JOSEPH VERGHESE Vs. FOOD INSPECTOR CUTTACK

JUDGEMENT

(1.) M /s. St. Marry's Oil Industries through Joseph Verghese Managing Partner calls in question legality of the order passed by learned Sub -Divisional Judicial Magistrate, Sadar, Cuttack (in short, the 'SDJM') while dealing with application made by the petitioner and Cuttack Municipality (in short, the 'Municipality,) relating to certain articles seized which the Municipality prayed for permission to destroy.

(2.) SANS unnecessary details the background facts are as follows : Petitioner claims to have sent about 1519 tins of coconut oil of different brands to Cuttack on 11 -11 -1991 through South Eastern Roadways (hereinafter referred to as the 'carrier'), to be delivered at the depot of petitioner at Cuttack. The Food Inspector attached to Cuttack Municipality collected samples on 21 -12 -1991 out of tins bearing Deepak brand. Petitioner's grievance is that though Municipality claims to have got the sample analysed, yet the report of such analysis was not made available to it, for disputing correctness thereof, if circumstances so warranted. An application was filed before learned SDJM on 22 -6 -1992 praying for a direction to the Municipality to indicate as to what was the report received from the Public Analyst, in respect of sample collected. On the same day, Municipality filed an application for destruction of articles contained in the tins from which sample was collected. The petition was purportedly Under Section 11(4) of the Prevention of Food Adulteration Act, 1954 (in short, the 'Act'). Both the applications which were registered as Misc. Casa Nos. 164 and 166 of 1992, were taken up together for consideration. On 23 -7 -1992 a direction was given to the Municipality to serve a copy of the report of Public Analyst on the petitioner by 29 -7 -1992. Petitioner's grievance is that notwithstanding such direction, copy was not served, but the matter was disposed of by order dated 6 -8 -1992 holding that articles were to be destroyed. An application for revision was filed, but it did not bring any relief to the petitioner, and was rejected by the learned Second Addl. Sessions Judge, Cuttack.

(3.) THE dispute though lying within a narrow compass, presents interesting features. Section 11 deals with the procedure to be followed by the Food Inspectors. Sub -section (5) deals with the power of the Magistrate, inter alias to direct destruction of article of food produced before him if it appears to him on taking such evidence as he may deem necessary that it is adulterated or misbranded, so as to prevent it from being used as human food. An article of food seized under Sub -section (4) of Section 10, unless destroyed under Sub -section (4) of Section 10, is required, to be produced before the Magistrate as soon as possible and in any case not latter than seven days from the receipt of the report from the Public Analyst. In terms of proviso to Sub -section (4) of Section 11 the Magistrate has power to direct the Food inspector to produce articles before him within such time as may be specified in the order if an application is made to the Magistrate for production of such articles by any person from whom such articles had been seized. Sub -section (4) of Section 10 deals with the procedure to be adopted by the Food Inspector, if it appears to the said authority that any article intended for food is adulterated or misbranded. He may seize and carry away or keep in the safe custody of the vendor such articles in order that it may be dealt with as provided in section itself and he can in either case, take a sample of such article and submit the same for analysis to a Public Analyst. Before any order for destruction is given by the Magistrate, it has to be 'decided that articles produced before him under Sub -section (4) of Section 11 were adulterated or misbranded. The Magistrate can pass any of the following orders :