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2014 DIGILAW 822 (ORI)

State of Orissa v. V. Satyanarayan

2014-12-01

D.DASH

body2014
JUDGMENT The State in this appeal has called in question the order of acquittal passed by the learned Judicial Magistrate, First Class, Bissam Cuttack in 2(c) C.C. No.04 of 1995/T.R. No.264 of 1995 acquitting the respondents of the charge under Sections 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (herein after called as the “Act”). 2.Prosecution case is that on 11.03.1992 around 10.30 AM, the Food Inspector, Rayagada and Gunupur P.W.1, had been to the grocery shop of the respondent No.2 with some vigilance staff of Rayagada division and his peon. He then found respondent No.1 to be transacting the business in the said shop and found there the food articles, such as edible oil, varieties of dal, besan, atta etc exposed for sale for human consumption. P.W.1 then suspected besan kept in a gunny bag and chilly powder in the packets to be adulterated. So, he issued notice in Form No.VI to the respondent No.1 expressing his intention in that regard. Then, he purchased 750 grams of besan and 600 grams of chilly powder (six packets, each of 100 grams) on payment of price. P.W.1 then divided the purchased besan into three equal parts and put them into three empty, clean and dry bottles. He corked, labelled those, wrapped by papers labels and affixed the paper slips. The purchased chilly powder packets were divided into three parts, each part containing two packets and those were tied together, lebelled and wrapped by paper followed affixation of the paper slips. The signature of respondent No.1 was taken on all those. It is further stated that the chilly powder packets were not labeled under the provision of Rule 32 (c) and (f) of the P.F.A. Rules. 3.On 12.03.1992, the sample bottles containing besan and one part of the sample of chilly powder carrying two packets were sent to the Public Analyst, Orissa, Bhubaneswar for analysis along with the memorandum containing the specimen impression of the seal used for sealing the samples. Also copies of memorandums containing specimen impression of the seal were sent separately. The samples were dispatched through the special messenger. On 04.08.1992, the P.W.1 received the report of the Public Analyst. The Public Analyst found both the samples of besan and chilly powder to be adulterated. Also copies of memorandums containing specimen impression of the seal were sent separately. The samples were dispatched through the special messenger. On 04.08.1992, the P.W.1 received the report of the Public Analyst. The Public Analyst found both the samples of besan and chilly powder to be adulterated. So, after local Health Authority (CDMO), Rayagada gave the written consent, the prosecution report was lodged on 21.02.1995 and that is how the respondents faced the trial. 4.During trial, prosecution examined three witnesses. As already stated, P.W.1 is the Food Inspector. P.Ws.2 and 3 are those, who had accompanied him to the shop of the respondent No.2. The documents right from the first, notice in Form VI, cash memo etc. have been proved. More importantly the reports of the Public Analyst have been marked as Ext.18 and 19. The defence has examined none and their plea is one of complete denial. 5.The trial Court on examination of the evidence has held that the Public Analyst reports cannot be accepted as it has not been established by clear and cogent evidence that the samples sent were the proper representation of the whole lot. It has found the evidence to be unsatisfactory to show the complicity of the respondent No.2 as the owner of the shop. With all these, the trial Court has acquitted the respondents. 6.Learned counsel for the State submits that such conclusion arrived at by the trial Court are not legally tenable. According to him, it was not necessary for the prosecution to prove that the sample of besan was true representative of the whole or even of the quantity of besan purchased and also as regards other item i.e. chilly powder. His further contention is that so far as those food items are concerned, such concept is foreign as part of the whole lot makes no difference. So, he urges such order of acquittal as wholly unmerited one and thus needs interference. 7.Learned counsel for the respondents fairly contends that the grounds on which acquittal has been recorded may not stand the legal scrutiny. So, he urges such order of acquittal as wholly unmerited one and thus needs interference. 7.Learned counsel for the respondents fairly contends that the grounds on which acquittal has been recorded may not stand the legal scrutiny. However, he contends 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 respondents and had they even then applied for reanalysis of the second parts of the samples, no purpose would have been served as the delay in the present case by then was 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 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. It is contended that the second part of sample of chilly powder packets being not produced in Court, the report on that score in the facts and circumstances of the case is not to be accepted. 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 of those food articles to fasten criminal liability upon the respondents. 8.In order to appreciate the above contention, it is necessary to have a look at the relevant provisions of law. Sub-Rule (3) of Rule-7 of the PFA Rules 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 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 sample 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. Now, Section 13(2) of the Act provides that if the person concerned wants to have the food sample 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 fixed keeping in mind the aspect of early analysis and that during the period the food articles remain 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. 9.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 Good 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. 10.Adverting to the factual aspect of the case, the Food Inspector-P.W.1 collected the samples on 11.03.1992 and as per his evidence, on the next day those were sent for Public Analyst. Reports of the Public Analyst’s Exts.18 and 19 dated 23.04.1992 came to be received by P.W.1 on 04.08.1992. Thereafter, P.W.1 placed the matter through the proper channel. 10.Adverting to the factual aspect of the case, the Food Inspector-P.W.1 collected the samples on 11.03.1992 and as per his evidence, on the next day those were sent for Public Analyst. Reports of the Public Analyst’s Exts.18 and 19 dated 23.04.1992 came to be received by P.W.1 on 04.08.1992. Thereafter, P.W.1 placed the matter through the proper channel. Only on 21.02.1995 the Local health authority, CDMO, Koraput for according written consent, whereafter prosecution report was submitted in the Court and then copies of the report of the Public Analyst along with forwarding letter are said to have been sent. So, it remains the fact that after a period of three years, the respondents are given the information that they may exercise their right by sending for further analysis in the Central Food Laboratory. The samples of food articles are besan and chilly powder 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 the stage, had a request been made 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 respondents’ valuable right conferred under Section 13(2) of the Act has been prejudicially affected. As regards other violation regarding Rule 33(c) & (f) of the Rules in respect of chilly powder packets, the submission of the learned counsel for the respondent has the force since the prosecution has withheld the second part of the samples of chilly packets from their production in Court for verification especially when P.W.1 is not deposing that he had noticed such deficiencies. The foundation of the prosecution thus crumbles. The above view of mine finds support from the decision of this Court in case of M/s. Narain Extractions Pvt. Ltd. v. P.C. Mishra, Food Inspector, (1995) 9 OCR 506. In view of above discussion, this Court find no justification to interfere with the order of acquittal. The appeal, thus, merits no acceptance and the same stands dismissed. Appeal dismissed.