STATE OF ORISSA Vs. BISWANATH JOSHI

JUDGEMENT

(1.) THESE two revision applications relate to a proceeding under. Section 16(1) of the Prevention of Food Adulteration Act 1954 (in short the 'Act'). One Biswanath Joshi thereinafter referred to as the 'accused'), opposite party in Criminal. Revision No. 95 of 1937 and Petitioner in the other revision application, faced trial for alleged intervention of provisions, of Section 16(1)(a)(ii) read with Section 7 of the Act.

(2.) ACCORDING to the prosecution, the food Inspector attached to the Chief District Medical Officer, Sambalpur visited the business premises; of the accused on 3 -11 -1981. On demand the accused could not produce licence that he was required to obtain under the provisions of the Act read with the Food Adulteration Rules, 1955 (in short the 'Rules) and the Orissa: Prevention of Food Adulteration Rules 1959' (for short the 'Orissa Rules' though he had exhibited for sale certain food articles for human consumption.

(3.) THIS Court issued notice to the accused in exercise of its suo motu revisional power so far as the application of the provisions of the Probation of Offenders Act is concerned. It has also been submitted on behalf of the State that reasons have to be recorded under the second proviso to Section 16(1)(a)(ii) if a lesser sentence than the prescribed minimum is awarded. In the instant case no such reasons have been assigned and the trial Court erred in awarding a sentence which was lesser than the prescribed minimum without any compelling reason. On behalf of the accused, who has filed the second criminal revision, it has been strenuously urged that the prosecution suffers from several lacunae which rendered it unsustainable and, therefore, the conviction and sentence passed are not tenable. Specifically it has been urged that non -application of mind by the trial Magistrate is apparent from the fact that he has taken cognisance under Section 7 of the Essential Commodities' Act and, therefore, there was no cognisance taken under the provisions of the Act for which the accused could have been made to face trial. It was also indicated that though Rule 50 of the Rules may be held to be applicable to the facts of the case, yet there being no provision in the Orissa Rules for a retailer to take a licence, the law requires an impossible feat to be achieved which no retailer can ever accomplish; It has also been submitted that the prosecution has squarely failed to, establish its case in view of the apparent contradictions in the evidence of the witnesses; the accused statement has not been recorded under Section 313, Code of Criminal Procedure and therefore, the trial was vitiated; there being no material to show that a food Inspector made any attempt to procure attendance of independent witnesses at the time of inspection, the requirements of Section 10(7) of the Act have not been fulfilled; the Chief District. Medical Officer who had submitted the prosecution report had no competency to do so. The learned Counsel for the State has urged that these aspects were not highlighted by the accused in the Courts below, and the points raised being not pure question of law, it cannot be agitated at this stage. It has also been submitted that there is no infirmity in the prosecution, and even if there is any irregularity, the basis of the accusation being within the knowledge of the accused no prejudice has been caused to him and, therefore, the prosecution was validly launched and trial conducted against him. The points raised by the learned Counsel for the parties involve some substantial points which need adjudication.