The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 672 of 2023 (An application under Section 482 of Cr.P.C.) --------------- AFR Arjuna Charan Panda ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. K.P. Mishra, Sr. Counsel Mr. S. Rath, Advocates.
Legal Reasoning
as remarked by the Food Analyst. Thus, prima facie, it can be said that the ingredients of the offence under Sections Page 7 of 8 272/273 IPC are present. The petitioner has not explained the presence of these articles in the unit if according to him, he was engaged only in manufacture of burning ghee. In any case, it is open to him to take appropriate defence in this regard during trial but as of now, this Court does not consider it a fit case to scuttle the proceeding at the threshold. 11. This Court finds that from the materials on record a prima facie case regarding commission of alleged offences exists for which, it would not be proper to interfere with the proceeding at this stage.
Arguments
For Opp. Parties : Mr. S.K. Mishra, Additional Standing Counsel for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16th May, 2023 SASHIKANTA MISHRA, J. The petitioner is an accused in G. R. Case No. 2710 of 2020 of the court of learned J.M.F.C.(R),Cuttack instituted for commission of the offences under Sections 272/273/420/34 IPC, Sections 51/52/59/63 of the Food Safety and Standards Act, 2006 Sections 104 and 107 of Trade Marks Act,1999 and Rules 33, 36 of Legal Metrology Page 1 of 8 (Packaged of Commodities) Rules, 2011. In the present application filed under Section 482 of Cr.P.C. he seeks to challenge the order dated 07. 07.2022 passed in the above case whereby cognizance of the aforementioned offences was taken. He also seeks quashment of the criminal proceedings. 2. The facts of the case, briefly stated, are that upon receiving reliable information regarding functioning of an illegal and adulterated Ghee Manufacturing Unit by the present petitioner and his nephew, Soumya Ranjan Panda, the IIC of Sadar Police Station, Cuttack being accompanied by other officials and witnesses conducted raid on the said manufacturing unit on 29.11.2020 at 12.30 P.M. In course of raid, burning ghee, castrol oil, til oil, Banaspati fat oil, palm oil and some red colour seed like chemicals were found to be stored in the unit. Further, packaged ghee with the brand name Balaji Durga Ghee and Bhimeswar Banaspati Ghee, empty jars with logo of Balaji Durga Ghee along with some unpacked Ghee kept in jars were also found to be stored. The nephew of the petitioner, Soumya Ranjan Panda confessed that they were purchasing banaspati, castrol oil, til oil, from Mumbai and burning palm oil with banaspati and preparing Page 2 of 8 ghee and selling the same in the market. The Health Officer, who was a member of the raiding party, verified the products and suspected the same to be noxious and injurious for human consumption. It was further found that the unit was functioning without valid license. The articles and other documents were seized at the spot. As such, plain paper FIR was drawn up and Sadar Police Station Case No. 624 of 2020 was registered. In course of investigation, the samples were sent to the forensic laboratory for chemical analysis and it was found that the same were unsafe for human consumption. As such, charge-sheet was submitted under the aforementioned offences. Learned J.M.F.C. after perusing materials on record, held that there is ample prima facie material to proceed against the accused person and as such, took cognizance of the aforementioned offences by the impugned order. 3. Heard Mr. K.P. Misha, learned Senior counsel with Mr. S. Rath, learned counsel for the petitioner and Mr. S.K. Mishra, learned Additional Standing Counsel for the State. Page 3 of 8 4. Mr. Mishra, has forcefully argued that the petitioner has established the unit for manufacturing burning ghee, which is made for puja purpose and for which he has all the necessary permission, license and certificates from the concerned authorities. Referring to a sample label of Balaji brand burning ghee, enclosed as Annexure-3 to the CRLMC petition, Mr. Mishra, argues that it is clearly mentioned therein that it is not for human consumption. As such, the offence under Sections 272/273 is not attracted because the product does not come within the definition of ‘Food’ within meaning of Section 3 (j) of the Food Safety and Standards Act. Mr. Mishra further argues that the petitioner has establishment and manufacturing certificate and production certificate from the District Industries Centre, Cuttack, license from the Directorate of Factories and certificate from the State Pollution Control Board for running the unit for production of burning Ghee. The relevant documents were also seized by the police. According to Mr. Mishra, therefore, no case is made out against the petitioner as alleged and therefore the order taking cognizane is bad in Page 4 of 8 law and continuance of the proceedings would amount to abuse of the process of the Court. 5. Per contra, Mr. S.K. Mishra, learned State Counsel submits that even though the petitioner may have had the permission to manufacture burning ghee but it was found in course of raid that he was also manufacturing banaspati ghee, which is meant for human consumption. Such ghee was found to be adulterated as per the chemical analysis report. Therefore, the offence under Sections 272 and 273 of IPC is clearly made out. Mr. Mishra, further submits that the offences under the FSS Act, Trade Marks Act and Legal Metrology of Commodities Rules are also made out since the petitioner was found to be manufacturing products other than those for which permission had been granted to him. 6. This Court finds that the seizure list prepared by police at the spot reveals that the following items were seized. Articles Seized: 200 nos of Bhimeswar balaji Ghee Jars ( each jar “I. contains 50ml). II. 70 carton of BhimeswarCastrol Oil.( each carton contains 12 pieces of jar, each jar contains 1 ltr). 20 carton of Bhimeswar balaji Banaspati Ghee III. Jar ( each carton contain 12 pieces of jar, each bottle contains 500mg). IV. contain 12 pieces of jar, each jar contains 1 ltr) 20 cartons of Bhimeswar Til jar ( each carton Page 5 of 8 70 cartons of Balaji Puja Ghee jar ( each carton 2000 carton of Jubilee Master chef raw V. contain 100 pieces of jar, each coantains 100mg) VI. 100 carton of Balaji Burning Ghee Jar ( each carton contain 12 pieces of jar, each jar contains 500mg) ( each carton contain 12 pieces of jar, each jar contains 500mg) VII. 350 carton of B Balaji Puja Ghee jar ( each carton contain 12 pieces of jar, each bottle contains 1 ltr) VIII. 50 carton of Bhimeswar Banaspati Ghee jar ( each carton contain 12 pieces of jar, each bottle contains 1 ltr) X. 15 carton of Bhimeswar Castrol oil jar ( each carton contain 24 pieces of jar, each jar contains 500mg) XI. Banaspati ( each carton contain 15 kg of Banaspati) XII. 60 nos of Sealed Tin container of Til oil ( each carton contain 15 ltr of Til oil) XIII. One plastic container, prepared Ghee for packing (100 ltr) XIV. 10 trays of Bhimeswar deep Jyoti Castrol oil jar( each tray contain 15 pieces of jar, each jar contains 1ltrs) XV. 10 trays of Bhimeswar deep jyoti Castrol oil jar( each tray contain 15 pieces of jar, each jar contains 500mgs) XVI. 100 nos of Balaji Puja til Oil jars( each jar contain 200mg) XVII. 250 nos of Balaji Puja til Oil jars (each jar contain 50 mg) XVIII. 400 nos of polithin packet Balaji Durga Ghee ( each packet contain 100mg) XIX. Some red colour seeds which is used for colour and flavour of adulteration of ghee XX. 02 nos of SUN BIM machine for oil packing and labelling XXI. 02 nos of ACEPAC Machine for labelling of container XXII. 05 nos of SUN BIM set for Ghee packing XXIII. 04 nos of Packing machine XXIV. One digital weighing scale machine” 7. The samples of the ghee were sent for chemical analysis to the State Food Testing Laboratory. In so far as Bhimeswar Page 6 of 8 Banaspati Ghee is concerned the remark of the Food Analysist is as follows. “The sample of Ghee falling under Regulation No. 2.1.10:2 of Food Safety and Standards (FP and FA) Regulations, 2011 is unsafe under Section 3:1 (ZZ) of FSS Act 2006 due to presence of foreign fat, vide result no.1. The sample is also restricted for sale under FSS (Prohibition and Restrictions on sales) Regulation, 2011 due to less Reichert Value, vide result no.2.” 8. In so far as Balaji Veg Fat and Balaji Durga Ghee are concerned. The remark of the food analyst is as follows: “The label declares, the sample as “burning fat and not for human consumption”, which can’t be used for edible purpose.” 9. The label declares, the sample as “fresh burning ghee and not for human consumption”, which can’t be used for edible purpose. 10. It is therefore clear that the items which have been treated as burning fat and not for human consumption have been segregated from the articles that are meant for human consumption. Those articles which are meant for human consumption as such Bhimeswar Banaspati Ghee and Bhimeswar Premium Banaspati Ghee are found to be unsafe under Section 3.1 (zz) of FSS Act and also restricted for sale
Decision
12. For the foregoing reasons therefore, this Court finds no illegality or infirmity in the impugned order so as to interfere therewith. Resultantly, the CRLMC being devoid of merit is therefore, dismissed. ……..………………….. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 26-May-2023 13:32:01 Orissa High Court, Cuttack, The 16th May , 2023/ Deepak Page 8 of 8