State of Orissa vs Bhag Chand

V. Gopalaswamy, J.—This appeal is preferred by the State of Orissa against the judgment, of the Judicial Magistrate, First Class, Rayagada, acquitting the accused-Respondent of the charge u/s 16(1-A)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as ''the Act'').

The gist of the prosecution case is that on 8-4-1982 at 6.30 P.M. the Food Inspector inspected the grocery shop of the accused-Respondent and on suspicion that the mustard oil kept by him for sale was adulterated, took samples of the same in clean ''dry glass bottles and sent one such sample to the Public Analyst and the Public Analyst found the sample of the mustard oil to be adulterated and, therefore, by the sale of such adulterated mustard oil, the accused-Respondent committed an offence u/s 16(1)(a)(i) read with Section 7(1) of the Act.

The accused pleaded that he was not guilty of the charge levelled against him. D.W. 1 was examined by the accused.

On a perusal of the judgment of the trial Court, it is seen that the trial Court has acquitted the accused of the charge levelled against him on the following grounds:

(1) Prosecution failed to prove satisfactorily that the Food Inspector had taken the samples of mustard oil in accordance with the provisions under Rule 14 of the Prevention of Food Adulteration Rules (hereinafter referred to as ''the Rules'').

(2) The Food Inspector contravened the provisions of Rule 17(a) of the Rules when he sent the sample taken by him on 8-4-1982 only on 12-4-1982 to the Public Analyst.

(3) The Public Health Authority did not send the report of the Public Analyst immediately after the institution of the prosecution against the accused and, therefore, he violated the provisions of Rule 9-A.

In this appeal, the learned Counsel for the Respondent contended that the trial Court was justified in acquitting the accused on the above grounds, whereas the learned Additional Standing Counsel for the State contended that the order of acquittal in favour of the Respondent on the basis of the above grounds is not sustainable in law.

The prosecution has examined in all four witnesses to prove its case. P.W. 1 is the Sanitary Inspector, Rayagada Municipality, who claims to have accompanied the Food Inspector, Koraput, at the time of the inspection of the shop of the accused. P.W. 2 is the then Supply Supervisor, Rayagada, and P.W. 3 is the then Marketing Intelligence Inspector, Rayagada, and they deposed that they were present when P.W. 4, the Food Inspector, took samples of mustard oil from the shop of the accused.

The trial Court found that the prosecution did not prove satisfactorily that the Food Inspector collected the samples of mustard oil in dry and clean bottles. So the evidence of P. Ws. 1 to 4 on this aspect merits careful consideration P.W. 1 stated in his chief-examination that the samples of mustard oil taken by the Food Inspector were kept in three clean glass bottles. He reitarated in his cross-examination that he found the bottles to be dry and clean. He frankly admitted that the sample bottles were not cleaned in his presence. P.W. 4 is the Food Inspector. He stated on oath in his chief-examination that the samples were put separately in three dry and clean glass bottles. P.W. 4 stated in his cross-examination that he made the sample bottles dry and clean at his office at Koraput. He deposed that at the shop of the accused he did not clean the bottles. On a scrutiny of the evidence of P.Ws. 1 to 4, it is seen that it is the consistent version of P.Ws. 1 to 4 that the three bottles, in which the samples were taken, were clean and dry before the taking of the samples. No doubt, there is a contradiction between the version of P.Ws. 1 and 4 on the one hand and P.Ws. 2 and 3 on the other as to the place where the bottles were made clean and dry. On a consideration of the evidence of P.Ws. 1 to 4, it is seen that the evidence of P.Ws. 1 and 4 to the effect that P.W. 4 brought the clean and dry bottles with him, sounds more probable and true. So the only reasonable inference is that P.Ws. 2 and 3 are not speaking the truth, for whatever reason, when they deposed about the cleaning of the bottles in the shop of the accused. Even if the evidence of P.Ws. 2 and 3 regarding the cleaning of the bottles at the shop of the accused is disbelieved, merely on that score, there is no reason to disbelieve their version that dean and dry bottles were used for, taking the samples. Even otherwise also, even if the evidence of P.Ws. 2 and 3 regarding the taking of samples in dry and dean bottles is ignored altogether, yet there is the reliable evidence of P.Ws. 1 and 4 to show that samples were taken in dean and dry bottles.

The accused is a businessman and if for any reason he felt that the bottles used for taking the samples were not clean or dry, he could have very easily insisted on taking the samples in clean and dry bottles. There is nothing on record to show about the accused raising any objection regarding the bottles used for taking the samples.

In the matter of appreciation of evidence regarding the compliance with the provisions of Rule 14 and about the using of clean and dry bottles for the taking of samples/the learned Counsel for the Respondent relied on many decisions of other High Courts. In Sisinti Haribandhu Patra Vs. State of Orissa, , this Court observed that in view of the categorical assertion of the Food Inspector that the bottles in question were clean and dry, it must be held that there has been no infraction of Rule 14. In any event, whether or not dean and dry bottles were used for taking the samples is a question of fact. On a perusal of Ext. 6, the Analyst''s report, it is seen that the Analyst found the sample of oil to be "dear oil" and found no "separated water" or "suspended matter" and the said findings also confirm the reliable prosecution evidence that the sample was taken in clean and dry battles.

There is absolutely no material to show that the manner of sending the samples to the Analyst was not in accordance with Rule 14. So the acquittal of the accused on the ground that the sample was sent in contravention of Rule 14 is not sustainable in law.

The learned Counsel for the Respondent contended that the sample taken by the Food Inspector on 8-4-1982 was sent by him to the Public Analyst only all. 12-4-1982 and this is in violation of the provisions of Rule 17(a) of the Rules. Rule 17(a) reads thus:

Manner of despatching containers of samples - The containers of the samples shall be despatched in the following manner, namely:

(a) The sealed container of one part of the sample for analysis and a memorandum in form VII shall be sent in a sealed packet to the public analyst immediately but not latter than the succeeding working day by any suitable means.

Rules 17(a) mainly dells with the manner of despatching containers of samples. The direction in, Rule 17(a) that the sealed container shall be sent to the Public Analyst immediately but not later than the succeeding working day by any suitable means is in accordance with Sub-section (3) of Section 11 of the Act which provides that the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food to the Public Analyst. So when the sample collected on 8-4-1982 was sent by the Food Inspector to the Public Analyst on 12-4-1982, it is mainly a violation of Sub-section (3) of Section 11 and incidentally the provisions of Rule 17(a) as well.

So the question that arises for consideration is whether the provision in Section 11(3) and Rule 17 that the Food Inspector shall, by the immediately succeeding working day, send the sample to the Public Analyst is mandatory or directory. In this context, the learned Counsel for the Appellant relied on State of Haryana v. Cheman Singh 1983 (1) F.A.C. 78 (Punjab and Haryana High Court). In this case, the Magistrate''s order acquitting the Respondent solely on the ground that the sample taken was sent to the Analyst after a delay of 5 days was confirmed by the High Court his a very short judgment and there is no discussion on the point in issue whether Section 11(3) is mandatory or directory. Ramesh Chandra v. State of Uttar Pradesh 1982 (1) F.A.C. 190, is a decision by a Single Judge of the Allahabad High Court and the accused was acquitted as the sample was send to the Analyst after 7 days of the taking of the sample. In this decision also there was no discussion on the issue whether Sub-section (3) of Section 11 of the Act is directory or mandatory. State of Maharashtra v. Rajkeran 1987 (sic) SCC 183 does not deal with the issue regarding the delay in sending the sample to the Public Analyst. It is not a case relating to the provisions of Sub-section (3) of Section 11 of the Act. So this decision is not applicable to the facts of the present case.

In Gujarat v. State 1982 Criminal law Journal 726 (Allahabad High, Court), a Division Bench of the Allahabad High Court held that the provisions contained in Section 11(3) laying down that the Food Inspector shall send the sample of food collected by him for analysis to the Public Analyst by the immediately succeeding working day are directory in nature. Their Lordships of the Allahabad High Court, while considering the provisions of Section 11(3) observed thus:

The legislative intention in making the aforesaid provisions Section 11(3) clearly is not to confer any right on the person from whom the sample has been obtained or to give him an immunity from prosecution if the sample is not despatched for analysis by the immediately succeeding working day. Quite clearly the idea in imposing the obligation upon the Food Inspector was to see that the interest of the prosecution was not jeopardised by the Food Inspector acting lethargically and sending the sample collected by him for analysis late and with a view to avoid such changes taking place in the sample which may interfere with its proper analysis.

In G. Chandramouli and Anr. v. The State 1978 CLJ 549, while dealing with the scope of Section 11(3), his Lordship of the Andhra pradesh High Court observed thus:

However, I am not impressed with the argument that the requirement that the Food Inspector shall send the sample on the succeeding working day is intended to protect the interests of the accused. On the other hand it is clearly plain from the report of the joint committee on the bill to amend the Act that these provisions are intended to check the Food Inspectors from indulging in corrupt practices. Therefore, if there is any delay, the Food Inspector may be answerable to the higher authorities but that delay does not in any way prejudice the case of the accused.

The object of the Act is to check the evil of food adulteration and in that direction to give the State Government the necessary means to check the evil.

As observed in G. Chandramouli''s case (supra), if because of the delay the sample gets decomposed, the delay is to the advantage of the accused.

Under Sub-section (2) of Section 13 of the Act, the local (Health) Authority shall, after institution of the prosecution, forward a copy of the report of the analysis to the person from whom the sample'' of the article of food was taken informing him that 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. From the said provision it is seen that the Act contemplates the sending of the sample to the Central Food laboratory long after the date of taking of the sample. From this ''provision it is very clear that a delay of few, days, in sending the sample to the Public Analyst for the first time does not very such matter and it further emphases the point that the provisions in Section 11(3) were intended to check the Food Inspector from indulging incorrupt practices and made them answerable to the higher authorities in case of delay in sending the sample [See Chandramouli''s case (supra).] So in the very nature of things the provisions of Section 11(3) are only directory and, not mandatory. On a perusal of the report of the Public Analyst (Ext. 6) it is seen that the sample sent to him was found to be in a condition fit for analysis according to his certificate. Nothing was placed on record by the defence to suggest that the accused was in any way prejudiced when the sample collected on 8-4-1982 was sent to the Analyst on 12-4-1982.

In view of my above discussion; I find that the trial Court was not justified in acquitting the accused on the ground that there was violation of the provisions of Section 11(3) of the Act and Rule 17(a) of the Rules.

The learned Counsel for the Respondent next contended that as the Local (Health), Authority did not send a copy of the report of the Public Analyst to the accused immediately as required under Rule 9-A of the Rules, the prosecution is vitiated on that score also. In the present case after the C.D.M.O. received the Public Analyst''s report the prosecution was instituted against the accused in the Court of the S.D.J.M. on 18-6-1982 and the Local (Health) Authority sent the copy of the Public Analyst''s report to the accused on 20-6-1982.

In Dolchand v. Municipal Corporation Bhopal and Anr. AIR 1983 Supreme Court 303 the Supreme Court held, that Rule 9(J); of the Rules as it obtained prior to the insertion of Rule 9-A and which is also in parimateria, with Rule 9-A is not mandatory but only directory.

In Tulsiram Vs. State of Madhya Pradesh, , the Supreme Court explained the scope and ambit of Rules 13(2) and 9-A in the following terms:

...The real question is, was the Public Analyst''s Report sent to the accused sufficiently early to enable to him to properly defend himself by giving him an opportunity at the outset to apply, to the Court to send one of the samples to the Central Food Laboratory for analysis? If after receiving the Public Analyst''s Report he never sought to apply to the Court to have the sample sent to the Central Food laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. But conclusions, on this question are : The expression ''immediately'' in Rule 9-A is intended to convey sense of continuity other than urgency. What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right u/s 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9-A is not fatal. It is a question of prejudice....

In Razak Rice and Oil Mills v. Sri Bharat Narayan Patnaik (1989) 2 OCR 17 relying on Dolchand''s case and Tulsiram''s case (supra), this Court held that Rule 9-A is only directory.

In the present case the accused received the copy of the Analyst''s report in time and had taken steps to send the sample to the Central food laboratory and the sample so sent to the Central Food laboratory was in fact duly analysed and the Analyst''s report was sent. The said Analyst''s report was not exhibited by the accused on his side. But the same is on the record. Evidently the said report goes against the accused. So the accused was in no way prejudiced when the Analyst''s report was sent to the accused on 26-6-1982.

On a careful consideration of the materials placed on record, as discussed above, I hold that the order of acquittal passed by the trial Court in favour of the accused on the grounds of non-compliance of the provisions of Rule 14, Rule 9-A and Rule 17(a) of the Rules and Section 11(3) of the Act is not maintainable in law.

The prosecution has established by reliable evidence that the sample of mustard oil in question sold to the food Inspector by the accused was adulterated and there are no circumstances which would absolve the accused of the charge levelled against him. It was earlier found that the trial Court had acquitted the accused of the charge levelled against him on untenable grounds. In view of the unimpeachable evidence adduced on the side of the prosecution in proof of the fact that on the relevant occasion the accused sold adulterated mustard oil to the Food Inspector, I find that the prosecution could successfully bring home to the accused the charge u/s 16(1)(a)(i) read with Section 7 of the Act.

In the present case I am imposing the minimum sentence of imprisonment prescribed u/s 16(1) of the Act as the offence was committed several years ago and as I am now interfering with an order of acquittal.

In the result, I hold the accused-Respondent guilty of the offence u/s 16(1)(a)(i) read with Section 7 of the Act and convict him thereunder and sentence him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/, in default to undergo simple imprisonment for a further period of one month. Accordingly, the appeal is allowed.