STATE OF ORISSA Vs. JAMI SURYA RAO

JUDGEMENT

(1.) THIS is an appeal under Section 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 under Section 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.

(2.) 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 under Section 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.

(3.) 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.