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IN THE HIGH COURT OF ORISSA AT CUTTACK CRREV No. 179 of 2001 From the judgment dated 31.3.2001 passed by the learned 2nd Addl. in Criminal Appeal No.48 of Sessions Judge, Berhampur 1997/Criminal Appeal No.183/96-GDC confirming the judgment of conviction and sentence dated 22.07.1996 passed by the learned S.D.J.M., Berhampur in 2 (C) CC No.164/1994 (T.R. No.585 of 1994). Rabindra Sahu … Petitioner State of Orissa … Opposite Party -versus- Advocates appeared in this case through Hybrid Mode : For Petitioner : Mr. S.S.Rao, Advocate For Opposite Party : Mr. Sibani Shankar Pradhan Addl. Govt. Advocate CORAM: JUSTICE SAVITRI RATHO ………………………………………………………………………. Date of Judgment : 11.08.2022 ……………………………………………………………………….. Savitri Ratho, J. The petitioner has filed this Criminal Revision challenging his conviction and sentence under Section 16(1) (a) (i) of the Prevention of Food Adulteration Act (in short “PFA Act”) read with Rule–7 (1) and 32 of the Prevention of Food Adulteration, CRREV No.179 of 2001 Page 1 of 11 //2// Rules (in short the “PFA Rules"), by the learned S.D.J.M., Berhampur in 2 (c) CC No.164/1994 (T.R. No.585 of 1994), which
Legal Reasoning
has been confirmed by the learned 2nd Addl. Sessions Judge, Berhampur in Criminal Appeal No.48 of 1997/Criminal Appeal No.183/96-GDC,vide judgement and order dated 31.3.2001. The petitioner had been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for six months more. 2. The brief facts of the prosecution case is that the petitioner is the owner of a sweet shop named and styled as
Legal Reasoning
“Srikhetra Mistanna Bhandar” located at Janana Hospital Road, Berhampur. On 11.12.1992 the Food Inspector of Berhampur Municipality visited the sweet shop of the petitioner and found the accused was selling sweets and mixture for human consumption. On demand the petitioner failed to produce the food licence. The Food Inspector inspected the sweets and mixture which were exposed for sale and suspected them to be adulterated and misbranded and wanted to take sample of the same for analysis by Public Analyst. Therefore, after observing all formalities, he purchased 1500 grams of Kamala Bhog and 3 packets of mixture each containing 200 CRREV No.179 of 2001 Page 2 of 11 //3// grams. Then he divided the purchased Kamala Bhog into three equal parts and then he sent the same to the Public Analyst in accordance with the Act and Rules. After analysis, the Public Analyst furnished his report that the sample of Kamala Bhog is up to the standard, but the sample of mixture is misbranded as there was no label on the packets and violative of Rule 32 of the P.F.A. Rules. Then, the Food Inspector prepared the prosecution report against the petitioner for selling misbranded articles and placed the report before the C.D.M.O.-cum-Local health Authority, Ganjam, for sanction. After obtaining sanction, prosecution report was filed before the Court of the learned S.D.J.M., Berhampur. 3. In order to prove its case, the prosecution examined two witnesses. The defence examined two witnesses. The prosecution exhibited sixteen documents. The prosecution also proved two material objects. M.Os.I and II which are the two sealed packets containing mixture. P.W.1 Ashok Kumar Choudhary is the Food Inspector and the complainant. P.W.2. Raghunath Pradhan is the health worker/vaccinator of Berhampur Municipality. D.W.1 is the CRREV No.179 of 2001 Page 3 of 11 //4// accused Rabindra Sahu. D.W.2 is Narayan Jena, a neighbouring betel shop owner. Ext.1 is the copy of notice, Ext.2 is the money receipt, Exts.3 and 4 are the office copy of memorandum, Exts.5 and 6 are the postal receipts, Exts.7 and 15 are the postal A.D, Ext.8 is the intimation bearing letter no.281 dated 11.12.1992. Ext.9 is the receipt granted by C.D.M.O., Ext.10 is the report of public analyst, Ext.11 is the forwarding report of CDMO, Berhampur, Ext.12 is the written consent of CDMO, Ganjam, Berhampur, Ext.13 is the notice issued to the accused under Section 13(2) of P.F.A. Act. Ext.14 is the postal receipt. Ext 15 is the postal AD card and Ext.16 is the letter of the CDMO. 4. The learned S.D.J.M., Berhampur after taking into account the materials available on record vide judgment and order dated 22.7.1996 passed in 2 (C) C.C. No.164 of 94 (T.R. No.585 of 94), convicted the petitioner for commission of the offence under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and to undergo R.I. for six months and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo R.I. for one month more. CRREV No.179 of 2001 Page 4 of 11 //5// 5. The learned Addl. Sessions Judge, Berhampur dismissed Criminal Appeal No.48 of 1997/Criminal Appeal No.183/96-GDC vide judgment and order dated 31.03.2001 and confirmed the judgment and order passed by the learned SDJM holding that the minimum sentence had been awarded to the petitioner by the learned trial Court. 6. Learned counsel for the petitioner has submitted that: a) Section 2 (xi) of the P.F.A. Act defines ‘misbranding’ to mean that if some other brand is reflected to represent the goods belonging to another brand. In the instant case, there was no label at all. The offence of misbranding is therefore not attracted. Ext.2 is the receipt under which inspector said to have purchased the mixture. Assuming the document to be a cash memo, there is no mention of any brand therein. He has relied on the case Consumer Action Group vs. Cadbury Industries reported in (2000) 9 SCC 56, stating that the Supreme Court has observed that when the cash memo does not show the brand name, there is no question of misbranding. He has also relied on the case of MDH Pvt. Ltd. vs. State reported in 1993 FAJ 95 Delhi. CRREV No.179 of 2001 Page 5 of 11 //6// b) The petitioner had got valid food licence at the time of occurrence and he only dealt with sweets and does not sell khara items like mixture. His hotel was running in a room of his own residential house where he lived with his wife and three children and 3 packets of mixture was kept by him on the window frame of his residential house meant for consumption of his children. They were not meant for sale but the Food Inspector while purchasing “Kamala Bhog” forcibly took those three packets of mixture and compelled the petitioner to put his signature in some papers. As the prosecution has not been able to prove that the mixture was kept for sale, his conviction is liable to be set aside. c) Prosecution cannot be based solely on the report of the Analyst as prosecution has not been able to prove that the mixture was kept for sale. He has relied on the decision in the case of Uma Shankar Agarwala vs. Municipal Corporation of Calcutta & Others reported in 1992 FAJ 110, in support of his submission. d) Mandatory provisions in Rule -7 (i), 14 to 18 have not been complied and therefore it cannot be stated with certainty that the packets of mixture sent to the Public Analyst where in the fact the mixture packets which were taken from his shop. He has relied on CRREV No.179 of 2001 Page 6 of 11 //7// the decision in the case of Satyanarayan Choudhury vs. State of Orissa reported in (1993) 6 OCR 569. e) In case this Court is not inclined to interfere with the conviction of the petitioner, as the offence is a technical one and the food items were not found to be adulterated and hence not injurious to human health, the sentence should be modified to fine and the petitioner should not be sent back into custody thirty years after the occurrence. He has relied on the decision of Krishna Gopal Sharma vs. Govt of NCT reported in (1996) 4 SCC 513, in support of his submission. 7. Mr. S.S. Pradhan, learned Additional Govt. Advocate has submitted that the prosecution has proved through P.W.1 and P.W.2 that the petitioner had kept the mixture packets for sale and in fact the same have been purchased by P.W.1 and he has been granted a receipt vide Ext.12. For proving the offence of misbranding, it is not necessary to prove that name of some friend was being used by the accused and absence of any label of the manufacturer and manufacturing date will also amount to misbranding. He however admitted that the report of the Public CRREV No.179 of 2001 Page 7 of 11 //8// Analyst did not show that the petitioner was selling adulterated food stuff. 8. Section 2 (ix) (k) of the PFA Act, an article of food is misbranded if it is not labeled in accordance with the requirements of the PFA Act or PFA Rules made thereunder. Section 7 (ii) of the PFA Act, prohibits a person by himself or by any person on his behalf manufacture for sale, or store, sell or distribute any misbranded food. Rule 32 of the PFA Rules provides that every package of food shall carry a label and unless otherwise provided, in the Rules, there shall be specified on every label the information as enumerated in (a) and (b). 9. The Supreme Court in the case of Municipal Corporation of Delhi vs. Laxmi Narain Tandon and others (supra), has held that the expression “store” in Sec.7 means “storing for sale” and consequently held that storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16 (1) (a) of the PFA Act. In the case of Tilak Raj (supra), the Food Inspector intercepted the accused who was not a milk seller but was carrying milk for his father who was a licensed milk seller, and took samples CRREV No.179 of 2001 Page 8 of 11 //9// of milk from him which was found to be adulterated. His acquittal was confirmed as it was found that he was not selling milk to anybody. 10. In the present case, the evidence of P.Ws.1 and 2 has to be scanned carefully in order to find out if the prosecution has been able to prove that the mixture packets in question were kept for sale and the packets did not have any label on them will not be necessary to go into the second aspect i.e. absence of labels or the other points raised by the learned counsel for the petitioner. 11. P.W.1 is his evidence has stated that at the time of inspection of the sweet meat shop of the petitioner in the name and style of “Srikhetra Mistan Bhandar”, he suspected the kamala bhog and Mixture to be adulterated and misbranded, so he wanted to take the sample for chemical analysis. Being asked the accused told him that was preparing mixture in his shop and he did not ascertain from any other person that the accused was preparing mixture. The persons present there refused to be witnesses for which he took P.W.2, D.N. Pradhan, vaccinator as a witness. He has also stated that each packet of mixture purchased by him was containing 200gm. He has not stated anywhere that the mixture packets did not CRREV No.179 of 2001 Page 9 of 11 //10// have any label, when they were exposed for sale or when he bought them at the time of purchase or seizure. P.W.2 has stated that suspecting the mixture and Kamala bhog to be adulterated, P.W.1 purchased them and took samples of the same for chemical analysis. But he has not stated anywhere that the mixture samples did not have any label. In fact in cross-examination he has stated that he cannot say if there was any label on the mixture packets. During his examination under Section 313 of the Cr.P.C., the petitioner has stated that he was only selling sweets and not mixture and that he had kept the mixture in his house for his own use. The petitioner who examined himself as D.W.1 has stated that he had kept the mixture on the window frame of his residential house for consumption of his children. D.W.2 Narayan Jena who has a nearby betel shop has stated that the petitioner only sells sweets in his shop and stays with his family in the same house where the shop is situated. 12. In view of the nature of the evidence referred to above, when the prosecution witnesses themselves do not speak about CRREV No.179 of 2001 Page 10 of 11 //11// absence of label on the mixture packets at the time of alleged purchase and seizure, it would be unsafe to sustain the conviction of the petitioner for the offence of misbranding. The impugned judgments are therefore liable for interference. The conviction of the petitioner for commission of the offence under Section – 16 (1) (a) (i) of the Prevention of Food Adulteration Act (in short “PFA Act”) read with Rule–7 (1) and 32 of the Prevention of Food Adulteration Rules (in short the “PFA Rules") is set aside. 13. 14. The Criminal Revision is allowed. Lower court records be sent back forthwith. . …………………. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 11th August, 2022/Sukanta CRREV No.179 of 2001 Page 11 of 11