BAURIBANDHU PATRO Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision has been filed questioning the judgment dated 27.7.2001 passed by the learned 2nd Addl. Sessions Judge, Berhampur in Crl. Appeal No. 57 of 1997(Crl. Appeal 256/96-GDC).

(2.) Prosecution case in short is that on 26.5.1992, P.W. 1 who was then the Food Inspector attached to the Berhampur Municipality had visited the grocery shop of the accused situated at Golapalli Street, in the town of Berhampur and when the accused was very much present in the shop and engaged in selling different variety of grocery articles to the customers for human consumption, the shop being inspected by P.W. 1, he suspected the Ground-nut oil and Turmeric powder kept for sale in the said shop for human consumption to be adulterated. The sample from those two food items being collected observing all such formalities as required under the rules in presence of the accused and the office peon, P.W. 2 when other independent persons did not come forward to cooperate, P.W. 1 prepared all required documents. Finally the samples were sent for analysis by Public Analyst. The Public Analyst while finding the sample of Ground-nut oil to be in conformity with the standards prescribed in the rule, found the sample of Turmeric powder as adulterated for the presence of foreign starches i.e. 10% of rice starches as detected which is in contravention of rule 44 (h) of the P.F.A. rules. The prosecution was then launched with the written consent of the Local Health Authority-cum-CDMO, Berhampur.

(3.) Mr. D.P. Dhal, learned counsel for the petitioner without going to question those factual findings rendered by the courts below in view of the defence taken by the accused and answered against the accused, attacks the finding of conviction of the accused for commission of offence under section 16(1)(a)(i) of the Act as returned by the trial court and confirmed in appeal on the ground of non-compliance of the mandatory provision of section 13(2) of the Act. According to him, in view of said non-compliance when the accused has been deprived of exercising the valuable right conferred on him under the statute in getting the second part of the sample re-analysed at the Central Food Laboratory and questioning the finding of the Public Analyst, the prejudice is writ large and on that very ground, the prosecution stands vitiated. He thus submits that the report of the Public Analyst Ext.10 cannot be pressed into service to hold that this accused was selling adulterated Turmeric powder for human consumption.