Narayan Das vs State of Orissa

J.K. Mohanty, J.—This revision is directed against the judgment of the Sessions Judge, Mayurbhanj-Keonjhar in Criminal Appeal No. 78-K of 1975 confirming an order of conviction of the Petitioner u/s 16(1)(a) of the Prevention of Food Adulteration Act (Act No. 37 of 1954) (hereinafter called the ''Act'') and sentence to undergo S. I. for one week and to pay a fine of Rs. 300/-, in default to undergo S. I. for a further period of one week passed by the Subordinate Judge-cum-Magistrate 1st Class, Keonjhar.

The case of the prosecution is that the Petitioner was a retail grocer at Harichandanpur bazar and one Gurucharan Prusti (p. w. 3) was his Salesman. On 29-9-1974 at about 1. 30 p. m. the Food Inspector (p. w. 1) inspected the shop of the Petitioner and suspecting that Niger oil and Bengal gram stored for sale in the shop to be adulterated made a statutory purchase of Niger oil and Bengal gram from the Salesman Gurucharan Prusti (p. w. 3) in the absence of the Petitioner from the shop after serving requisite notice (Ext. 1). He also obtained a receipt (Ext. 2) from p. w.3 in evidence of the purchase made p. w. 1 sent the articles purchased by him to the Public Analyst, Government of Orissa and obtained his opinion as per Exts. 6 and 7 that the samples of Niger Oil and Bengal Gram were adulterated. On receipt of the report he obtained order of sanction and filed the prosecution report before the Magistrate against the accused Petitioner, who, according to p. w. 1, was the owner of the shop.

On behalf of the prosecution three witnesses were examined. P. w. 1 is the Food Inspector, p. w. 2 is the field worker of the Family Planning Department and is a witness to the purchase of the articles. P. w. 3 Gurucharan Prusti is alleged to be the Salesman from whom the samples were taken. The plea of the Petitioner is denial of the charge and he has further stated that he is not the owner of the shop in question, but the shop belongs to Gurucharan Prusti (p. w. 3).

Mr. Das, learned Counsel appearing for the Petitioner, submits that the Petitioner has been illegally convicted; that he is neither the owner of the shop nor he has sold the articles; that he was not present in the shop: that the owner of the shop is p. w. 3 ; and that assuming for the sake of argument that the Petitioner is the owner of the shop, the provisions of Sections 10(7) and 11(4) of the Act and Rules 7(3) and 9(j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules) have not been complied with and the Petitioner IS entitled to acquittal.

Mr. Das further submits that p. ws. 1 and 2 belong to the same Department (which is admitted by p. w.2) and they have said that the Petitioner is the owner of the shop. No other independent person has been examined to prove that Petitioner is the owner of the shop. P. w. 3, who is alleged to be the Salesman according to the prosecution, has categorically stated that he is the owner of the shop. P. w. 1 has stated that the Food Licence stands in the name of the accused Petitioner, but no step was taken to prove the same which would have clinched the issue. On the other hand, in the receipt (Ext. 2) which has been signed by Gurucharan Prusti (p. w. 3) it has been mentioned:

The following commodity of quantity. (l) Niger oil...375 grams (2) Bengal Grane...750 grams has been purchased with the reasonable prices by the Food Inspector. Keonjhar @ Rs. 5.72 p. for analysis which is kept in stock in my shop for sell situated at Harichandanpur bazar, Dist.-Keonjhar.

Admittedly the accused Petitioner was not present at the time of sale. The sample bottles were also handed over to p. w. 3 Gurucharan Prusti as per Ext. 3.

According to Rule 9(j) of the Rules the report .of the analyst is to be sent by registered post to the person from whom the sample was taken within 10 days from the date of receipt of the said report. According to p. w. 1 the sample was received on 3-12-1974 and he sent the report by registered post to the accused Petitioner on 26-3-1975. No postal receipt In support of sending the sample to the accused Petitioner nor any acknowledgment has been produced by the prosecution. Nothing has also been shown in support of the fact that the report was actually sent to the Petitioner and that he had received the same. According to Rule 9(j) of the Rules, the report is to be sent to the person from whom the sample was taken. Admittedly the sample was taken from p. w. 3. but the report has not been sent to him. The submission of the learned Counsel that Section 19(7) of the Act has not been complied with inasmuch as no independent witness was called at the time of taking the sample cannot be accepted in view of the fact that p. w. 1 has categorically stated that he called the outsiders who were present there, but they were unwilling to be a witness to the taking of the sample. As p. w. 2 was willing to be a witness, he had taken the sample in his presence. In view of the decision re ported in Ram Labhaya v. Municipal Corporation of Delhi and another1, the contention cannot be accepted. The other contentions regarding non-compliance of Section 11(4) of the Act and Rule 7(3) of the Rules have no merit.

In view of the above discussion. I hold that the prosecution has failed to establish beyond reasonable doubt that the Petitioner is the owner of the shop; and that the provision of Rule 9(j) of the Rules has been complied with (inasmuch as the prosecution has failed to prove that the analyst report was at all sent either to the Petitioner or to p. w. 3 from whom the samples were taken) and in view of the decision of this Court in Criminal Revision No. 303/77 disposed of on 21-7-1978 and in Criminal Revision No. 436 of 1977 disposed of on 6-10-1978 the Petitioner is entitled to acquittal.

In the result, therefore, the revision is allowed, the order of conviction and sentence passed against the Petitioner is set aside and the Petitioner is acquitted. He may be released from the bail bond.

Revision allowed.