KINKAR PRASAD MANDAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) CRIMINAL Appeal No. 73 of 1997 (195/96-GDC) preferred against the judgment and order dated 18. 8. 1996 passed by the learned S. D. J. M. , Berhampur in 2 (c)C. C. No. 167 of 1994 (T. R. No. 588 of 1994)convicting him under Section 16 (1a) (i) of the prevention of Food Adulteration Act, 1955 (for short, 'the Act') and sentencing to undergo R. I. for one year and to pay fine of Rs. 2,000, in default to undergo R. I. for three months, having been dismissed by the learned Additional Sessions Judge, berhampur, the petitioner has preferred this revision.

(2.) PROSECUTION case in brief is as follows: the petitioner was running a sweet meat shop in the name and style of 'm/s Mukla Sweets' on the Janana Hospital Road, Berhampur. On 19. 5. 1993 pw1 Food Inspector of Berhampur municipality went for inspection to the shop along with PW2 his Office Peon. The petitioner was engaged in selling food articles like Rasgola, Golapjamun and Raskadam etc. for human consumption. On verification, the petitioner was found to have a valid food licence. However, on inspection he suspected, Raskadam exposed for sale in the shop to be adulterated. PW1 expressed his intention to purchase raskadam for analysis by the Public analyst. None of the customers present in the shop agreed to be cited as witness. Therefore, PW1 served notice in Form No. VI (office copy marked Ext. 1) to the petitioner and purchased 1,500 grams of Raskadam in support of which money receipt. Ext. 2 was granted by the petitioner in presence of PW2. PW1 divided the purchased sample quantity of Raskadam into three equal parts, kept each part in a clean and dry polythene packet, added preservative to each part and thereafter packed and sealed the packets by affixing paper slips issued by the chief District Medical Officer. PW2 and the petitioner signed on the paper slips. PW1 sent one of the sample packets to Public Analyst with a copy of memorandum (marked Ext. 3) having specimen impression of the seal under registered parcel. Another copy of the memorandum was sent separately under registered post with A. D. to public Analyst. Ext. 11 the report of the public Analyst indicated that sample article sent for analysis was adulterated. Accordingly, PW1 submitted prosecution report in the Court of learned S. D. J. M. , Berhampur. On production of the prosecution report and other materials, the C. D. M. O. , passed sanction order Ext. 8 for prosecution and also sent intimation (copy marked ext. 9) to the petitioner along with a copy of Ext. 11 to get sample of food kept in his office analysed in the Central Food Laboratory if the petitioner so liked as required under Section 13 (2) of the Act. Defence plea was complete denial of the allegations. In order to substantiate the charge, prosecution examined two witnesses and also relied upon documents marked ext. 1 to 11. No defence evidence was adduced. On appraisal of evidence on record, learned trial Court convicted and sentenced the petitioner as stated supra.

(3.) THOUGH learned counsel for the petitioner advanced elaborate arguments assailing the findings of the Courts below, there is little scope for a revisional Court to enter into the arena of appreciation of evidence in order to interfere with the concurrent findings of facts recorded by the trial Court and upheld by the appellate Court. Mis-appreciation of evidence also does not constitute a ground to exercise jurisdiction by the revisional Court to re-appreciate evidence. However, non-consideration of material evidence or consideration of extraneous material affects the legality of findings which occasions necessity for interference. It was rightly contended that procedure prescribed for collection of sample of food by the Food Inspector for the purpose of analysis is not an empty formality. Rule 14 of the Prevention of Food Adulteration Rules 1955 (for short the 'rules') explicitly provides that samples of food shall be taken in clean dry bottles or jars or in other suitable containers. In the present case, the categorical evidence of PW1 Food Inspector is that he kept each part of the sample in a clean and dry polythene packet separately. In his cross-examination PW1 deposes that polythene packets in which samples were kept were not cleaned at the spot. PW2 does not support, and rather contradicts, PW1's assertion that polythene packets were used by PW1. PW2 testifies that PW1 kept sample of Raskadam in three clean dry bottles. PW1 reiterates that corks were put on the bottles and that bottles were sealed with labels, paper wraps and paper slips. In cross-examination, PW2 went to the extent of asserting that he himself had cleaned the bottles in which samples of Raskadam were kept by PW1. Neither of the learned courts below has considered such vital inconsistency in the evidence. In view of such material discrepancy, the prosecution is found to have failed to prove compliance of the mandate under Rule 14 of Rules. It is also found that PW2 testifies in cross-examination that there was only one and half kg. of Raskadam in total in the petitioner's shop and PW1 purchased the entire quantity. However, PW1 states that there was about 5 to 6 kgs. of Raskadam in the petitioner's shop, PW2's evidence renders evidence of PW1 regarding the manner of collection of sample from the petitioner suspicious. In addition, it is also found that though one part of the sample food article was sent to Public Analyst on 20. 5. 1993 and the Public Analyst's report Ext. 11 has been signed on 25. 6. 1993, prosecution report was filed as late as on 25. 4. 1994 and notice under Section 13 (2) of the Act was sent to the petitioner on 28. 4. 1994. There is no explanation for such inordinate delay in launching the prosecution and intimating the petitioner regarding his right to get a part of the sample retained with the Local Health authority examined under the Central laboratory. Launching of prosecution and dealing with food sample in such casual manner also render the prosecution vulnerable. In this context, decisions of the Hon'ble supreme Court in Municipal Corporation of Delhi v. Ghisa Ram as well as of this court in Dhadu Behera v. Puri Municipality and another2 and State of Orissa v. Munadhar Agrawala may be referred to. In such circumstances, it will be unsafe to hold that the prosecution has established beyond reasonable doubt the charge against the petitioner.