STATE OF ORISSA Vs. RAMWATAR AGARWALLA

JUDGEMENT

(1.) The order of discharge dated 24-9-1987 passed by the Sub-divisional Judicial Magistrate, Balasore in 2(c)CC case No. 145 of 1983 discharging the opposite parties/accused persons under S. 245(1), Cr. P.C. having been brought to the notice of this Court and the Court being of the opinion that the said order is not proper, a suo motu revision was initiated and accordingly, notices were issued to the accused persons to show cause why the order of discharge be not set aside. On notice being served, the opposite parties (accused persons) have entered appearance through their counsel.

(2.) The facts of the case in brief are that on receiving a prosecution report under S. 16(1) of the Prevention of Food Adulteration Act (hereinafter referred as 'the Act') against the present opposite parties, 2(c)CC case No. 145 of 1983 was registered in the court of the Chief Judicial Magistrate, Balasore and notices were ordered to be issued for appearance of opposite parties. Initially, the case was before the C.J.M., but thereafter it was transferred to the file of the S.D.J.M., Balasore. Two witnesses, namely, the Food Inspector and the Sanitary Inspector were examined on behalf of the prosecution before framing of the charge. Thereafter, parties were heard on the question of framing of charge against the opposite parties. Before the learned S.D.J.M., the learned counsel for the opposite parties had contended that no case for framing of charge was made out because the goods sold vide cash memo Ext. 2 were not meant for human consumption. This contention was advanced on the basis of a printed endorsement on the cash memo that the goods sold under the cash memo were not meant for human consumption. His further contention was that there was non-compliance of the provisions contained in S. 10 of the Act as no independent (one or more) persons were not called for their signatures were taken on the 'punch name' at the time when the sample was lifted. On behalf of the prosecution it was contended that it was not possible to obtain the signatures of independent persons because the persons present on the spot refused to co-operate. The learned S.D.J.M. by placing great emphasis on the endorsement contained in Ext. 2 that 'goods sold vide this memo are not meant for human consumption' and this endorsement being an admitted position, was of the opinion that as the goods were not meant for human consumption, no offence under the Act could be made out against the accused persons. He was also of the opinion that there was non-compliance of the provisions contained under S. 10 of the Act. He was accordingly of the opinion that no case under S. 16(1) of the Act has been made out which, if unrebutted, would warrant their conviction. Accordingly, the opposite parties were discharged.

(3.) Mr. J. R. Das, learned counsel for the opposite parties vehemently argued that the order of discharge was proper and no case for interference was made out. He contends that the order of discharge can be upheld on 2 grounds : (1) there was noncompliance of provisions of Sub-Sec. (7) of S. 10 of the Act in as much as no independent witness was either summoned or his signature obtained and (ii) as the goods sold were not meant for human consumption, no offence under the Act could be said to have been made out against the accused persons. In support of the first contention, reliance was placed on the cases of Dasarathi Pati v. State of Orissa, 1978 Cut LR (Cri) 184 and Narasingh Sahoo v. State, 1978 Cut LR (Cri) 380 wherein it has been held that the provisions contained in Sub-Sec. (7) of S. 10 are mandatory and non-compliance of the same would vitiate the conviction. He also places reliance on the case of Babulal Hargovindas v. State of Gujrat, AIR 1971 SC 1277, wherein it has been held that the provisions of S. 10(7) being salutary should be complied with by the Food Inspector. Relying on the above decisions, he contends that non-compliance of the mandatory provisions vitiates the trial and as such, the order of discharge cannot be said to be illegal.