State of Orissa vs Jami Surya Rao

S. Acharya, J.—This is an appeal u/s 417(1), Code of Criminal Procedure against an order of acquittal passed by the Sessions Judge, Jeypore in Criminal Appeal No. 20 of 1973. The accused was convicted by the trial Court u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 therein after referred to as the ''Act'') and was sentenced to thereunder to undergo R.I. for five months and to pay a fine of Rs. 500/ -, in default to undergo R.I. for 2 months.

The prosecution case is that P.W. 3, the Food Inspector, Jeypore Municipality, on 27-5-1966 purchased 330 grams of cocoanut oil from the accused and from his shop, in accordance with the formalities prescribed under the Act, distributed the same in three bottles, sealed the same, and gave one bottle of the same to the accused and sent another to the Analyst, Government of Orissa, Bhubaneswar. On the report (Ext. 6) of the Public Analyst dated 23-8-1966, that the said cocoanut oil was adulterated, the Food Inspector drew up his prosecution report dated 14-9.1966 and, as it appears from the lower Court record, the same was filed in Court on 31.5.1967. Then for the first time, for reasons best known to the prosecution and the Court, on 23-12-1970 the Court ordered for issuing summons to the accused. It is not known why the record of the case was not placed before the Court till 23-12-1970 though the prosecution report was received in Court on 31-4-1967. The summons issued for the first time on 23-12-1970 were actually served on the accused on 6-5-1972, i. e. after a long lapse of about one and half years, and neither the prosecution nor the Court took any interest in obtaining the attendance of the accused within a reasonable time after the issue of summons in December, 1970. From the above facts it is quite evident that due to the culpable laches, indifference and negligence of the prosecution and also of the Court the notice of institution of the case could not be given to the accused within a reasonable time, and naturally he did not have the opportunity of taking steps on any earlier occasion for sending the sample of the cocoanut oil, which had been given to him, to the Director of Central Food Laboratory (hereinafter referred to as the ''Director'') under the provisions of Section 13(2) of the Act. The said sample, seized on 27-6-1966, remained with the accused for six years, i. e. till 6-5-1972, when possibly he could have sent the same to the Director for examination even if he would have acted with immediate promptitude. The accused has challenged the finding of the Food Inspector that the cocoanut oil seized was adulterated. On the facts of this case it can easily be said that the prosecution was guilty of laches in prosecuting the case in a bona fide manner, and the Court also did not take adequate caution and care to give early notice of the Institution of a case of this nature to the accused, enabling him to avail, within a reasonable time, of all the possible measures for his defence and specifically those given to him under he law. The right of the accused to send the sample given to him to the Director for examination as provided u/s 13(2) of the Act is available right, and the prosecution and the Court concerned should always see that valuable right is not denied to the accused, directly or indirectly, due to any laches, delay and or negligence on their part.

Mr. Mohanty, the learned Additional Government Advocate, cited the decision reported in Ajit Prasad Ramkishan Singh Vs. The State of Maharashtra, , and submitted that in view of the said decision the accused cannot seek shelter under the said plea of delay in instituting the case and in serving the ''summons on him as he did not take recourse to the provision of the law in getting his part of the sample examined by the Director and also did not show that there was the possibility of deterioration of the quality of the said cocoanut oil within the said period of six years. In the above mentioned reported decision their Lordships were concerned with a case of unboiled buffalo milk with which preservative had been added though not of the required quantity, and the said milk was seized on the 1st July, 1965 and summons of the case were served on the accused on 13-9-1975. The accused''s counsel contended that as the required quantity of preservative had not been added to the milk and there was delay in the service of summons on the accused, he was deprived of his right to have the sample analysed by the Director. Their Lordships, on the facts of that case, held that in order to avail of the said defence the accused should have sent the sample of milk with him to the Director and should have summoned the Public Analyst on whose report he was prosecuted. To the facts of the case the observations made by their Lordships of the Supreme Court in the case reported in Shri Ambica Mills Co. Ltd. Vs. S.B. Bhatt and Another, , appear to me very apt. Their Lordships in this case held that the right of the accused conferred u/s 13(2) of the Act to send the sample given to him for analysis to the Director of Central Food Laboratory is a valuable right and it is expected that the prosecution should act in such a manner so as not to deny him that right or to make that right ineffective. Their Lordships have observed:

The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in - order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of tee deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.

Having stated so, their Lordships have of course said:

We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor'' cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any Opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.

In the present case before me the prosecution report was filed after a long lapse of time and there is no explanation for this delay. No effective step: for the issue of summons on the accused were taken within a reasonable time and summons were served on the accused after six years of the seizure of the oil.

It is of common knowledge, and Courts can take judicial notice of the fact that a sample of cocoanut oil, kept merely sealed in the ordinary process in a container, would not retain the exact quality in which it was seized after a lapse of five to six years, particularly when no preservative is added to it. So, in the present case, the sample of cocoanut oil left with the accused on 27-5-1966 was certainly not maintaining its original quality of May 1966 in May, 1972, when only the accused could have sent the said sample to the Director for examination. Obviously therefore if the said sample would have been sent to the Director in the year 1972 that would not have secured the purpose for which such an examination is provided under the Act. Thus by the said delay the accused was prevented from availing of a valuable defence only due to the conduct of the prosecution and the laches of the Court below. Because of the peculiar facts of this case I am of the view that the observations made in Ajitprasad''s case'', which were made on the facts of that case, do not apply to this case.

Apart from the above consideration, it is just possible that in course of six years the accused might have misplaced or lost the said sample by May, 1972. When I consider this aspect of the matter I should not be understood as laying down a general rule that the accused is not required to preserve the sample handed over to him under Rule 9(j) of the Act for a long time and that a plea of misplacement or loss of such sample will be a good defence in a case of this nature. Though such a plea may not always serve as good defence, one cannot lose sight of the reasonable possibilities arising out of such unreasonable delay. One cannot expect a man to preserve such a thing for an indefinitely long period or for an unreasonably long time in the expectation of a possible prosecution against him. The delay of six years in giving notice of this case to the accused certainly is a factor to doubt if really the accused had with him the sample given to him six years ago; more specially in view of the fact that there is nothing on record to show that the accused had any previous notice of the fact that the prosecution on this account was pending against him.

On the above considerations and because of the peculiar facts of this case I am inclined to agree with the findings of the Court below that the accused''s right to get his portion of the sample examined by the Director was indirectly frustrated for no fault of his own, and that he was seriously prejudiced in his defence in this case.

On the above considerations I am not inclined of unsettle the order of acquittal passed in this case.

The finding of the Court below that the prosecution could not establish the fact that the Food Inspector purchased the sample in question is incorrect and is not in conformity with the evidence on record. The learned Counsel appearing for the accused did not at all question the prosecution assertion that the cocoanut oil in question was purchased from the accused.

True, it is that the prosecution has not proved the sanction for prosecution strictly in accordance with law. The prosecution report shows that the Health Officer sanctioned the said prosecution, but none of the prosecution witnesses has specifically proved that portion of the order as it should have been done. However, P.W. 3 has stated that he submitted that prosecution report after obtaining the sanction of the Health Officer, and he proved the said prosecution report as Ext. 5. The defence did not cross-examine P.W. 3 on any aspect whatsoever. So the fact deposed to by P.W. 3, that he obtained the sanction of the Health Officer on the prosecution report Ext. 5, was not challenged by the defence. Thus on the facts of this case I will not hold that the case suffers from the want of sanction in this case.

For reasons stated above I do not like to interfere with the finding of acquittal in this case. Accordingly the order of acquittal is upheld and the appeal is dismissed.