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High Court Of Orissa
K. P. MOHAPATRA
RAMA CHANDRA SAHU - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION 14 Of 1983
Decided On : 12/10/1986
PREVENTION OF FOOD ADULTERATION ACT - SECTIONS 10(7), 13(2), 20 - RULES 7(1), 18 - MANDATORY PROVISIONS - NON-COMPLIANCE - VITIATES CONVICTION.
Fact of the Case:
Petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act for selling adulterated common salt. The Food Inspector purchased the salt, divided it into three parts, and sent one part for examination by the public analyst. The public analyst reported that the salt was adulterated. The petitioner denied the charges, but the trial court and the appellate court upheld the conviction.
Finding of the Court:
The court found that the mandatory provisions of Sections 10(7), 13(2), and 20 of the Act, as well as Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, were not complied with. The court held that the non-compliance of these provisions vitiated the conviction of the petitioner.
Issues: 1. Whether the mandatory provisions of Section 10(7) of the Act were complied with. 2. Whether the mandatory provisions of Section 13(2) of the Act were complied with. 3. Whether the mandatory provisions of Section 20 of the Act were complied with. 4. Whether the mandatory provisions of Rules 7(1) and 18 of the Prevention of Food Adulteration Rules were complied with.
Ratio Decidendi: 1. The court held that the Food Inspector had made an attempt to secure the presence of independent witnesses at the time of making the statutory purchase of the salt, but they were reluctant to be witnesses. Therefore, the prosecution was relieved of its obligation under the provisions of Section 10(7) of the Act. 2. The court held that a copy of the report of the public analyst was not delivered to the petitioner in the manner prescribed in Rule 9-A of the Rules. Therefore, there was non-compliance of the mandatory provisions of Section 13(2) of the Act. 3. The court held that the written consent required under Section 20 of the Act is not an empty formality. It should indicate that the authority giving the written consent was himself satisfied about the correctness of the allegations against the accused. In the present case, the written consent did not reveal application of mind to the facts of the prosecution case. Therefore, there was non-compliance of Section 20 of the Act. 4. The court held that Rule 18 of the Rules, which requires a copy of the memorandum and a specimen impression of the seal used to seal the packet to be sent to the public analyst separately, is mandatory in nature. In the present case, the specimen impression of the seal was not sent separately, but was sent along with the copy of the memorandum. Therefore, there was non-compliance of Rule 18 of the Rules.
Final Decision: The court allowed the revision petition, set aside the order of conviction and sentence, and acquitted the petitioner.
K. P. MOHAPATRA, J.
( 1 ) THE order of the learned Additional Sessions Judge, Berhampur, upholding the conviction and sentence of the petitioner under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (for short, 'the Act') is under challenge.
( 2 ) SHORN of unnecessary details the prosecution case stated in brief is that the petitioner owns a grocery shop at Kalingia in Phulbani district. On 18-2-1978, Food Inspector, Phulbani (P. W. 2) inspected the grocery shop and suspected common salt exposed for sale for human consumption to be adulterated. Therefore, he made statutory purchase of 750 grams of that commodity on payment of price and after observance of the formalities according to rules, divided the same into three equal parts and kept each part separately in dry clean bottles, sealed and labelled them and sent one of the samples for examination by the public analyst. The public analyst reported in his report (Ext. 5) that the sample of common salt was adulterated. After obtaining the consent of the Chief District Medical Officer, Phulbani, prosecution was launched against the petitioner.
( 3 ) THE plea of the petitioner was a denial of the entire episode connected with the prosecution case, but the learned Judicial Magistrate, who held the trial and the learned Additional Sessions Judge, who heard the appeal, held concurrently that the Food Inspector (P. W. 2) had purchased common salt from the grocery shop of the petitioner which was found to have been adulterated after chemical examination by the public analyst in his report, Ext. 5. Therefore, the petitioner was convicted for the offence under S. 16 (1) (a) (i) of the Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for a further period of one month.
( 4 ) MR. U. C. Panda, learned counsel appearing for the petitioner, strenuously urged that the trial was vitiated for non-compliance of the mandatory provisions of Ss. 10 (7), 13 (2) and 20 of the Act and R. 18 of the Prevention of Food Adulteration Rules (for short, 'the Rules' ). The legal argument requires careful analysis.
( 5 ) THE first point for consideration is whether the mandatory provisions of S. 10 (7) have been complied with by the prosecution or not. At the outset, in this
connection, I would quote the following from a decision of this Court in Criminal Revn. No. 403 on 1982 (Bhagirathi Das v. State of Orissa) for elucidating the principle relating to the mandatory character of S. 10 (7) of the Act : Reported in (1986) 2 Orissa LR 691. "the second contention relates to noncompliance of mandatory provisions of S. 10 (7) of the Act according to which the Food Inspector shall at the time of inspection, collection and seizure of samples from any shop premises call one or more persons to be present and take his or their signature (s ). In this connection reference has been made to three decisions, such as AIR 1974 SC 789, Ram Labhaya v. Municipal Corporation of Delhi, (1986) 62 Cut LT 426, Bijoy Kumar Singh v. State of Orissa and (1986) 62 Cut LT 480, Kedar Prasad Gupta v. State, in all these cases it has been held that S. 10 (7) of the Act is mandatory. The Food Inspector must draw and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in sub-sec. (7) of Section 10. But as he cannot compel their presence and if such witnesses when called do not come forward to remain present, then the prosecution must be relieved of its obligation under the provisions and in such cases non-compliance of S. 10 (7) shall not vitiate the trial. In such cases if the evidence of the Food Inspector is found to be truthful, reliable and credible, there is no impediment cast on the court not to believe his evidence so as to base the conviction. " (Also see Criminal Revn. No. 9 of 1982 (Mangulu Sahu v. State of Orissa) decided on 21st Nov. , 1986 ).
( 6 ) NOW
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