SUSIL SANGANERIA Vs. FOOD INSPECTOR CUTTACK MUNICIPALITY CUTTACK

JUDGEMENT

(1.) This criminal revision arises out of the order dated 24-7-1989 passed by Sri J.J. Patra, Sub-divisional Judicial Magistrate Sadar, Cuttack in 2(c) CC Case No. 361 of 1988 directing to send the third sample bottle of the Mustard oil to the Director, Central Laboratory, for test. The revision is also directed to quash the prosecution on account of delay in production of the second and 3rd samples in Court in contravention of S.13(2-A) of the Prevention of Food Adulteration Act.

(2.) The relevant facts of the case are that on 29-3-88, the Food Inspector of Cuttack Municipality purchased sample Mustard oil from the petitioner for analysis. On 30-3-1988, one part of the sample was sent to the Public Analyst and the report of the Public Analyst was received on 19-5-88. As the Mustard oil was found to be adulterated, prosecution Report was filed and cognizance was taken on 14-10-1988. On 31-10-88, the accused appeared through his advocate and filed a petition exercising right under S.13(2) of the P.F.A. Act to send the sample kept with the C.D.M.O. for analysis by the Director, Central Food Laboratory. On 8-11-88, the learned S.D.J.M. passed order directing to send the sample for analysis to the Director, Central Food Laboratory. Vide letter No. 1597 dated 16-12-88, the C.D.M.O., Cuttack was directed to produce the sample bottle on 10-1-89. It appears from the order sheet that on 10-1-1989 the sample bottle was not produced and hence the Court again passed order directing the prosecution to produce the sample bottle by 31-1-89. On 31-1-1989 also the sample bottle was not produced and hence again order was passed on the same day for producing the sample bottle on 28-2-1989. Vide letter No. 503 dated 2-2-1989, the C.D.M.O. was directed with reference to the previous letter No. 1597 dated 16-12-88 to produce the sample bottle on 28-2-1989. As per the direction of the Court, the sample bottle was produced on 28-2-1989. On 1-3-1989, the advocate for the accused filed a memo to the effect that the stopper including the slip of paper pasted on the bottle and thread etc. was drenched with oil and that showed that there was leakage of oil from the bottle through the stopper. The learned S.D.J.M. considered the memo and recorded that the sample bottle was not fit to be sent to the Central Food Laboratory, Calcutta for test. The learned S.D.J.M. passed the order directing the C.D.M.O. to produce the third sample bottle on 7-3-1989. Vide letter No. 203 dated 2-3-1989, the C.D.M.O. was directed to produce the third sample bottle on 7-3-1989. As the C.D.M.O. did not produce the sample bottle on 7-3-1989, the learned S.D.M.O. passed the order to remind the C.D.M.O. to, send the third sample bottle by 15-3-1989. It appears that the letter No. 236 dated 8-3-1989 was written to the C.D.M.O. to produce the third sample bottle on 15-3-1989. On 15-3-1989 also the C.D.M.O., Cuttack did not produce the third sample bottle and hence order was passed to remind the C.D.M.O., Cuttack to produce the sample bottle on 3-4-1989. The letter No. 288 dated 17-3-1989 was written to the C.D.M.O. to produce the third sample bottle on 3-4-1989. The sample bottle was not received on 3-4-1989 and hence again order was passed to remind the C.D.M.O. to produce the sample bottle 20-4-1989. Letter No. 363 dated 4-4-1989 was written to the C.D.M.O. to produce the third sample bottle on 20-4-1989 and on that date i.e. 20-4-1989, the third sample bottle was received. After the third sample bottle was received, a petition was filed on behalf of the accused that there is limitation of 5 days for production of the sample bottle after receipt of the requisition as per S.13(2-A) of the P.F.A. Act and the Local (Health) Authority has failed to produce the same within the period of limitation. It was also stated in the petition that the second sample bottle produced after 3 months was found to be profusely leaking and hence the accused apprehended that on account of the inordinate delay the result of analysis by the Director may be substantially different and the accused would be prejudiced and hence the sample bottle should not be sent to the Central Laboratory and the trial should be commenced on the basis of the report of the Public Analyst. On 20-4-1989 a memo was filed on behalf of the accused through advocate to the effect that there was leakage from the third sample bottle also and the outer cover of the bottle was drenched with oil. It appears that on 24-4-1989 an objection was filed by the prosecution through advocate and the Court seal dated 24-4-1989 also appears on the petition, but it was recorded in the order sheet that no objection was filed. On 25-4-89, it is recorded on the order sheet that the advocate for the Cuttack Municipality filed objection. There is another Court seal dated 25-4-1989. Although a copy of the objection was filed along with the objection, as the same could not be served due to non availability of the advocate for the accused, the case was posted from date to date and on each date the accused was present, but it was recorded that copy of the objection was not served. Ultimately on 21-7-1989, the matter was heard. On 21-7-1989 a memo was filed on behalf of the accused to the effect that the accused did not want the sample to be sent to the Central Laboratory for analysis. In the objection filed on behalf of the prosecution it was stated that the third part of the sample bottle which was produced on 20-4-1989 was in good condition and there was no possibility of decomposition of the sample. The allegation of the accused that the sample bottle was profusely leaking was denied in the objection. Besides other points of objection were taken. It appears that after considering the memo and the petition filed on behalf of the accused and the objection filed on behalf of the prosecution, the learned S.D.J.M. passed order on 4-7-1989 that in the interest of justice the third sample bottle should be sent to the Central Laboratory for test and opinion even if the accused does not want to exercise his right as contemplated under S.13(2) of the P.F.A. Act. Against this order, the revision is directed.

(3.) In course of argument the learned advocate for the petitioner raised the contention that the sample bottle was not sent by the C.D.M.O. within 5 days after receipt of the requisition as contemplated under Section 13(2-A) of the P.F.A. Act and the learned advocate for the Opp. Party stated that some letters of the S.D.J.M. were not received by the C.D.M.O. and after receipt of the letter when the sample was produced, the Malkhana clerk refused to accept the same and in the letters received by the D.D.M.O., there was direction to produce the sample only on specific dates and the sample bottles were accordingly produced. On account of this I called upon the Opp. Party to file an affidavit in support of his contention and hence an affidavit has been filed by Niranjan Behera, the Food Inspector, Cuttack Municipality. In the affidavit it has been stated that for the first time a letter of the S.D.J.M. bearing No. 1597 dated 16-12-1988 was received wherein there was direction to produce the sample bottle on 10-1-1989. It is further stated in the affidavit that on 19-1-1989 the sample bottle was produced, but as the Malkhana clerk was on leave and as there was nobody to receive the sample bottle, an endorsement was made in the letter of the C.D.M.O. "Directed to produce the sample bottle by another date as M.C. is on leave." It has also been stated that this direction has not been reproduced in the order sheet dated 10-1-1989. It has also been stated that the letter No. 503 dated 2-2-1989 was received by the Local (Health) Authority and in accordance with the direction in that letter, sample bottle was produced on 28-2-1989 and the same was also received by the Court. In the affidavit it has been clearly stated that for the third and last time, the Local (Health) Authority received a letter from the Court of the S.D.J.M. bearing No. 363 dated 4-4-1989 with the direction to produce the third sample on 20-4-1989 and the direction has been complied with. In the affidavit it has been denied that the Local (Health) Authority received the letters Nos. 203 dated 2-3-89, 236 dated 8-3-1989 and 288 dated 17-3-1989. The other statements in the counter-affidavit are not very much relevant for the purpose of this revision.