RAMA CHANDRA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner faced trial for alleged contravention of the provisions of Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (in short (the Act), was convicted by the learned Sub -Divisional Judicial Magistrate, Kendrapara, who found him guilty of selling adulterated buffalo curd, and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/ -, with default sentence of rigorous imprisonment for one month. The judgment and order of conviction and sentence were upheld in appeal by the learned Second Addl. Sessions Judge, Cuttack.

(2.) THE facts of the case, in short, are that on 6 -8 -1982, the Food Inspector, Cuttack inspected the business premises of the Petitioner and on suspicion that the buffalo curd sold thereon was adulterated, issued notice for purchase and collected sample; the sample collected (600 grams) was divided into three parts and kept in three bottles after adding 16 drops of formal in as preservative in each of the bottles; on analysis the Public Analyst) Orissa found the buffalo curd to be not in conformity with the required standard and opined that the article was adulterated; and with the written consent of the Chief District Medical Officer, Cuttack, prosecution was launched. A copy of the report of the public analyst was sent to the Petitioner on 7 -2 -1983, which was received by him on 10 -2 -1983.

(3.) THOUGH several grounds of challenge were pressed into service by the learned Counsel for the Petitioner, I need not deal with all of them as I find that the conviction cannot be maintained. It is a settled position in law that so far as the collection of sample of curd is concerned, the proper manner and method is that the curd should be divided vertically and the one entire component should be taken, churned arid then divided into three parts; the purpose being to ensure that the churned curd is homogeneous and representative of the sample. The adoption of this method is aimed at obviation of the possibility of accumulation of layer of non -fat milk solids or milk solid fats in a predominate manner in one sample out of the three samples taken for analysis. The evidence of the Food Inspector, who collected the sample is not very enlightening. He has merely stated that he had purchased 600 grams buffalo curd on payment of Rs. 2/ - and had divided the curd into three equal parts and kept the same in bottles after adding the preservative. Not a word is whispered about manner of collection i.e., whether it was vertically divided and churned in order to make it true representative of the sample. It is for the prosecution to prove that the sample taken was true representative of the article exposed for sale, so as to admit of proper and effective analysis. (See, 1976 (1) F.A.C. 75, Municipal Corporation of Delhi v. Ghisa Ram,, 1912 (1) F.A.C. 424, Municipal Corporation of Delhi v. Sat Pal,, 1981(1) F.A.C. 361., Krishan Lal v. The State of Haryana and, 1978 (1) F.A.C. 76. Sri. Ram Swarup v. The State. The manner indicated has also the approval of the Supreme Court in the case of Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and Anr. reported in : : A.I.R. 1983 S.C. 176. The apex Court stressed on the desirability of the adoption of the churning method to make the sample homogeneous and representative. There is also another aspect which corrodes the basis of the prosecution case. The sample was taken on 6 -8 -1982, the public analyst gave his report on 21 -8 -1982, the written consent to launch prosecution was given on 20 -12 -1982 and the prosecution report was filed in Court on 3 -1 -1983. The copy of the analysis report was sent to the Petitioner on 7 -2 -1983, who received it on 10 -2 -1983. There are various long periods of unexplained inaction, the illustrative periods being between 21 -8 -1982 and 20 -12 -1982 and between 20 -12 -1982 t0 7 -2 -1983. As observed by this Court in the case of Satrughana Behera v. Puri Municipality, reported in : 34 (1968) C.L.T. 236, the purpose of giving a copy of the analysis report of the public analyst to the accused is to give him the opportunity of getting the sample analyses by the Central Food Laboratory. The latter's report supersedes the former's report and a valuable right is vested on the accused to prove his innocence by getting the sample analysed by the Central Food Laboratory. The right becomes illusory if on account of long inaction, the purpose of the analysis is lost. Deriving support from the view of the Supreme Court in : : A.I.R. 1967 S.C. 970 (Municipal Corporation of Delhi v. Ghisa Ram), it was held in Satrughana Behera's case (supra) that delayed analysis of the sample of curd would be an exercise in futile, as the curd collected gets decomposed after a period of five and half months. Delay in institution of the prosecution or despatch of the copy of the report of the public analyst to the accused per se is not a ground to vitiate the trial. No hard and fast rule can be laid down about the period after which the process become vitiated. It would depend on the nature of the food article, and the period of delay and the likelihood of decomposition of the sample in question. In the instant case, the opportunity available to the Petitioner to get the sample examined was extended nearly after about six months. The conviction also gets interdicted on account of this laxity. In view of these conclusions, it is not necessary to examine the other contentions raised by the learned Counsel for the Petitioner. The Petitioner is acquitted of the charges.