B. Bhimraju Patro vs State of Orissa

J.K. Mohanty, J.—The Petitioner was convicted u/s 16(l)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called the ''Act'') and sentenced to undergo R. I. for six months and to pay a fine of Rs. 800/-. in default to undergo R. I. for one month more by the Sub-divisional Judicial Magistrate, Berhampur. In appeal, the order of conviction and sentence has been confirmed by the Additional Sessions Judge, Ganjam-Boudh, Berhampur. Against the aforesaid order of conviction and sentence, the present revision has been preferred.

The prosecution case is that the accused-Petitioner was found selling Mendapata ghee in his shop on 29-12-1971. The Food Inspector-cum-Health Inspector of Berhampur Municipality (P.W. 3) visited his shop suspecting that the Mendapata ghee, exposed for sale to be adulterated he expressed his intention to is take sample of ghee for analysis and purchased 0.450 grams of the said ghee by paying the price thereof. He divided the sample of ghee so purchased into three equal parts and kept the same in clean and dry bottles and sealed the same. P.W. 3 gave one sealed bottle to the accused-Petitioner and retained one sealed bottle with him and sent one to the Public Analyst for analysis. On analysis, the Public Analyst found that the ghee was adulterated as the free fatty acid content is higher than that prescribed for ghee under the Prevention of Food Adulteration Rules (hereinafter called the ''Rules''). After obtaining sanction from the competent authority, the prosecution report was submitted against the accused before the Court on 28-2-1972.

The plea of the accused-Petitioner is one of denial. He has further taken the plea that he has no shop and his signatures were obtained in some documents by the Food Inspector on the representation that those were required for the purpose of becoming a witness in a case.

The prosecution examined 3 witnesses. P.W. 1 is Sanitary Inspector who accompanied the Health Inspector-cum-Food Inspector (P.W. 3). P.W. 2 is a witness to the seizure in whose presence the sample ''ghee was taken, P.W. 3 is the Food Inspector. In the case, P.W. 2 has been declared hostile by the prosecution since be did not support the prosecution case. Prosecution has also relied on Ext. 1, the notice u/s 11 (1-A) of the. Act for the purpose of taking sample for analysis, Ext. 2. the receipt signed by the Petitioner in token of selling 450 grams of Mendapata ghee for Rs. 5/-, Ext-31 the acknowledgment by the Petitioner in token of receipt of a bottle of a sample and Ext. 4, the receipt granted by P.W. 3 in token of taking 450 grams of Mendapata ghee and 0.600 grams of Motor basan, Ext. 5. the report of the Public Analyst Ext. 6, the order of sanction of prosecution. An the exhibits except Ext. 2 are in English. The defence has examined one witness, who proved that the accused had no shop and he is not a dealer in any articles including food stuff. The learned Magistrate after considering the entire evidence on record had convicted the Petitioner as aforesaid. In appeal, the order of .conviction and sentence has been confirmed.

Mr. Rath, the learned Counsel, appearing on behalf of the accused-Petitioner submits that the Petitioner is entitled to an acquittal in view of the following:

(l) The mandatory provision of the Rule 9(j) has been violated as the report of the Public Analyst has nor been supplied to the Petitioner at all and the accused has been seriously prejudiced;

(2) Section 10 (7) has not been complied in as much as P.W. 2 who is said to be an independent witness to the taking of sample of ghee has turned hostile and has stated that he does not know the accused of about the taking of sample and there is no other independent witness to support the prosecution case that sample was in fact taken from the shop of the Petitioner;

(3) There is no evidence that the accused-Petitioner had any shop and that he sold any ghee as alleged.

Rule 9(j) (before amendment) which, is applicable to the present case provides:

Rule 9: It shall be the duties of the Food inspector

xx xx

to send by hand or registered post, a ,copy of the report received in Form No. III from the Public Analyst to the person from whom the same was taken, in case it is found to be not confirming to the Act or rules made thereunder, as soon as the case is filed in the Court.

Rule 9(j), as it stands now (after amendment) is as follows:

Rule 9: It shall be the duty of the Food Inspector

xx xx xx

(j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case, the sample conforms to the provision of the Act or Rules made thereunder then the person may be informed of the same and report need not be sent.

Under Rule 9(j), it is incumbent on the part of the Food Inspector to send a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken, in case it is found to be not conforming to the Act or Rules made thereunder, as soon as the case is filed in, the Court. Admittedly, in this case the copy of the report received in Form No. III from the Public Analyst has not at all been supplied to the Petitioner. The legislature in its wisdom has imposed several duties of the Food Inspector so that the accused should have fair chance in meeting the case against him and to defend his case against any Improper action on the part of the prosecuting agency. Some of the duties that are obligatory on the part of the Food Inspector are enumerated below:

(1) He shall call one or more person to be present at the time of taking sample as provided u/s 10(7);

(2) He shall follow the provisions of section 11(a) rereading taking of sample of food for analysis;

(3) He shall send the copy of the report received in Form No. III from the Public Analyst by hand or registered post as soon as the case is filed in Court. (Rule 9(j).)

Now the question that arises for determination is whether the non-compliance of Rule 9 (j) will entitle the accused to an acquittal. This question came up for decision in a Bench of the Andhra Pradesh High Court in The Public prosecutor High Court of A. P. Hyderabad v. K. J. Muralidhar 1977 A.L.T. 34. In that case, the Food Inspector failed to supply a copy of the report of the Public Analyst as required under Rule 9(j) as in this case. It was held in that case:

Keeping the severity of the sentence in mind, we think, that the Legislature intended that the right of liberty of the subject should also be safeguarded. With these view in mind, the Legislature had imposed several duties on the Food Inspector so that the accused should have a fair chance in meeting the case against him, and to defend his case against any improper action on the part of the complainant.

It was further held t hat when the report of the Public Analyst was not sent to the accused even until the filing of the complaint, the accused could be acquitted without his pleading prejudice. Relying on the above decision. Hon''ble Das, J. held in Magrilal Agarwala v. State of Orissa Crl. Rev. No. 303 of 1977:

In the instant case, P.W. 1 has admitted that the report of the analyst was not sent to the Petitioner and, as such, on the aforesaid principles laid down, the accused should be deemed to have been prejudiced and, as such, he is entitled to acquittal.

In a case decided by Bombay High Court The State of Maharashtra Vs. Jesti Dosa, , where a copy of the report of the Public Analyst was not sent to the accused by registered post but was given by hand to the accused, it was held:

After the amendment he cannot wait to send the report by registered post till the filing of the case in Court as was the earlier provision. The report must be sent by registered post within 10 days of the receipt of the same. It is evident therefore that the intention of the legislature was that after the amendment of the rule which came into force on 13-2-1974 the only mode of sending the report which was recognised was by registered post and that too within the stipulated period of 10 days of the receipt of the same. That would clearly show that the rule was intended to be mandatory. Since on the admission of the Food Inspector himself he has committed a breach of the same, no exception could be taken to the order passed by the learned Magistrate.

In this case, the Magistrate had discharged the accused as the copy of the report of the Public Analyst was delivered by hand to the accused and was not sent by registered post. On appeal by the State against the order of discharge to the Bombay High Court, it was held that the order of discharge was justified due to noncompliance of the mandatory provisions of Rule 9(j).

The learned Additional Standing Counsel, appearing for the opp. party cited a decision of Martand Balvant Risaldar and Another Vs. Chhaganlal Ambalal Gandhi and Others, , and contended that the Rule 9 (j) is not mandatory but directory and non-compliance of Rule 9(j) will not entitle the accused to an acquittal. In the above case, the report of the Public Analyst was delivered by hand but was not sent by registered post as required under Rule 9(j) (as it stands now). It was contended on behalf of the accused-Petitioner that since the. Public Analyst''s report was not sent by registered post, the accused is entitled to an acquittal. It was held:

The reason for which the legislature enacted Rule 9 (j) is that the accused can get the sample given to him analysed by an analyst of his choice or he may 4. Martand Balvant Risaldar and Another Vs. Chhaganlal Ambalal Gandhi and Others, . make an application to the Court to send the sample produced in the Court analysed by the Central Food Laboratory and obtain a certificate of the Director of the Central Food Laboratory. This being the object of the rule the question as to how a copy of a report of the Public Analyst is to be supplied to the person from whom the sample was taken is definitely directory and procedural because the objection can be achieved when a copy of the report of the Public. Analyst is made available to the accused either by hand delivery or by registered post. It is, no doubt, true that Rule 9(j) of the Rules has been amended from time to time but that does not change the procedural character of that part of the rule and it still remains directory as the object in enacting the rule continues to be the same. It will not be proper to accept a proposition of law that the accused is entitled tu acquittal merely because the Food Inspector had not sent a copy of the report of the Public Analyst to him by registered post even though the same was given to the accused by hand delivery. The main object of the legislation is to put down food adulteration with a heavy hand. The object of Rule 9(j) of the Rules is to promote private interest of an individual and the person affected can always waive the same. For the reasons aforesaid the provisions or Rule 9(j) of the Rules with regard to the manner in which a copy of the report of the Public Analyst is to be sent to the person from whom the sample is taken, cannot be held to be mandatory.

It will be seen from the above what the Hon''ble Judges of the Gujarat High Court held that the provisions of Rule 9(j) of the Rules with regard to the manner in which the copy of the report of the Public Analyst is to be sent to the person from whom the sample is taken, cannot be said to be mandatory. As the accused bad received a -copy of the report in this case, it is stated that there IS substantial compliance of Rule 9(j) and this'' decision of Gujarat High Court differs from the decision of the Bombay High Court The State of Maharashtra Vs. Jesti Dosa, . The learned Standing Counsel cited another decision of our own High Court Sankarlal Bazaz v. Food Inspector and Health Officer, Cuttack 1977 C.L.R. 25, Municipality, Cuttack, where it has been held by Hon''ble B.K. Ray,

It is, no doubt, true that when an accused is deprived of the right given to him under Sub-sections (2) and P) of Section 13 of the Act he must be held to have been seriously prejudiced in his trial and the prejudice thus caused may entitle him to an order of acquittal. The contention of Mr. Patnaik to the effect that the provision in Rule 9(j) under the Act for supply of a copy of the report of the Public Analyst to the accused is intended to enable the accused to exercise his right as per the provisions of Sub-sections (2) and (3) of Section 13 of the Act. Therefore, where it is found in a trial that on account of non-supply of a copy of the re port of the public Analyst the accused has been deprived of his tight reserved to him under Sub-sections (2) and (3) of Section 13 of the Act, it may be difficult to maintain an order of conviction of the accused in the said trial. The main question, therefore, for consideration is as to whether by the non-supply of a copy of the report of the Public Analyst the accused-Petitioner has been, really prejudiced in his trial. It has already been pointed out above that along with the prosecution report on which cognizance of the offence was taken against the present Petitioner the report of the Pubic Analyst had been filed. The Petitioner in spite of the service of notice against him did not appear for which a non-bailable warrant was issued against him and it was only when such warrant was issued he entered appearance in the case. The vakalatnama executed by the Petitioner shows that long before he actually entered his appearance he had executed the same in favour of his Advocate. The Petitioner, as the records show was being represented by Counsel throughout his trial from the beginning to end. True, he made a complaint that a copy of the report of the Public Analyst was not supplied to him in the trial Court, and so, on his petition the trial Court directed the prosecution to supply a copy of the said report. Even thereafter, the order-sheet of the trial Court reveals that the Petitioner remained absent on one of the dates to which the case was adjourned, and so, once more non-bailable warrant was issued against him. After having come to know of this the Petitioner appeared in the Court before execution of the warrant. This conduct on the part of the Petitioner shows that throughout he was trying to delay the trial and therefore, it is contended on behalf of the opposite party that the petition filed by the Petitioner in the trial Court praying for a direction to the prosecution to supply him a copy of the report of the Public Analyst was merely a dilatory tactic.

Thus, it will be seen from the above that it was held in that case that the conduct of the accused was not above board and he was resorting to dilatory tactic in order to delay the proceeding, and as such, In the circumstances, judging the conduct of the accused it was held that no prejudice was caused to him.

In this case the report of the Public Analyst was obtained on 10-12-1972 and the sanction order was given on 25-3-1972. The prosecution report was sent to the Sub-divisional Judicial Magistrate, Berhampur which was received in the Court on 28-2-1972 The cognizance at the case was taken on 21-5-1972 and the accused after notice appeared on 6-9-1972. The report of the Public Analyst was not supplied to the accused-Petitioner a tall.

The Prevention of Food Adulteration Act, 1954 came into force on June 1, 1955. At that time there was no provision in the said Act or Rules framed thereunder requiring the Food Inspector or any other authority to send a copy of the report of the Public Analyst to the person from whom the sample was taken. Rule 9 was amended by notification No. GSR 1523 dated July 8, 1968 and Rule 9(j) was added. Rule 9(j) thus added provided that it was also a duty of the Food Inspector to send by hand or registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken, in case it was found to be not conforming to the Act or Rules made thereunder as soon as the case was filed in the Court. As it appears, the provisions of this rule were more often not complied with and persons prosecuted for the offences under the Act were not supplied with a copy of the Public Analyst as soon as the case was filed against them. So Rule 9(j) was amended by notification No. 1364 dated November 6, 1973 and it was provided that it shall be the duty of the Food Inspector to send by hand or registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the report from the Public Analyst. Rule 9(j) was again amended by notification No. 205 dated February 23, 1974 which came into effect from May, 23, 1974. Thus Rule 9(j), as it stands now, makes obligatory on the part of the Food Inspector to send by registered post, a copy of the report received in Form No. III of the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report.

From the above discussion, it will be seen that the Rule 9(j) has been amended from time to time and has been made more rigorous. The object of Rule 9(j), therefore, is that the accused should have a fair chance in meeting the case against him and to defend his case against any improper action on the part of the prosecuting agency and to enable him to send the sample to the Director of Central Food Laboratory for a certificate u/s 13(2) of the Act. As in the instant case, the accused-Petitioner has not supplied with a copy of the report of the Public Analyst at all, I hold that the accused shall be deemed to have been prejudiced, and as such, he is entitled to an acquittal.

It is not necessary to discuss in detail the other points raised by Mr. Rath, the learned Counsel for the accused-Petitioner in view of the above finding. About the non-compliance of Section 10(7), it is seen that in this case, in fact an independent witness P.W. 2 was called at the time when sample was taken but he has turned hostile. So it cannot be said that the provision of Section 10(7) has not been complied with. It is also the view expressed by the Hon''ble Supreme Court in a decision reported in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, . In view of the concurrent findings of the Courts below, it is difficult to held that the accused has not sold the ghee to the Food Inspector and that the accused has no shop.

In the result, the conviction and sentence passed against the Petitioner u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act are set aside.

The revision is allowed.

Revision allowed.