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2019 DIGILAW 330 (ORI)

Bauribandhu Patro v. State of Orissa

2019-04-18

D.DASH

body2019
JUDGMENT : D. Dash, J. This revision has been filed questioning the judgment dated 27.7.2001 passed by the learned 2nd Addl. Sessions Judge, Berhampur in Crl. Appeal No. 57 of 1997(Crl. Appeal 256/96-GDC). The petitioner (accused) having been convicted for offence under section 16(1)(a)(i) of Prevention of Food Adulteration Act (for short, called the Act ) by the learned S.D.J.M., Berhampur in 2(C)CC no. 560 of 1992 and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for one month had filed the appeal . The appellate court has confirmed the said finding of guilt as also the order of sentence. 2. Prosecution case in short is that on 26.5.1992, P.W. 1 who was then the Food Inspector attached to the Berhampur Municipality had visited the grocery shop of the accused situated at Golapalli Street, in the town of Berhampur and when the accused was very much present in the shop and engaged in selling different variety of grocery articles to the customers for human consumption, the shop being inspected by P.W. 1, he suspected the Ground-nut oil and Turmeric powder kept for sale in the said shop for human consumption to be adulterated. The sample from those two food items being collected observing all such formalities as required under the rules in presence of the accused and the office peon, P.W. 2 when other independent persons did not come forward to cooperate, P.W. 1 prepared all required documents. Finally the samples were sent for analysis by Public Analyst. The Public Analyst while finding the sample of Ground-nut oil to be in conformity with the standards prescribed in the rule, found the sample of Turmeric powder as adulterated for the presence of foreign starches i.e. 10% of rice starches as detected which is in contravention of rule 44 (h) of the P.F.A. rules. The prosecution was then launched with the written consent of the Local Health Authority-cum-CDMO, Berhampur. The accused took the plea that he was having no shop at the relevant time and P.W. 1 had not purchased those grocery items from his shop. The prosecution was then launched with the written consent of the Local Health Authority-cum-CDMO, Berhampur. The accused took the plea that he was having no shop at the relevant time and P.W. 1 had not purchased those grocery items from his shop. His further plea was that his wife had a grocery shop and P.W. 1 took Ground nut oil and Turmeric powder from his residential house by force asking him to sign on some papers and utilised those for the purpose of launching the false prosecution against him. The trial court on the basis of the evidence of P.W. 1, the Food Inspector and P.W. 2 the office peon who had accompanied P.W. 1 at the time of said inspection has discarded the plea of this accused on those factual aspects about his not owning and running the shop and the allegations levelled against P.W.1. Finding the Turmeric powder which was being sold by the accused in his shop for human consumption as adulterated, the accused has been convicted visited with the sentence as aforesaid. The appellate court has concurred with all such findings by examining the evidence both oral and documentary at its level. 3. Mr. D.P. Dhal, learned counsel for the petitioner without going to question those factual findings rendered by the courts below in view of the defence taken by the accused and answered against the accused, attacks the finding of conviction of the accused for commission of offence under section 16(1)(a)(i) of the Act as returned by the trial court and confirmed in appeal on the ground of non-compliance of the mandatory provision of section 13(2) of the Act. According to him, in view of said non-compliance when the accused has been deprived of exercising the valuable right conferred on him under the statute in getting the second part of the sample re-analysed at the Central Food Laboratory and questioning the finding of the Public Analyst, the prejudice is writ large and on that very ground, the prosecution stands vitiated. He thus submits that the report of the Public Analyst Ext.10 cannot be pressed into service to hold that this accused was selling adulterated Turmeric powder for human consumption. He thus submits that the report of the Public Analyst Ext.10 cannot be pressed into service to hold that this accused was selling adulterated Turmeric powder for human consumption. He has next argued as regards the non-compliance of the rule 27 and 28 of the P.F.A rules by contending that no such evidence is there on record to show that P.W. 1 while sending the sample of two food items to the Public Analyst had sent the memorandum containing his specimen of the seal used while collecting the sample along with the sample to the Public Analyst as also a copy of the memorandum containing said specimen impression of the seal separately by registered post or any other mode. In view of such non-compliance, he contends that the report that has been given by the Public Analyst that the Turmeric powder sample was containing 10% of rice starches which is not permissible cannot be specifically said to be the report given after examination of the sample of Turmeric powder taken from the shop of the accused. He thus contends that for such non-compliance of mandatory provisions of Act and rules, the finding of conviction cannot be sustained. 4. Learned counsel for the State submits that when the documents relating to compliance of the provision of section 13(2) of the Act have been proved through P.W. 1, the Food Inspector who has also deposed on that score in the court which has remained unshaken, no finding as to noncompliance of the provision of section 13(2) of the Act can be returned and on that ground the conviction recorded against the accused cannot be faulted with. He further submits that when the very report of the Public Analyst finds mention that he had received the food sample with the memorandum containing specimen impression of the seal used at the time of taking the sample and had compared the same with the copy sent separately before the examination of the food sample, the submission that the finding of conviction is to fail for such non-compliance of rules has to fail. 5. Let me now address the first limb of submission advanced by the learned counsel for the accused. 5. Let me now address the first limb of submission advanced by the learned counsel for the accused. Law is well settled position that the provision of section 13(2) of the Act which provides a valuable right to the accused in getting the report of the Public Analyst as to the adulteration of the food sample collected from him further tested by reanalysis of the same at the Central Food Laboratory, stands for mandatory compliance in a prosecution for sale of adulterated food item for human consumption. It has also been said in catena of decisions by the Hon ble Apex Court as also this Court that said provision is mandatory that first of all for the reason that accused must be made aware of the result of the analysis of the food and secondly, that he must be made aware of his right to get it re-analysed in questioning the report of the Public Analyst if he so feels aggrieved, by making an application before the concerned Court where the prosecution has been launched in getting the second part of the sample so sent and in that case the report of Central Food Laboratory superceedes. So for the purpose it is now necessary to go through the evidence of P.W. 1 on that score. It has been deposed by him that he received the Public Analyst report dated 4.7.98 to the effect that Turmeric powder sample is adulterated. This report has been proved as Ext. 10. It has further been stated that he prepared the prosecution report and presented the same with the documents before the Local Health Authority-cum-CDMO who gave his consent in writing. As regards the compliance of the provision of section 13(2) of the Act during re-examination he has stated that Ext. 16 is the office copy of the intimation sent by the CDMO to the accused along with the report of the Public Analyst relating to the Turmeric powder. He has proved the postal receipt as Ext.17 in support of dispatch of the letter apprising the accused of his right available and the acknowledgement due as Ext. 18. The accused in his statement under section 313 Cr.P.C. has clearly said to have no knowledge about that report and receipt of the same with any letter. P.W. 1 is not stating that it is he who had posted that letter Ext. 18. The accused in his statement under section 313 Cr.P.C. has clearly said to have no knowledge about that report and receipt of the same with any letter. P.W. 1 is not stating that it is he who had posted that letter Ext. 16 annexing the copy of report of the Public Analyst to the accused. Although, it is indicated in the provision that the Local Health Authority is to send that letter with the report of the Public Analyst to the accused, when this petitioner is not coming forward to say that he himself had sent it to the accused enclosing the copy of the report of the Public Analyst with letter apprising the petitioner the result of analysis of the food item and the right as available to him, merely proving the documents such as the copy of the letter, the postal receipt and acknowledgement due would not suffice the purpose and that in my considered view is not enough to conclude that the mandatory provisions contained in section 13(2) of the Act have been complied with in letter and spirit. In such state of affair in the evidence let in by the prosecution, this Court finds that due compliance of mandatory provision of section 13(2) of the Act has not been proved in the case through acceptable evidence and thus the findings of the courts below on that score cannot be sustained which appears to have been so returned merely going through the documents and ignoring the fact that there is no evidence as regards their actual dispatch by post. In view of the above, the second limb of submission of the learned counsel for the petitioner is not felt necessary to be answered. With the answer to the first point, the impugned judgments of conviction and orders of sentence passed by the courts below are hereby set aside. 6. The CRLREV stands allowed.