Criminal Appeal No. 204 of 2002 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 843 of 2006 An application under Sections 401 of the Code of Criminal Procedure challenging the judgment and order dated 30.09.2002 of learned Civil Judge (Senior Division)-cum-Judicial Magistrate First Class, Gunupur in 2(c) C.C. Case No. 04 of 1996/T.R. Case No. 50 of 2002 and the judgment and order dated 21.08.2006 of learned Adhoc Additional Sessions Judge(F.T.C.), Gunupur in Criminal Appeal No. 204 of 2002. -------------- Padmini Sahu ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. G. N. Sahu, Adv. on behalf of Mr. A. K. Nanda, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. S.S. Mohapatra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 30.05.2025 Savitri Ratho, J This application under Section 401 of the Cr.P.C. has been filed challenging the judgment dated 21.08.2006 passed in Criminal Appeal No. 204 of 2002 by the learned Adhoc Additional Sessions Judge(F.T.C.), Gunupur confirming the conviction of the petitioner under Section 16(1)(a)(i) of the Prevention of Food CRLREV No. 843 of 2006 Page 1 of 17 Adulteration Act, 1954 ( hereinafter referred to as “the Act”) and sentence to undergo R.I. for one year and to pay a fine of Rs.1,000/-(Rupees one thousand) in default of payment to undergo rigorous imprisonment for a further period of two months by the judgment dated 30.09.2002 passed by the learned Civil Judge (Senior Division)-cum-Judicial Magistrate First Class, Gunupur in 2(C) C.C. Case No. 04 of 1996/T.R. Case No. 50 of 2002. PROSECUTION CASE 2. The prosecution case in brief is that on 19.11.1995 at about 10.30 AM, Subash Chandra Sahoo, the Food Inspector, Rayagada District accompanied by Hare Krushna Prusty, peon in the office of the CDMO, Rayagada visited the grocery shop of accused Padmini Sahu situated at village Padmapur in the District of Rayagada and found that he was in-charge of the business exposing the food articles, such as edible oil, Besan, Atta, Sugar, tea dust, for sale for human consumption. Some customers were also purchasing the food articles on payment for consumption. Suspecting that Besan and Atta kept in open gunny bags and mustard oil kept in open tine to be adulterated, the Food Inspector disclosed his identity and served notice in form No.VI on the petitioner, expressing his CRLREV No. 843 of 2006 Page 2 of 17 intention to take samples of the aforesaid food items for analysis by Public Analyst, Orissa, Bhubaneswar and he purchased 750 gms of Besan for Rs.7.15 paisa and 600 gms of Atta for Rs.4.50paise and
Legal Reasoning
himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of subsection (2) of Section 13 and the report must be served on the accused.” CRLREV No. 843 of 2006 Page 13 of 17 In the case of Bhabasagar Panigrahi (supra),this court has held as follows:- “5………….. On perusal of the impugned Judgments, I find that this aspect of the case I has not been dealt with by both the Courts - below. It is no more res Integra that Section 13(2) of the Act is mandatory in nature and non- compliance of the same takes away a valuable right of the accused. Though this is a revision under Section 401, Cr.P.C. in exercise of the revisional jurisdiction, not only correctness, legality and propriety of the proceeding can be examined, but in appropriate case the Court can consider the correctness of the conclusion arrived at by the Courts-below and if It finds that the same is not based on evidence available on record or is based on erroneous inferences, the revisional Court can annul the same. It is true that the revisional Court cannot go into the question of sufficiency or insufficiency of evidence Justifying the conclusion, but it can examine whether the evidence on which the conclusion of the Courts-below are based is admissible in law or not. 6. On the above analysis, I find that the prosecution has failed to conclusively prove that the report of the Public Analyst was sent to the petitioner and the courts- below have committed illegality in relying on Ext. 17 to come to the finding that there was due compliance of the provisions of Section 13(2) of the Act. The petitioner is, CRLREV No. 843 of 2006 Page 14 of 17 therefore, entitled to be acquitted from the charges under
Arguments
375 gms. of mustard oil for Rs.15/- and tendered the price to the accused and the accused on receipt of the price granted a cash memo to that effect. Then the Food Inspector divided the sample of Besan into three equal parts and put them into three empty, clean and dry polythene bags and sealed and labelled and affixed paper slips bearing the code number and signature of the local health authority and tied and sealed them in presence of the accused and the witness. He also adopted the same procedure with respect to the sample of atta. The Food Inspector also divided the sample of mustard oil into three equal parts and put them into three empty, clean and dry bottles, corked, wrapped, labelled and affixed the paper slips bearing the code number and signature of the local health authority and tied and sealed them in presence of the accused and the witness. On 20.11.1995, the Food Inspector sent one part of each of the sealed sample packets along with the memorandum and specimen impression of the seal used for sampling the parts to the Public Analyst, Orissa, Bhubaneswar, by CRLREV No. 843 of 2006 Page 3 of 17 registered parcel and he also sent separately a copy of the memorandum for each of the sample along with the specimen impression of the seal used for sampling the parts to the Public Analyst, Orissa, Bhubaneswar, on the same day by registered post with A.D. and deposited the rest parts of the samples along with two copies of memorandums for each sample before the CDMO, Rayagada (local health authority). After microscopic examination the Public Analyst submitted his report to the effect that the sample of Atta and mustard oil confirmed to the prescribed standard, but the sample of Besan is adulterated as it contains Kesari powder. On receipt of the said report of the Public Analyst, the Food Inspector obtained a written consent from the sanctioning authority, i.e. the CDMO, Rayagada and launched prosecution against the accused for the aforesaid offence. It is further stated that the copy of the report of the Public Analyst was sent by registered post with A.D. to the accused and the accused had right to get the sample of Besan examined by the Central Food Laboratory under Section 13(2) of the Act which he did not avail. CHARGES CRLREV No. 843 of 2006 Page 4 of 17 3. The petitioner was charged under Section 16(1)(a)(i), read with Section 7(i)(iv)(v) of the Prevention of Food Adulteration Act,1954. DEFENCE PLEA 4. The plea of the accused was one of a complete denial. The specific stand in his statement recorded under section 313 of the Cr.P.C. was that he has no grocery shop as alleged. WITNESSES AND EXHIBITS 5. Two witnesses have been examined by the prosecution. P.W.1 is the Food inspector Subash Chandra Sahoo, P.W.2 Hare Krushna Prusty is the peon of the office of the CDMO, Rayagada Defence had examined one Udaya Sahoo as D.W.1, He stated that the accused has a vegetable shop and not a grocery shop in the village. P.W.1 is the Food inspector had stated that on 19.11.1995 at about 10.30 he had visited the business premises of accused Padmini Sahu situated at village Padmapur being accompanied by his office peon Hare Krushna Prusty and had found the accused CRLREV No. 843 of 2006 Page 5 of 17 dealing his grocery business at his business premises, i.e. his grocery shop by exposing some food articles like edible oil, Besan, Atta, Suji, Maida for sale for human consumption and customers were also purchasing food articles from the accused with payment. He further stated that he had disclosed his identity to the accused and had inspected the food articles inside his shop and suspected the Besan, Atta and mustard oil kept in the grocery shop for human consumption to be adulterated and then he served the notice under form No.VI to the accused expressing his intention that the said food articles would be analysed by the Public Analyst, Orissa, Bhubaneswar and the accused received the said notice at the spot and also put his signature with endorsement acknowledging the receipt of the notice and then he purchased 750 gms of Besan, 600 gms of Atta and 375 gms of mustard oil, then he divided the purchased sample of besan into three equal parts and put them in three empty, clean and dry polythene packets and send the samples to the Public Analyst, Orissa, Bhubaneswar. He denied the suggestion that he had bought the Besan from the house of the accused which had been kept for cattle feed. CRLREV No. 843 of 2006 Page 6 of 17 P.W.2, Hare Krushna Prusty, the peon in the office of CDMO, Rayagada has stated in his evidence that on 19.11.1995 he had accompanied the Food inspector to village Padmapur where they went to the grocery shop of the accused and the Food Inspector disclosed his identity and wanted to purchase some food articles like mustard oil, Atta and Besan from the shop of the accused. At that time Food Inspector issued the notice on the accused at the spot in his presence and he had also put his signature in the said notice. He further stated that the Food Inspector divided each food item in three equal parts and separately paper sealed the same by using wax. D.W.1-Udaya Sahu has stated that the petitioner has a vegetable shop in the village and does not have any grocery shop. Ten documents were exhibited by the prosecution. Ext.1 is the notice on the accused in Form VI. Ext.2 is the cash bill issued by the accused. Ext.3 is the office copy of the memorandum. Ext.4 is the specimen impression of the seal. Ext.5 and 6 are postal receipts of samples sent to the public analyst. Ext.7 is the report of the Public Analyst. Ext.8 is the sanction order of the CDMO rayagada. Ext.9 is the copy of the forwarding letter sent to the CRLREV No. 843 of 2006 Page 7 of 17 petitioner. Ext.10 is the postal receipt of the letter sent to the petitioner and Ext.10/1 is the postal AD. No document was exhibited by the defence. TRIAL COURT JUDGMENT 6. The learned Trial Court held that Besan is a primary food. As the public analyst’s report under Ext.7 disclosed that the food article is adulterated as it contains Khesari powder and the food article in question is adulterated due to human agency , found the accused guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and convicted him thereunder.Considering that the accused was a young man aged about 30 years and a rustic villager of a tribal area, sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-(Rupees one thousand) in default to undergo R.I. for two months. APPELLATE COURT JUDGMENT 7. Learned Appellate Court after considering the evidence adduced by the prosecution found that there was no violation of Rule 17 and 18 of F.A. R. As P.W1 had stated that no outsiders agreed to be witnesses, it held that non examination of independent witnesses is not fatal to the prosecution case. It also found that CRLREV No. 843 of 2006 Page 8 of 17 since P.W 1 had stated that he had placed all relevant papers before the CDMO and there was no cross examination on this aspect, there was no irregularity in the findings of the learned trial court. It dismissed the Appeal as being devoid of merit. SUBMISSION 8. Mr. G. N. Sahu, learned Counsel for the petitioner submits that the conviction of the petitioner is liable to set aside as:- (i) There has been non-compliance of Section 13(2) of the PFA Act as the Public Analyst report was not sent to the petitioner with the forwarding letter intimating him of his right to get the sample tasted by the Central Laboratory. (ii) As per mandatory provision of Rule 18, there were three items so the samples should have been sent by the food inspector separately by three nos. of registered posts but in the instant case three nos. of item were sent by the food inspector in one registered parcel and admittedly there are only two register receipts in place of six for which the the impugned judgment being contrary to Rule 18 was liable to be set aside. (iii) Neither the CDMO nor anybody from his office has been examined to prove that the public analyst report and the forwarding CRLREV No. 843 of 2006 Page 9 of 17 letter of the CDMO had been sent to the petitioner intimating about her right to get the sample of Besan examined by the central Laboratory. This report supersedes the report of the public analyst and therefore the impugned Judgments are Liable to be set aside. (iv) It should not have been believed that the sample of food articles reached the office of the CDMO at 6.30 P.M. which is beyond office hour. (v) Prosecution has not been able to prove that the petitioner was the owner of the shop. (vi) Sanction has not been granted in accordance with Section 20 of the PFA Act. (vii) Besan was kept for cattle feed and human consumption, and the Government Notification prohibits human consumption of Keshari dal and besan. (viii) Ownership of the shop has not been proved. (ix) Sale of the besan was not for human consumption. 9. Mr. S.S. Mohapatra, learned Additional Standing Counsel submitted that the evidence of the witnesses reveals that the besan was being sold by the petitioner for human consumption and the CRLREV No. 843 of 2006 Page 10 of 17 public analysis report indicated it to contain Keshari dal which is not meant for human consumption. There is no material on record that the besan was seized from the home of the petitioner. The sanction order reveals that after due application of mind, sanction has been accorded. He relied on the decision in the case of Bhabasagar Panigrahi vs. State of Orissa : (2004)2 OLR 549: (2005) CRLJ 778. STATUTORY PROVISION 10. Section 13(2) of the PFA Act is extracted below: “On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” CRLREV No. 843 of 2006 Page 11 of 17 Section 20 of the PFA Act is extracted below; “20. Cognizance and trial of offences.(1) No prosecution for an offence under this Act not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government: Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in section 12, if he or it produces in court a copy of the report of the public analyst along with the complaint. (2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under sub-section (IAA) of section 16 shall be cognizable and non-bailable).” JUDICIAL PRONOUNCEMENT 11. In the case of Narayana Prasad Sahu vs The State of Madhya Pradesh: (2022) 1 SCC 87, the Supreme Court has held as follows:- CRLREV No. 843 of 2006 Page 12 of 17 “Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section 5 (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused, his right under sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend
Decision
Sections 16(1)(a)(i) of the Act. In view of the above, I do not feel any necessity to enter into the question as to whether the provisions of Rule 18 of the Rules framed under the Act have been complied with or not.” ANALYSIS AND CONCLUSION 12. I have carefully gone through the impugned judgments and the evidence of the prosecution witnesses and the decision referred to above. 13. The defence plea has been that the petitioner does not have any grocery shop. One defence witness D.W.1 has been examined, who has stated that the petitioner does not have a grocery shop but has a vegetable shop in the village. The prosecution has not been able to elicit anything material during cross examination of D.W.1, for which his evidence should have been given importance by both the Courts, but it has been brushed aside. 14. P.W.1 has stated that after obtaining sanction from the CDMO Rayagada, prosecution was launched against the accused and copy of the report of the Public Analyst was sent by the CDMO along with a forwarding letter by registered post with AD to the accused but he did not avail of his right under Section 13 (2) CRLREV No. 843 of 2006 Page 15 of 17 of the Act to get the sample tested in the Central laboratory. The copy of the postal receipt and the AD have been marked as Ext 10 and Ext 10 /1. But as P.W 1 has not sent the report and forwarding letter to the petitioner himself and has stated that it was sent by the CDMO who has not been examined as witness and the petitioner has denied receipt of the report and the forwarding letter, the evidence of P.W. 1, is not sufficient to prove the contents of the envelope which was sent to the petitioner and was received by him. 15. It is the settled position of law that the provisions of Section 13 (2) of the Act are mandatory and its violation will vitiate the prosecution case. I am satisfied that there has been non-compliance of the mandatory provision of Section – 13 (2) of the Act as there is lack of proof of service of the report of the Public Analyst and forwarding letter on the petitioner, hence I do not consider it necessary to discuss the other contentions urged by the learned counsel for the petitioner. 16. The conviction of the petitioner under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, by the learned Civil Judge (Senior Division)-cum-Judicial Magistrate First Class, Gunupur in in 2(c) C.C. Case No. 04 of 1996/T.R. Case No. 50 of CRLREV No. 843 of 2006 Page 16 of 17 2002, confirmed by the learned Adhoc Additional Sessions Judge(F.T.C.), Gunupur in Criminal Appeal No. 204 of 2002 are set aside. 17. The Criminal Revision is accordingly allowed. 18. As the petitioner is stated to be on bail, his bail bonds are discharged. 19. The trial Court records be returned forthwith to the learned trial court with a copy of this judgment. ……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 30th May, 2025. Subhalaxmi, Junior Stenographer. Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jun-2025 20:51:01 CRLREV No. 843 of 2006 Page 17 of 17