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Bansidhar Behera Vs. Puri Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in51(1981)CLT355; 1981CriLJ836
AppellantBansidhar Behera
RespondentPuri Municipality
Excerpt:
.....trial or in any inquiry or other proceedings under this code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) in determining whether any error, omission or irregularity in any pro-proceeding under this code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. in all such cases the only issue is whether the error has misled the accused causing prejudice and leading to failure of justice. this issue can be resolved by seeking answers to certain corollary questions, namely, did the accused..........analyst for analysis who reported that the cheese was adulterated. so the food inspector filed prosecution report after obtaining sanction from the competent authority.3. the plea of the petitioner was that the cheese was not adulterated.4. prosecution examined 3 witnesses. no witness was examined on behalf of the defence. p. w. 1 is the food inspector who took the sample of cheete. p. w. 2 is the food inspector who succeeded p. w. 1 on his transfer. p. w. 3 is a peon who was present at the time of taking sample. the report of the public analyst which has been marked as ext. 5 showed that the sample was adulterated and did not conform to the standard prescribed for chhena under the prevention of food adulteration rules as the moisture contents were more and milk fat was less. both.....
Judgment:
ORDER

J.K. Mohanty, J.

1. The petitioner was convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter called the 'Act') and was sentenced to six months' R.I. and to pay a fine of Rs. 1,000/-, in default to undergo R. I. for six months by the Subdivisional Judicial Magistrate, Puri. In appeal, the conviction and sentence were maintained. Hence this revision.

2. The case of the prosecution was that on 19-2-77 the accused-petitioner was selling cheese (Chhena) for human consumption at Balighat in Puri town within Puri Municipal area. Suspecting the cheese to be adulterated, the Food Inspector (P. W. 1) took samples of the same after observing all the formalities. He sent the sample to the Public Analyst for analysis who reported that the cheese was adulterated. So the Food Inspector filed prosecution report after obtaining sanction from the competent authority.

3. The plea of the petitioner was that the cheese was not adulterated.

4. Prosecution examined 3 witnesses. No witness was examined on behalf of the defence. P. W. 1 is the Food Inspector who took the sample of cheete. P. W. 2 is the Food Inspector who succeeded P. W. 1 on his transfer. P. W. 3 is a Peon who was present at the time of taking sample. The report of the Public Analyst which has been marked as Ext. 5 showed that the sample was adulterated and did not conform to the standard prescribed for Chhena under the Prevention of Food Adulteration Rules as the moisture contents were more and milk fat was less. Both the courts below after considering the evidence against the petitioner have convicted and sentenced him as aforesaid,

5. Mr. Patnaik appearing for the petitioner submitted that the prosecution report was filed under the signature of P. W. 1 on 3-8-77. By then P. W. 1 had ceased to be the Food Inspector of the local area as he had already been transferred in July, 1977. 'Food Inspector' has been defined in Section 9 of the Act which is as follows:

9. Food inspectors.-- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local area as may be assigned to them by the Central or the State Government as the case may be:

xxx xxx xxx xxx This point was argued before the learned appellate, court. The learned Additional Government Advocate argued that at the time of taking sample and obtaining necessary sanction from the Chief District. Medical Officer which was on 28-6-77, P. W. 1 was the Food Inspector for the local area. Even if it is taken that he was transferred on the date of prosecution report was filed, it cannot be said that any illegality has been committed so as to vitiate the trial and as per the provisions of Section 465, Cr. P.C. the conviction and sentence cannot be reversed. Section 465, Cr. P.C. runs thus:

465. Finding or sentence when reversible by reason of error, omission or irregularity.-- (1) Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, jugment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any pro-proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

Even assuming that there is an error in filing the prosecution report, all such 'error' are dealt with in Section 465 of the Code of Criminal Procedure. In all such cases the only issue is whether the error has misled the accused causing prejudice and leading to failure of justice. This issue can be resolved by seeking answers to certain corollary questions, namely, did the accused had a fair trial, did he know what he was being tried for and whether the allegations and facts were explained to him fairly and clearly, whether he was given a full and fair chance to defend himself. If the answers are in the affirmative, the only conclusion could be that there had been no preiudice and failure of justice. If the answers are in the negative, the trial must necessarily be treated as vitiated. If there exists a reasonable doubt regarding the answers, the benefit of doubt must go to the accused. After considering the arguments on both sides and facts and circumstances of the case, I am of the view that, no failure of justice has in fact beep occasioned; in this case, as the accused had full Opportunity of defending his case.

Next point urged by the learned Counsel for the petitioner is that sanction order (Ext. 9) was not filed along with the prosecution report and was filed late. Under Section 20 of the Act no prosecution for an offence under the Act, not being an offence under Section 14 or Section 14-A, shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government. In this case the necessary sanction order has been obtained as per Ext. 9 from the C.D.M.O. on 28-6-77 prior to the filing of the prosecution report, though it was filed subsequently in court which in no way has prejudiced the case of the petitioner as prior sanction had already been obtained from the competent authority. Accordingly, there is no merit in this contention of Mr. Patnaik.

The next contention of Mr. Patnaik is that no independent witness has been examined to support the case of the prosecution that the sample was in fact taken in their presence. It appears from the evidence of P. W. 1 that though some outsiders were present and he requested them to be witnesses, they did not agree. So he made Bhobani Rout, the Peon (P. W. 3) a witness to the taking of the sample. It is also not the prosecution case that sample was not taken. There is, therefore no force in this contention of Mr. Patnaik.

6. Both the courts below after considering the evidence on record have found that the sample was adulterated and so they have convicted the petitioner and have sentenced him as aforesaid. Mr. Patnaik, however, submitted that the petitioner is a poor man, He was selling cheese for his maintenance and it was not possible for him to know that the cheese contained some moisture and less fat which may be due to several causes. He, therefore, submitted that the petitioner may be leniently dealt with. Taking into account the facts and circumstances of the case, and the submission of Mr. Patnaik, I am of the view that a sentence of imprisonment for the period already undergone with a fine of Rs. 500/-, in default to undergo R. I. for 3 months, will meet the ends of iustice.

7. Accordingly, I reduce the sentence of imprisonment to the period already undergone and also reduced the sentence of fine to Rs. 500/- (rupees five hundred), in default to undergo R. I. for three months.

The revision is dismissed with the aforesaid modification in the sentence.


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