✦ High Court of India

Criminal Appeal No. 31 of 2001 · The High Court

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 246 of 2006 An application under Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 08.05.2001 of learned Judicial Magistrate First Class, Kasipur in 2(c) CC No.1 of 1996 (T.R. No. 75 of 1996) and the judgment and order dated 24.03.2006 of learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.31 of 2001. -------------- J. Dwarika Prusty ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. Arun Ku. Acharya, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 30.05.2025 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 24.03.2006 passed in Criminal Appeal No.31 of 2001

Legal Reasoning

by the learned Addl. Sessions Judge, Rayagada, confirming the conviction of the petitioner under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954, and sentence to undergo R.I. for six months and to pay a fine of Rs.1000/-, in default to undergo a CRLREV No. 246 of 2006 Page 1 of 11 further period of R.I. of one month by judgment dated 08.05.2001 passed by the learned J.M.F.C., Kasipur in 2(c) C.C. No.1 of 1996 (T.R. No. 75 of 1996). PROSECUTION CASE 2. The prosecution allegation in brief is that the petitioner is the proprietor of his grocery shop in the name of M/s. Dwarika Kirana Bhandar, i.e. the co-accused and he was dealing with grocery articles such rice, dal, oil soaps etc. The Inspector of Rayagada District (P.W.1) had inspected his shop on 25.01.1995 at about 11.30 a.m. along with his peon (P.W.2). During investigation he suspected food articles such as mustard oild, coconut oil, turmeric powder and masur dal to be adulterated. He purchased 375 grams of mustard oil for Rs.16.50 paisa, 375 grams of coconut oil for Rs.30/-, 750 grams of masoor dal for Rs.12.75/- paisa and 600 grams of Turmeric powder for Rs.16/- from the accused and paid the price, who granted a cash memo to the Food Inspector. During investigation P.W.1 called some outsiders to remain present, but they denied to become witnesses and left the place. On 26.01.1995, P.W.1 sent one part of each of the sealed samples of Mustard oil and coconut oil, masur dal and turmeric powder to the Public Analyst, Orissa, Bhubaneswar, by registered post and CRLREV No. 246 of 2006 Page 2 of 11 deposited other sample bottles with the C.D.M.O, Rayagda, who is the local Health Authority. He received the Public Analyst reports which reveal that the sample of Masur Dal is adulterated as it contained Khesari Dal and the turmeric powder is adulterated as it contained foreign starches of rice, and they do not confirm to the prescribed standard. However, the Public Analyst Report reveals that samples of Mustard oil and coconut oil sent for analysis confirmed to the prescribed standard. The Food Inspector has produced all the materials and documents before the local Health Authority to accord necessary sanction and obtained sanction from the C.D.M.O, Rayagada to launch prosecution against the petitioner and co-accused and filed P.R. against them. He sent notice under Section 13(2) of the P.F.A. Act to the petitioner by registered post with A.D. The petitioner has received the notice and but did not take steps to send parts of samples of alleged food articles for analysis by the Control Food Laboratory. Thereafter, charge was framed against the petitioner and co-accused and the trial was commenced. WITNESSES AND EXHIBITS 3. During course of trial, in order to prove its case, the prosecution examined two witnesses. CRLREV No. 246 of 2006 Page 3 of 11 P.W.1 Subash Chandra Sahu is the Food Inspector and P.W.2 Harekrushna Prusty is the peon attached to CDMO, Office, Rayagada and who accompanied P.W.1 to the place of alleged obtained of the sample. 4. The prosecution exhibited fourteen documents. Ext.1 is the notice in Form No.II, Ext.2 is the cash memo, Ext.3 is the memorandum, Ext.4 is the specimen impression of seal, Ext.5 is the memorandum, Exts.6 and 7 are the postal receipts, Ext.8 is the report of public analyst, Ext.9 is the forwarding letter, Ext.10 is the public analyst report, Ext.11 is the forwarding report of public analyst to CDMO, Rayagada for turmeric powder, Ext.12 is the sanction order of CDMO, Rayagada, Ext.13 is the copy of letter to accused and Ext.14 is the postal receipt. The prosecution proved two material objects. M.O.I is the sample of Masurdal (one part) and M.O.II is the sample Turmeric powder (one part). DEFENCE PLEA 5. The defence plea was complete one of denial and false implication. CRLREV No. 246 of 2006 Page 4 of 11 TRIAL COURT JUDGMENT 6. The learned trial Court on analysis of materials and evidence on record came to a conclusion, prosecution has successfully proved the charges against the petitioner accordingly convict him under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 and sentence to undergo R.I. for six months and to pay a fine of Rs.1000/-, in default to undergo a further period of R.I. of one month. APPELLATE COURT JUDGMENT 7. The learned Appellate Court rejected the contention of the petitioner that his prosecution was barred by limitation, holding that it was within the limitation period as per the provisions of Section 468 of Cr.P.C. It also held that inspite of receiving notice alongwith the reports of the Public Analyst, the petitioner had not availed the remedy of Section 13(2) though they received notices along with reports of the Public Analyst. It confirmed the conviction of the petitioner and also refused to interfere with the sentence as minimum sentence had been imposed and dismissed Criminal Appeal No. 31 of 2001. SUBMISSION 8.

Legal Reasoning

Mr. Arun Kumar Acharya, learned counsel for the CRLREV No. 246 of 2006 Page 5 of 11 petitioner submits that the impugned judgments are liable for interference as:- (i) There are major contradictions in the evidence of P.W.1 and P.W.2 with regard to collection of samples and neither the trial Court nor the Appellate Court have addressed this properly. The learned Appellate Court has observed that the contradiction is a slip of tongue of the witnesses. (ii) No document has been proved by the prosecution that P.W.1 was the Food Inspector appointed in terms of Rule-8 of the Prevention of Food Adulteration Rules on the relevant date and the prosecution instead of standing on its own legs could not have taken advantage of the document filed by the defence as Ext.A which is the transfer order of P.W.1 issued five years before the occurrence. (iii) The CDMO, Rayagada has not been examined, but the report Ext.1 has been exhibited by P.W.1, P.W.1 has stated that he got the sanction order from the statutory authority. Conviction of the petitioner is vitiated on account of non-examination of the CDMO as well as public analyst as the petitioner was deprived of a chance of cross-examine them. CRLREV No. 246 of 2006 Page 6 of 11 (iv) The sanction order Ext.12 does not reveal that all the relevant materials had been placed before the CDMO and he had applied his mind to the facts of the case while according sanction. (v). He finally submits that the petitioner being a first offender, a lenient view may be taken and the custodial sentence be converted to fine as more than twenty four years have elapsed since the date of alleged occurrence and the petitioner is aged about sixty years now. Mr. Acharya, learned counsel for the petitioner relied on the decision of the Supreme Court in the case of A.K. Sarkar & Co. And Another vs. State of West Bengal & Others reported in 2024 SCC Online SC 248, in support of such submission. 9. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State submits that there is no illegality or perversity in the two judgments of the learned Court below for which they are not liable for interference. He further submits that it was not necessary for production of any document to show that P.W.1 was working as Food Inspector on the relevant day especially when the accused himself vide Ext.A has filed the order showing that P.W.1 has been transferred from Keonjhar to Rayagada before the date of occurrence. He further submits that the evidence of P.Ws. 1 and 2 are clear that the samples have been drawn from the shop of the CRLREV No. 246 of 2006 Page 7 of 11 petitioner and on analysis it was found that the Turmeric powder did not confirm to prescribe standards and the report of the Public Analyst show that the same was adulterated and that the sample of masoor dal was found to contain Kesari Dal which is a banned food article. He finally submits that in view of Section 20-AA of the Act, the petitioner has rightly not been extended the benefit of the Probation of Offender Act. JUDICIAL PRONOUNCEMENT 10. In the case of A.K. Sarkar & Co. (supra), the Supreme Court while refusing to interfere with the conviction of the appellant under the Prevention of food Adulteration Act , observed that the Prevention of Food Adulteration Act has been repealed by the introduction of the Food Safety and Standards Act, 2006 where Section 52 provides a maximum penalty of Rs.3,00,000/- for misbranded food. There is no provision for imprisonment. It modified the custodial sentence of the appellant No.2 from three months simple imprisonment and fine of Rs 1,000/- to fine of Rs 50,000/- and directed for deposit of the amount within three weeks. ANALYSIS AND CONCLUSION 11. I have carefully gone through the judgments of both the learned Courts below. CRLREV No. 246 of 2006 Page 8 of 11 12. Both the Courts have vividly discussed the evidence of the witnesses and found the prosecution has been able to prove its case against the petitioner. 13. While the learned trial Court has relied on the report of the Public Analyst which indicated that the masoor dal sample contained Kesari dal which is a banned food article and the sample of turmeric powder did not conform to the prescribed standards and hence was adulterated, the learned Appellate Court after discussing the evidence of P.Ws.1 and 2 and the reports rightly did not find any reason to interfere with the conviction of the petitioner. 14. On a perusal of the evidence of the witnesses, I find that from the evidence of P.W.1 and P.W.2, it is clear that masoor dal and turmeric powder have been bought from the petitioner on payment of money and he has furnished a cash memo vide Ext.2, which contains the signature of the petitioner Ext.2/1. The prosecution has thus been able to prove that the two food articles were being sold to the public by the petitioner. 15. On a perusal of Exts.6 and 7, the postal receipts, it is apparent that the samples of masoor dal and turmeric powder have been sent separately by registered post to the Public Analyst. CRLREV No. 246 of 2006 Page 9 of 11 16. Perusal of Ext.8 and Ext.10, the reports of the public analyst reveal that the sample of masoor dal and turmeric powder were found to be adulterated. 17. Perusal of Ext.13 (letter) and Ext.14 (postal receipt) reveal that the reports of the public analyst have been sent to the petitioner alongwith a forwarding letter informing him of his right to get the samples tested. 18. On perusal of Ext.12, the sanction order, I find no reason to disagree with the concurrent findings of the two courts that the sanction order is vitiated for non-examination of the CDMO. 19. Samples of the masoor dal and turmeric powder have been produced before the trial Court and marked as M.O.I and M.O.II respectively. 20. Therefore on a conspectus of the evidence of P.Ws., I find no reason to interfere in the two concurring judgments convicting the petitioner for commission of offence under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. 21. In view of the nature of the offence and Section – 20 AA of the Act, I am not inclined to extend the benefit of Probation of Offenders Act to the petitioner. CRLREV No. 246 of 2006 Page 10 of 11 22. But I find sufficient force in the submission of the learned counsel for the petitioner that in view of the fact that the incident took place about thirty years back when the petitioner was aged about 30 years and the decision of the Supreme Court in the case of A.K. Sarkar (supra), he should not be sent to custody. 23. While confirming the conviction of the petitioner, I modify the sentence to payment of fine of Rs 4,000/- in default to undergo S.I. for a period of three months. The fine amount should be paid within a period of two months hence, failing which the petitioner will be taken into custody to serve out the default sentence. 24. The Criminal Revision is dismissed with the above modification in sentence. (Savitri Ratho) ……………………… Judge Orissa High Court, Cuttack. The 30th May, 2025. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jun-2025 21:14:27 CRLREV No. 246 of 2006 Page 11 of 11

This is the original judgment text as indexed from the source corpus. Always verify against the official court record before relying on it in a filing — you can do so on eCourts or the Supreme Court of India website. ← Search more judgments