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2021 DIGILAW 253 (ORI)

Sukadev Sahoo v. State Of Odisha

2021-06-18

S.K.PANIGRAHI

body2021
JUDGMENT S. K. Panigrahi, J. - The present petitioner, who is in custody, has filed the instant bail application under Section 439 of Cr. P.C. corresponding to G.R. Case No.1592 of 2020 based on Chauliaganj P.S. Case No.471 of 2020 pending before the learned Judicial Magistrate First Class, City, Cuttack. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 420, 272, 273/34 of I.P.C read with Sections 50, 51, 59 and 63 of Food Safety and Standards Act, 2006. Prior to the instant application, the petitioner also approached the learned First Additional Sessions Judge, Cuttack vide Bail Application No.35 of 2021 arising out of G.R. Case No.1592 of 2020 which was rejected on 02.02.2021. 2. Shorn of unnecessary details, the facts of the present case is that on 30.12.2020, the I.I.C. of Chauliaganj P.S. along with A.S.I. Badal Kumar Mallick and Constable B.N. Sahoo were on patrolling duty. The I.I.C. received information that a bus from Kolkata had arrived at OMP Square, Cuttack carrying adulterated synthetic paneer for sale within Cuttack city. Upon arrival at around 10.15 A.M., the I.I.C. noticed that two people were standing under the over bridge at OMP square with two plastic jarkins. As the Police started to approach, the two people attempted to flee from the spot. While one person managed to escape, the other was apprehended who is the instant petitioner. In the presence of independent witnesses, a verification of the contents of the jarkins was conducted and it was found that the jarkins contained paneer. The general colour, texture and odour of the paneer did look deceptive which led to the suspicion in the mind of the I.I.C regarding the fact that the seized paneer was adulterated. Upon questioning the petitioner, the petitioner disclosed that he along with one Pramod Swain, who had escaped from the spot, had purchased the paneer from Kolkata to sell the same in Cuttack market. The petitioner further added that the aforementioned Pramod Swain and another Shiba Kathua were engaged in the business of selling adulterated paneer at high profit margins thereby cheating the general public. It is to be noted here that the petitioner was unable to produce any license or document for transportation of the paneer or for carrying out such business. 3. Upon registration of the FIR, the I.O. started investigation. It is to be noted here that the petitioner was unable to produce any license or document for transportation of the paneer or for carrying out such business. 3. Upon registration of the FIR, the I.O. started investigation. He arrested and forwarded the accused-petitioner to the Court of learned JMFC, City, Cuttack on 31.12.2020. The petitioner has been in custody since then. A sample of the seized paneer was forwarded to the Food Safety Officer, Cuttack for a report on the genuineness of the sample. Vide letter dated 28.01.2021, the Health Officer, Cuttack Municipal Corporation based on the report of the Food Analyst informed the I.I.C. that the sample of paneer seized was substandard and not fit for human consumption as per the definition of the term "substandard quality" as defined u/s 3.1(zx) of Food Safety and Standards Act, 2006. The paneer is required to contain at least 50% of milk fat to be safe for human consumption, but it was found to have only 10.8% of milk fat, indicating thereby that it was some substance other than paneer which render it not fit for human consumption. 4. The learned Counsel for the petitioner contends that the petitioner is not connected to the offences in any way and has been falsely implicated in the matter. It was also submitted that no incriminating material is available against the Petitioner and therefore he should not be kept in custody. 5. Per contra, the learned counsel for the State opposed the application and prayed for rejection of the Bail Application contending that on the basis of the allegations and the material available on record, it was prima facie clear that the petitioner was involved in the commission of the offences. It was also submitted that so far, all attempts to apprehend the other accused have not been successful as the other accused have been absconding. Therefore, now at this stage, releasing the petitioner might enable him to tamper with evidence. As the investigation is pending, custodial interrogation is required in the matter to unearth the larger nexus of persons involved. 6. Heard learned counsel for the parties. The accusations against the petitioner relate to the commission of offences that affect the health and safety of the general public. As the investigation is pending, custodial interrogation is required in the matter to unearth the larger nexus of persons involved. 6. Heard learned counsel for the parties. The accusations against the petitioner relate to the commission of offences that affect the health and safety of the general public. Being involved in a marketing and sale plan to feed spurious and unsafe paneer to the public and it has a direct effect on the health and well-being of the public, it should, therefore, need to be viewed very seriously. 7. The petitioner has been charged with Sections 420, 272, 273/34 of I.P.C read with Sections 50, 51, 59 and 63 of Food Safety and Standards Act, 2006. Generally, while considering an application for bail, the factors to be considered, are: (i) whether there is any prima facie or reasonable ground, as the case may be, to believe that the accused had committed the offence, (ii) the nature and gravity of the offence, (iii) severity of the punishment if the accused happens to be convicted, (iv) chances of the accused absconding or fleeing away, if given the opportunity of bail, (v) the character, behaviour, antecedents, means, position and standing of the accused in the society, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with or the investigation being interfered with. Reference may be had to the principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 where the Hon'ble Supreme Court relying upon its previous decision in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 held that; "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from no-application of mind. Any order devoid of such reasons would suffer from no-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge." 8. Since the matter is concerning the issue of food safety and standards, a perusal of Section 18 of the Food Safety and Standards Act, 2006 reveals that the foundation is preservation of human life and health while protecting the consumer's interest and by having fair practices in all kinds of food and trade and maintenance of food safety and standards and practices. The Hon'ble Supreme Court in Centre for Public Interest Litigation v. Union of India, (2013) 16 SCC 279 held that; "25. We may emphasise that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India." The Hon'ble High Court of Bombay in The Association of the Traders v. Union of India and Ors.,2015 SCCOnLineBom 4811 held as under; "43. We may also refer to the recent decision of the Supreme Court in the case of "Centre for Public Interest Litigation v. Union of India, (2014) AIR SC 49". In the context of an issue dealing with the harmful effect of soft drinks on human health and in considering the provisions of FSS Act on various principles of food safety as enshrined in Section 18 and other provisions of the Act, the Supreme Court has held that a paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India. 44. 44. It is thus clear from the enunciation of the above legal principles as laid down by the Supreme Court that it is not only a statutory requirement for the food Authorities to have a regime of making available safe food products to the consumer but it is a constitutional requirement emanating from the provisions of Article 21 read with Article 39 and 47 of the Constitution of India." The Hon'ble High Court of Kerala in Haripriya Traders v. Union of India, 2014 4 KHC 576 held as under; "14. There is constitutional duty cast upon the Food Safety and Standards Authority as rightly pointed out by the learned counsel for the Food Safety and Standards Authority relying on the decision of the Hon'ble Supreme Court in the Centre for Public Interest Litigation case (supra). The State has the duty to protect human life as well, which may put to threat on account of contamination or adulteration in food substance." 9. From the aforesaid legal pronouncements as well as the legal provisions as discussed above, it can be seen that the issue regarding contaminated/adulterated food is a sensitive issue and the Courts take it very seriously. The right to life, the most important fundamental right of every citizen guaranteed under Article 21 of the Constitution includes in it the right to healthy food and therefore, any food article which is hazardous or injurious to public health is a potential danger to fundamental right to life. In India, we are too lenient with health concerns. In fact, food safety is crucial for both progress and economic development of a country. Scrupulous activities performed with a profit motive to the detriment of the society need to be viewed seriously. 10. Considering the nature and gravity of the accusation, the nature of supporting evidence, availability of prima facie case against the petitioner especially since this involves an offence pertaining to public health wherein further investigation of the case is under progress and taking into account the apprehension of the petitioner in tampering with the evidence, in the larger interest of the society, I am not inclined to release the petitioner on bail. 11. Accordingly, the Bail Application sans merit, stands dismissed. 11. Accordingly, the Bail Application sans merit, stands dismissed. However, it is clarified that the court in seisin over the matter will proceed independently to decide the trial on the merits of the case without getting influenced by the observations made hereinabove.