially affected. The foundation of the prosecution thus crumbles. In view of the aforesaid conclusion, it is no more felt necessary to proceed further in respect of the other contentions of the learned counsel for the State regarding non-acceptance of reports of Public Analyst in respect of sample of Harad Dal and Besan as done by the trial Court being erroneous. 8.In view of the aforesaid discussion, this Court finds no illegality, irregularity and infirmity in the order of acquittal so as to warrant interference. The Government Appeal, thus, merits no acceptance and the same stands dismissed. Appeal dismissed.