Shivraj Bang vs State of A.P.

B. Sri Atchutananda Swamy, J.—The accused in C.C.No. 34 of 1991 has filed the present revision petition against the orders of the II Additional Metropolitan Sessions Judge, Hyderabad in Crl.A.No. 186 of 1992 confirming the conviction and sentence given by the VII Metropolitan Magistrate for the offence committed u/s 7(i) & (v) and 2(ia) of the Prevention of Food Adulteration Act.

The facts leading to the filing of this case are that the petitioner herein who was an accused in C.C.No. 34 of 1991 was dealing in edible oils under the name and style of Ranga Nath Oil Depotat Jawaharnagar, Chikkadpally, Hyderabad. At about 1.00 p.m. on26-6-1991, the Food Inspector i.e.,P.W.1 alongwith Panch witnesses P.Ws. 3 & 4 visited the Oil Depot belonging to the petitioner and found about 62 open tins containing 15kgs of groundnut oil for sale. Having suspected that the said oil is adulterated, P.W.I purchased 450 gms of oil by paying an amount of Rs. 15.10 towards the value of the oil. Thereafter, he got the oil divided into three parts and having sealed the bottles by following the procedure prescribed under the Act, forwarded one bottle to Public Analyst for report. The analyst by his report Ex.P-16 dt. 2-8-1991 held that the sample does not conform to the standards of butyro refractometer reading and red units in respect of halphens test. It contains castor oil and cotton seed oil and is therefore adulterated.

From the record it is seen that there was some correspondence between the Director and the Public Analyst and ultimately the Chief Public Analyst by another report dated 7-11-1991 i.e., Ex.P-20 opined that the sample contains 13% of castor oil and there is no methodology for the estimation of percentage of castor oil in admixture of oils. On the basis of the second analyst report by proceedings dt. 5-11-1991 which is marked as Ex.P-19, the Director gave permission to the Food Inspector to launch prosecution against the petitioner under the provisions of the Prevention of Food Adulteration Act (in short "the Act"). It seems mat there is a charge in the Food Inspector by that time and ultimately, P.W.2 filed the complaint before the Magistrate. After analysing the oral and documentary evidence, the trial Court found the petitioner guilty of offence u/s 17(i) & 2(ia)(a) of the Act and ultimately convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for a period of three months u/s 16(1)(a) of the Act. On an appeal filed by the petitioner, the II Additional Metropolitan Sessions Judge by order dt. 18-3-1993 confirmed the conviction and sentence imposed by the trial Court. In the present revision petition Sri C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the petitioner raised the following contentions.

Though admittedly the Director gave permission to the Food Inspector to launch the prosecution against the petitioner on the basis of the second report Ex.P-20 dt. 7-11-1991 given by the Chief Public Analyst while giving a notice to the petitioner as required u/s 13(2) of the Act wherein the accused is informed of the result of the analysis of the sample purchased by P.W. 1 the first analyst report Ex.P-16 dt. 2-8-1991 was enclosed. He was also informed that if he so desires 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 of the oil kept with the Health authority analysed by the Central Laboratory. As such, the entire proceedings are vitiated.

P.W.2 who filed the complaint in the Court cannot be treated as a Food Inspector authorised to file the complaint as the person appointed him as Food Inspector on 5-12-1990 is not the Director on that date, and on that ground also prosecution is vitiated. Thirdly, the plea of warranty is raised u/s 14 of the Act, in the light of the evidence given by D.W.2 who is said to be an Account Working in the company which sold the stocks to the petitioner.

First, I shall take up the last contention raised by the learned Counsel for the petitioner. Admittedly, the groundnut oil was found at the time of taking the samples in the petitioner''s shop in an open condition. As such, the petitioner cannot claim any warranty by contending that he sold stocks in the condition in which he received. But Sri Padmanabha Reddy, the learned Counsel for the petitioner relied on the evidence of D.W.2 and Exhibits D-2 and D-3, the invoices issued by the company which sold the stocks to the petitioner. He also contended that D.W.2 came and deposed in the Court on receipt of summons from the Court. Admittedly D.W.2 claims to be an Accountant and in so many words he admitted that he is not the employee of the seller company. It is not known under what circumstances he came and deposed in the Court. At any rate, not even an authorisation from the seller company was filed in the Court to show that D.W.2 was authorised to give evidence on behalf of the company. Hence, I cannot accept the plea of the Counsel that he is entitled for protection u/s 14 of the Act. Accordingly, the third contention is rejected.

Coming to the first contention, I have gone through Ex.P-19 carefully. Though the analyst report dt. 2-8-1991 was shown in the reference, the Director did not discuss the value of the report and the circumstances under which he obtained the second analyst report. He proceeded to accord permission solely on the basis of the second report which was not furnished to the petitioner herein. It is only the first report dt. 2-8-1991 which was furnished and with the result the petitioner is denied of his valuable right to dispute the correctness of the analyst report by filing an application before the Court seeking analysis of the sample by Central Laboratory. Further, from the record available in the file, it is seen that the Director was not prepared to give permission to prosecute the petitioner on the basis of the first available report i.e., Ex.P-16. But unfortunately, what transpired between the Director and the Chief Public Analyst was not even discussed in the sanction order Ex.P-19. Hence, it cannot be said definitely that the Director would have given permission on the basis of Ex.P-16 to launch the prosecution against the petitioner. As the sanction order did not throw any light on the circumstances under which a second report was called for by the Director, I have no hesitation to hold that there is no application of mind and the orders were vitiated sanctioning the prosecution on the basis of Ex.P-16. Hence, the view taken by the Court below that even if the second report is brushed aside, the case of the prosecution can be sustained on the basis of Ex.P-16, cannot be upheld under the provisions of the Act. Without there being a proper sanction order, no prosecution can be launched against the accused and this being the mandatory provision. I have no hesitation to hold that the sanction order Ex.P-19 is not based on the first analyst report Ex.P-16 which was furnished to the petitioner. As observed supra, mere was not even a mention about the contents of Ex.P-16 in the sanction order. As the very sanction order is vitiated on the basis of which the prosecution was launched, the proceedings cannot be sustained in law and the entire proceedings thereafter are vitiated. On this ground alone, the petitioner has to succeed in this revision petition.

In the light of the view taken by me on the first contention, I need not decide the issue whether the complaint filed by P. W.2 is valid as the person who appointed him as Food Inspector was subsequently appointed as Director, by applying the principle of factum valet. In the result, the revision petition is allowed and the VII Metropolitan Magistrate is directed to refund the fine paid by the petitioner and the bail bonds executed by the petitioner stands cancelled.