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2014 DIGILAW 843 (ORI)

State of Orissa v. Raj Kumar Agrawalla

2014-12-05

D.DASH

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JUDGMENT The State in this appeal has called in question the order of acquittal passed by learned J.M.F.C., Bissam Cuttack in II (C) C.C. Case No.08 of 1996 (T.R. No.414 of 1996) acquitting the respondent No.1 who is the proprietor of M/s. Ganga Jamuna Store which has been shown as respondent No.2 of the charge under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. It may be stated that right from the prosecution report till this Court, the mistake has remained in showing the proprietary concern as an accused and therefore now it is simply referred to as the respondents. 2.Prosecution case is that on 09.01.1996 around 11.00 am, Food Inspector, Rayagada, P.W.1 had been to the shop of respondent and found the articles of food such as edible oil, besan, harad dal etc. to have been exposed for sale for human consumption. He suspected the harad dal, besan and mustard oil to be adulterated. So, serving due notice in Form No.VI, expressing the intention to purchase those food articles for their analysis by the public analyst, he purchased 750 grams of harad dal, 375 grams of mustard oil and 750 grams of besan on payment of price. It is stated that P.W.1 thereafter divided each of the purchase food items in three parts in equal proportion and then kept those in empty, clean and dry glass bottles. He further packed and sealed those observing required formalities in accordance with the provisions of the rules. It is also stated that one part of the samples of the each item of the food articles as above were sent to the public analyst along with the memorandum containing specimen impression of the seal used for the purpose of sealing by registered parcels. Also copies of such memorandums as enclosed were separately sent to the public analyst by registered post. The public analyst reported the harad dal and besan to be adulterated being not in conformity with the standard as prescribed in the rules. The harad dal has been found to be adulterated for the presence of non-permitted colouring material i.e., metani yellow and the besan has been found to be adulterated for containing khesari starches which is prohibited for sale under the rule. The harad dal has been found to be adulterated for the presence of non-permitted colouring material i.e., metani yellow and the besan has been found to be adulterated for containing khesari starches which is prohibited for sale under the rule. On receipt of public analyst report, P.W.1 placed the matter before the Local Health Authority, CDMO for according written consent as required under Section 20 of the Act. The same having been given, the prosecution came to be launched. After institution of the prosecution, the copies of the report of the public analyst were sent to the respondent by registered post with A.D. and is said to have been received. 3.From the side of the prosecution two witnesses have been examined i.e., the Food Inspector as P.W.1 and his Peon, P.W.2. Documents of course has been admitted in evidence from their side right from the notice for purchase of the food articles and other documents prepared by P.W.1 and also those of the office of Local Health Authority. The defence has examined one witness. 4.The plea of the defence is of ignorance as regards the report of the public analyst. 5.The trial Court has finally acquitted the respondent relying the ratio upon the decision of this Court in case of Kirtan Bhoi v. State of Orissa; 1996 OCR 502 and then applying the same to the facts and circumstances of the case and also the evidence laid. It has been said that the proSection has failed to establish the facts as regards the actual dispatch of the report of the public analyst to the respondents after launching of the prosecution to enable to avail the opportunity and exercise their valuable right as enjoined under Section13(2) of the Act. Thus, here the trial Court has found the violation of the mandatory provisions of Section 13(2) of the Act. According to the trial Court, the evidence as discussed in the said decision remains the same so far as the case in hand is concerned. Thus, here the trial Court has found the violation of the mandatory provisions of Section 13(2) of the Act. According to the trial Court, the evidence as discussed in the said decision remains the same so far as the case in hand is concerned. 6.Learned counsel for the State submits that when in the case, there has been dispatch of the public analyst report to the respondents by registered post with AD and when those documents, such as postal receipts, acknowledgement due cards, containing the signatures of the respondent as well as copies of the reports of the public analyst and also the forwarding report have been proved there remains no escape from coming to a conclusion that the reports have been received by the respondents and the presumption under the law gets squarely drawn. Therefore, he urges that the order of acquittal is unmerited one. 7.Learned counsel for the respondent submits that the trial Court having found the evidence on record to be the replica of the evidence as discussed in the judgment of the decision of this Court in case of Kirtan Bhoi (supra) and so having acquitted the respondents, at this distance of time after lapse of about 18 years, it would be travesty of justice to set at naught the said order of acquittal by going to question the correctness of the earlier decision of the Court and putting it to test, taking into account later development. Therefore on this ground alone, he urges that the order of acquittal is not liable to be interfered with when the trial Court’s view cannot be said to be so unreasonable that it is not acceptable for even a moment. 8.In the instant case, it is seen that P.W.1 has deposed that such reports under the forwarding letters had been sent by the CDMO to the respondents. But none from the office of the CDMO has been examined nor any person associated with such process of dispatch in any manner, has come to the dock. P.W.1 has proved the forwarding letters and copies of the postal receipts and acknowledgement due cards as Exts.12, 13 and 14 respectively. Thus, there remains no direct evidence as regards the dispatch of the reports of public analyst by registered post to the respondents when there remains the specific denial by the respondent as regards the factum of receipt of the public analyst reports. Thus, there remains no direct evidence as regards the dispatch of the reports of public analyst by registered post to the respondents when there remains the specific denial by the respondent as regards the factum of receipt of the public analyst reports. So, the trial Court has taken a view that the absence of such evidence cannot be lightly overlooked. Moreover, the trial Court has relied upon the decision of this Court in case of Kirtan Bhoi (supra) in which similar evidence being there this Court have found non-compliance of the provision Section of 13(2) of the Act. Thus, the trial Court’s ultimate conclusion can’t be said to be ill founded. 9.In view of the aforesaid, at this distance of time this Court is not inclined to further examine the matter in the light of the submission of the learned counsel for the State questioning the correctness or otherwise of the decision relied upon and consequently the sustainability of the order of acquittal as passed in the instant case. 10.In the result, the appeal stands dismissed. Appeal dismissed.