Dasarathi Sahu and Another vs State of Orissa

L. Mohapatra, J.—Both the petitioners having been convicted u/s 16(l)(c) of the Prevention of Food Adulteration Act. 1954 (.''the Act'' for short) and sentenced to imprisonment and fine, have approached this Court in this revision after their appeal before the learned Additional Sessions Judge. Bolangir, was dismissed. By order dated 21.4.1993 this revision has been dismissed so far as petitioner No. 2 is concerned and the learned counsel for petitioners has pressed this revision only for petitioner No. 1.

The case of the complainant is that at the relevant time he was working as Food Inspector, Bolangir. Petitioner No. 2 has a retail grocery shop at village Rajamunda where he stores edible oil, spices, cereals. pulses, etc. for sale. Being directed by the Chief District Medical Officer. Bolangir, on the basis of complaint made by one Kunu Bhoi, the complainant inspected the shop of petitioner No. 2 on 25.5.1989 at about 11.30 a.m. At the relevant time petitioner No. 1 was present in the shop and was selling different food articles to consumers and petitioner No. 2 was absent. The complainant after disclosing his identity to petitioner No 1 demanded production of the food licence which could not be produced by him on the plea that his father was absent. At that time petitioner No. 2 arrived and on his arrival the complainant filled up a notice with instruction to produce food licence and wanted to serve it on petitioner No. 2 through petitioner No. 1, but the latter refused to accept the same. The complainant also requested petitioner No. 2 to receive that notice, but he also refused to accept. Thereafter the complainant called some witnesses and in their presence verified different food articles, such a edible oil. spices, cereals, pulses, etc. displayed in the shop for sale. On verification he suspected the mustard oil displayed by the petitioners for sale for human consumption to have been adulterated. He found about 10 kgs of mustard oil kept in an open tin having no label or brand thereon. Therefore, he filled up a notice in Form No. VI of the Act in the names of both the petitioners and expressed his intention to take samples of mustard oil for analysis. The petitioners refused to receive the notice as also to give the samples and closed the door of the shop and went away. On these allegations the complaint was filed for offence u/s 16(1)(c) of the Act.

The petitioners denied the allegations made in the complaint.

The complainant examined four witnesses, out of whom RW. 1 is the complainant himself. P.W.2 is the peon of the office of the C.D.M.O.. Bolangir, who was present at the spot at the relevant time and P.W''s. 3 and 4 are two independent witnesses. Both the Courts below accepted the evidence adduced on behalf of the pro ution and found both the petitioners guilty of the offence.

The learned counsel for petitioners in course of argument submitted that (a) there is no evidence that P.W. 1 was prevented from taking samples. except his own evidence; and (b) that no independent witness has been examined and no effort was also made by P.W.1 to call independent witnesses at the time of inspection. On these grounds the learned counsel for petitioner submits that there is absolutely no evidence on record to substantiate the charge. He further submits that P.W. 1 was never prevented from taking samples and therefore, the question of commission of the offence alleged does not arise. He has drawn the attention of this Court to the evidence adduced on behalf of the complainant.

P.W. 1 is the Food Inspector and complainant. In paragraph 4 of his examination-in-chief he has stated that he filled up a notice in Form No. VI mentioning the names of both the petitioners and disclosed his intention to take samples of mustard oil for analysis, as he wanted to serve the notice in presence of witnesses, P.Ws. 2. 3 and 4, both the petitioners consciously and deliberately refused to receive the notice and also refused to give the sample of mustard oil for analysis and they closed the door of the shop and went away. P.W.2 who is working as Peon in the office of the C.D.M.O. and had accompanied the complainant, in paragraph 4 of his cross-examination has stated that after P.W. 1 came out of the shop inspecting the grocery articles, the accused persons closed the door. P. W.3 who is said to be an independent witness has been declared hostile. P.W.4 is the person who had lodged a complaint against the petitioners and on the basis of whose complaint P.W.1 was inspecting the shop of the petitioners. In his evidence he has stated that the Food Inspector visited the shop and asked for mustard oil sample, but the petitioners did not give the same. Learned counsel for petitioners submits that P.Ws. 1 and 2 are official witnesses and P.W.4 is the person who had lodged a complaint against the petitioner on the basis of which inspection was made by P.W.1 in the shop premises of the petitioners and therefore, P.W.4 is also an interested witness and cannot be described as independent witness. The only independent witness examined as P. W.3 has been declared hostile. He further contends that the evidence of P.W.1 is not corroborated by any independent witness. He further submits that the Food Inspector did not even make any effort to bring in independent witnesses and he purposefully called P.W.4 who had accompanied him.

Learned Additional Standing Counsel submits that on the evidence of P.Ws. 1, 2, and 4 the order of conviction can be maintained as P.W s. i and 2 are official witnesses and P.W.4 is an independent witness. He further submits that P.W. 1 in specific terms has said that when he disclosing his identity expressed his intention to take samples and served the notice, the petitioners refused to accept the same and closed the shop.,and that such conduct, of the petitioners amounts to preventing the Food Inspector from taking sample. 8. Learned counsel for petitioners has referred to two decisions reported in The Public Prosecutor, High Court of Andhra Pradesh Vs. Thalluri Sambasiva Rao, , and Municipal Board Vs. Maluk Das Gupta and Another, .

On the basis of the said two decisions, the learned counsel for petitioners submits that mere refusal to comply with the request of the Food Inspector to sell him goods as sample for analysis does not by itself constitute the offence. He further submits that there must be some overt act of preventing the Food Inspector from taking sample. The learned Additional Standing Counsel has relied upon a decision reported in Rajinder Pershad Vs. State of Haryana, , and submits that the facts of the present case are almost similar to the facts in the said reported case and the apex Court under similar circumstances has held that an offence was made out. In Rajender Pershad''s case (supra) the Food Inspector went to the grocery shop of the accused, disclosed his identity, demanding a sample of Dhania for analysis, sought to serve notice and tendered Rs. 4.80 p. as price of 600 grams of Dhania. The accused went away from the shop under the pretext of passing urine without accepting the notice or the money and did not come back to the shop, though the Food Inspector as well as other witnesses waited in the shop for about one and half hours. Thereafter the Food Inspector took sample and the same was sent for analysis. Under such circumstances, the apex Court held that the Food Inspector was prevented from taking sample in accordance with the provisions of the Act and Rules made thereunder and no other overt act was necessary to constitute the offence. The case of the prosecution in the present case being almost similar to that of the said reported decision, 1 find no merit in the Revision and hold that the Food Inspector was prevented from taking sample in accordance with the provisions of the Act and the Rules made thereunder and such conduct on the part of the petitioners constitute the offence alleged.

The Criminal Revision is devoid of any merit and is accordingly dismissed.