STATE Vs. SATYABADI JENA

JUDGEMENT

(1.) THIS is an appeal against a judgment of acquittal passed in Criminal Appeal No. 207 -C of 1970 dated 23.4.1971 by the Additional Sessions Judge. Cuttack. The accused (Respondent herein) was prosecuted under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and Rule 23 of the Prevention of Food Adulteration Rules. In the trial court 3w was convicted to R.I. for six months and to pay a fine of Rs. 100/ -, in default, to undergo R.I. for three months, but was acquitted in appeal as stated above.

(2.) THE prosecution case against the accused was that on 24.5.1965 P.W. 3. the Food Inspector visited a bakery known as the New Orissa Bakery at Cuttack and found that some cakes were, kept stored there for sale for human consumption in a tin tray in that bakery. As P.W. 3 suspected those takes to be adulterated, he purchased 1,500 Grams of the same as sample on payment of its price. Thereafter, lie divided the said sample into three equal parts and kept each part in a dry and clean bottle and corked, sealed and labelled those bottles and gave one of the bottles to the accused on obtaining from him the receipt. Ext. 2/2. for the same. Out of the other two bottles of sample, he sent one to the Public Analyst at Bhubaneswar through a Constable. On analysis by the Public Analyst (P.W. 4) it was found that the cakes received by him were adulterated as they contained metanil yellow, a prohibited colouring material. After necessary sanction P.W. 3 submitted the prosecution report. Ext. 7.

(3.) MR . Dora, the learned counsel for the accused respondent, at the outset contended that on the evidence on record it was not established beyond reasonable doubt that the cakes sent to the Public Analyst were actually from the same stack purchased by P.W. 3 from the aforesaid bakery. In this connection, he con tended that the prosecution evidence relating to this aspect of the matter was of a very unsatisfactory nature, and therefore, the court below was perfectly justified in arriving at the finding that the prosecution failed to establish beyond reasonable doubt that actually a portion of the cakes purchased from the bakery was examined by the Public Analyst, and hence such a reasonable finding of the court below was not liable to be set aside in this Appeal. On a perusal of the evidence on record and its discussion in the impugned judgement I am satisfied that the above mentioned contention of Mr. Dora has sufficient weight and substance. P.W. 3. who purchased the said cakes from the bakery has deposed to the effect that after purchasing the cakes he divided the same into three equal parts, kept each part in a bottle packed scaled and labelled the bottles in the presence of the accused, and thereafter sent one of the said bottles to the Public Analyst The said purchase was made on 24 -5 -65. According to P.W. 3 himself, the memorandum to the Public Analyst was written by him on 27.5.1965. The prosecution report (Ext. 7) shows that the above mentioned memorandum and the sample bottle containing some sample cakes were sent to the Public Analyst on 28.5.1965 through one Jaganath Misra a Constable of the Vigilance Department. The Public Analyst, P.W. 4 in his deposition states that he at Bhubaneswar received the aforesaid articles on 31 -5 -J965. It is not understood why the samples purchased on 24.5.1965 wore kept with P.W. 3 till 28.5.1965. and if on that date he really handed over the same to vi Constable of his own department to be delivered to P.W. 4 at Bhubaneshwar why the same reached P.W. 4 on 31.5.1965. Apart from the above unsatisfactory feature, it is also seen from Ext. 3. the above mentioned memorandum, that red and yellow coloured cakes weighing about 500 grams were sent to P.W. 4. P.W. 1 has also stated in his cross -examination that in the sample purchased by him there were red and yellow coloured cakes. But P.W. 4 states that no red coloured material was found in the sample sent to him. thus obviating the possibility of receiving any red coloured cakes in the sample sent to him. This is yet another very unsatisfactory feature in the prosecution evidence on which the possibility of tampering with the sealed packet sent to the Public Analyst cannot be ruled out. The aforesaid suspicion gains support from the delay caused in sending the sample on its delivery to the Public Analyst as discussed above.