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Bichitrananda Nayak Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in45(1978)CLT369; 1978CriLJ1050
AppellantBichitrananda Nayak
RespondentState of Orissa
Cases ReferredAmritsar v. Arjan Singh). But
Excerpt:
.....for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1) clearly shows that he preserved the samples in three clean bottles and sealed, labelled and fastened the same then and there in presence of the petitioner. arjan singh). but the facts of that case are clearly distinguishable. the explanation of the accused was that a few traces may have been introduced by the use of the same pali for drawing oil from tin or because of the failure to clean the..........the formalities. one of the samples was handed over to the petitioner and another was sent to the public analyst on 7-10-74 and the third sample was retained by the food inspector. in his report dated 31-7-74 (sic) the public analyst certified that the sample was adulterated. on the basis of his opinion, prosecution was launched after necessary sanction by the chief district medical officer, the sample which had been made over to the petitioner was sent to the director, central food laboratory through the court and in his report dated 17-3-76 the director of the central food laboratory also certified that the sample was adulterated. on the basis of this report and the evidence of the food inspector and other prosecution witnesses the petitioner was convicted and sentenced to undergo.....
Judgment:
ORDER

P.K. Mohanti, J.

1. The petitioner has been convicted under Section 16(1) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo R.I. for 3 months and also to pay a fine of Rs. 500/- or in default to undergo R.I. for a further period of one month.

2. The petitioner owns a grocery shop at Choudwar. The Food Inspector (P. W. 1) inspected his shop on 4-10-74 at about 3 p.m. and found 7 Kgs. of mustard oil stored for sale. He took samples of the oil after complying with the formalities. One of the samples was handed over to the petitioner and another was sent to the Public Analyst on 7-10-74 and the third sample was retained by the Food Inspector. In his report dated 31-7-74 (sic) the Public Analyst certified that the sample was adulterated. On the basis of his opinion, prosecution was launched after necessary sanction by the Chief District Medical Officer, The sample which had been made over to the petitioner was sent to the Director, Central Food Laboratory through the Court and in his report dated 17-3-76 the Director of the Central Food Laboratory also certified that the sample was adulterated. On the basis of this report and the evidence of the Food Inspector and other prosecution witnesses the petitioner was convicted and sentenced to undergo R.I. for six months and to pay a fine of Rs, 500/- or in default to undergo R.I. for one month more. On appeal, the learned Addl. Sessions Judge maintained the conviction and the sentence of fine but reduced the sentence of imprisonment to a period of three months,

3. It is urged in this criminal revision that in view of difference between the report of the Public Analyst (Ext. 5) and the report of the Central Food Laboratory (Ext. A) the Courts below should have held that the samples were not properly preserved and hence the petitioner should have been acquitted of the charge.

4. Item A.17.06 of Appendix B to the Prevention of Food Adulteration Rules, 1955 defines mustard oil as follows:

Mustard Oil (Sarsonka-Tel) means the oil expressed from clean and sound mustard seeds, belonging to the compestris juncea or napus varities of brassica. It shall be clear, free from rancidity suspended or foreign matter, separated water, added colouring, or flavouring substances or mineral oil. It shall conform to the following standards:

(a) Butyro-refraetometer 58.0 to 60.5reading at 40C(b) Saponification value 168 to 177(c) Iodine value 96 to 110 Poly-bromide test shall be negative.(d) Unsaponifiable mat- Not more than 1.2 ter per cent by weight.(e) Free fatty acid as Not more than 3.2 per Oleic acid cent.(f) Bellier Test (Turbi- Not more than 27.5C. dity Temperature-acetic acid method)(g) Test for argemone oil-Negative(h) Test for hydrocya-nic acid-Negative.The test for argemone oil should be negative.

5. The difference between the two reports of the Public Analyst and the Director, Central Food Laboratory, Calcutta is as follows:

In Ext. 5, Saponification value is shown as 178.0 whereas in Ext. A it is shown as 177.3. Iodine value is shown as 114,9 in Ext.5 whereas it is shown as 105.2 in Ext. A. Free fatty acid as Oleic acid is shown as 0,9 per cent in Ext. 5, but it is shown as 0.5 per cent in Ext. A. Bellier test (Turbidity Temperature-acetic acid method) is shown as 27.0C in Ext. 5 whereas it is 28.3C in ext. A. Butyro-refractometer reading at 40C is 62.2 in Ext. 5, but it is 59.4 in Ext. A.

6. In view of the above difference in the readings it is urged on behalf of the petitioner that the samples were not properly preserved and probably some foreign matter had entered into the same. The evidence of the Food Inspector (F. W. 1) clearly shows that he preserved the samples in three clean bottles and sealed, labelled and fastened the same then and there in presence of the petitioner. If there was any doubt about the cleanness of the bottles, it was open to the petitioner to cross-examine the Food Inspector on that point. But it appears that the above evidence of the Food Inspector was not at all challenged by cross-examination. Section 13(3) of the Prevention of Food Adulteration Act provides that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. Sub-section (5) of that section also provides that the certificate of the Director of Central Food Laboratory is final and conclusive of the facts stated therein. Thus it is clear that for all intents and purposes, the report of the Public Analyst shall cease to exist and only the certificate of the Director can be looked into for finding out the result of the analysis. The Director has found the sample of mustard oil to be adulterated because It does not conform to the standard prescribed by the rules. His report shows that the saponification value and the Bellier Test were in excess of the permissible limit. The Courts below were therefore justified in holding that the sample of mustard oil seized by the Food Inspector from the shop of the petitioner was adulterated.

7. It was next contended on behalf of the petitioner that the saponification value and the Bellier Test being slightly in excess of the statutory standard, Section 95 of the I.P.C. would afford protection to the petitioner in this case and the act of the petitioner in storing the mustard oil would not amount to an offence. Reliance was placed on a decision of the Punjab and Haryana High Court reported in 1973 Cr LJ 721 (Municipal Committee, Amritsar v. Arjan Singh). But the facts of that case are clearly distinguishable. In that case the Public Analyst certified that the sample of mustard oil was adulterated as it contained a mixture of til oil. It was not disputed that til oil is not injurious to human health and in Item A.17.06 of the Rules there was no specific prohibition in respect of the presence of til oil in the sample of mustard oil. It was also not disputed that til oil is far more expensive than mustard oil and whatever mixture there was, should have been introduced accidentally and not intentionally. The explanation of the accused was that a few traces may have been introduced by the use of the same Pali for drawing oil from tin or because of the failure to clean the crusher at the time the oil was extracted. In these circumstances, their Lordships held that the presence of minor traces of til oil in the sample would be protected by Section 95 of the I.P.C. as til oil is also an oil used for human consumption. In the instant case sample of the mustard oil is not of the standard purity required by the statute. The conviction of the petitioner is, therefore, unassailable. In view of the wide prevalence of adulteration especially in respect of an edible oil like mustard oil the sentences awarded against the petitioner are appropriate.

8. The criminal revision is, therefore. dismissed.


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