HIGH COURT OF ORISSA: CUTTACK. CRLMC No.2541 OF 200.and CRLREV No.272 of 2008 In the matter of applications under Sections 482 and 397/401 of the Code of Criminal Procedure. --------- (In CRLMC No.2541 of 2008) M/s. Ranbaxy Laboratories Limited - …… Petitioner Versus - State of Orissa and another For Petitioner …… : For Opp. Parties : Opposite Parties M/s Nihar Ranjan Rout and D. Bhattacharya. Mr. S.D.Das, Additional Standing Counsel. (In CRLREV No.272 of 2008) Mohanlal Agrawal and another …….. Petitioners. …… Opp. party. -VersusState of Orissa For petitioners : M/s. H.S.Mishra and T.K.Sahoo For opp. party : Additional Standing Counsel. --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of judgment - 15.03.2012 2 B.K. PATEL, J.order In these proceedings prayer has been made to quash the of taking cognizance dated 12.10.2007 and the criminal proceeding in 2(c) C.C.No.42 of 2007 of the court of learned S.D.J.M., Bolangir.
2. The facts of the case, in brief, are as follows: The criminal proceeding was initiated against the petitioners and others upon receipt of prosecution report submitted by the complainant A.D.M.O. (P.H.), Balangir. It was alleged that on 26.7.2007, as per requisition of the District Administration, the complainant inspected medical shop of accused no.1, who is petitioner No.1 in Crl. Rev. No.272 of 2008 in presence of others including the Executive Magistrate who had previously sealed the shop. Upon verification of articles in the shop, the complainant suspected certain articles including Revital Liquid manufactured by the petitioner in CRLMC No.2541 of 2008 and supplied by accused No.5 who is petitioner No.2 in Crl.Rev. No.272 of 2008 to be adulterated/misbranded. The complainant collected, inter alia, three sealed bottles of each of the suspected articles. In accordance with the provisions under the Act and the Rules framed thereunder, the complainant sent one of the bottles of each of the articles to the Public Analyst for analysis. In the Public Analyst Reports it was stated that the samples of Zerolac, Revital Liquid, Protinol-C 3 Chocolate and Glucose-D powder were found to be adulterated. On receipt of the Public Analyst Reports the complainant placed prosecution report before the Chief District Medical Officer, Balangir (for short ‘the C.D.M.O.’) for obtaining sanction under section 20 of the Prevention of Food Adulteration Act,1954 ( for short, ‘the Act’). In the prosecution report accused persons were alleged to have committed offences under sections ‘7(i), 5(i), 2(ia), (c) and (k)’ of the Act and the Rules read with ‘item index A.11.02, 18.01, NSI(2) and A.07.07 of Appendix-B’ of the Rules punishable under section ‘16(a)(i)(i-a)’ of the Act. Accordingly, by order dated 12.10.2007 learned S.D.J.M., Bolangir took cognizance of offence under section ‘16(a)(i)(i-a)’ of the Act and issued processes against the petitioners and co-accused persons. In response to the applications filed by the accused persons, learned S.D.J.M., Balangir appears to have sent one part of each of the samples under section 13(2) of the Act to Central Food Laboratory, Kolkata. However, articles sent to Central Food Laboratory, Kolkata were returned without any test or analysis on the ground that the samples were found to be Vitamin Tablets, Dietary Supplements, etc. and “not the food items as included under Rule 22 of the Rules”.. In the letter received from Central Food Laboratory it was also stated that the Laboratory “deals with the food articles only as stated under the 4 provision”. of the Act and the Rules. Upon receipt of samples back from Central Food Laboratory, learned S.D.J.M., by order dated 16.1.2008, called for a clarification from the C.D.M.O. as to whether seized samples come under the purview of Rule 22 of the Rules or not. It appears from the order dated 21.2.2008 that by his Memo No.517 dated 2.2.2008 the C.D.M.O. reported that the samples belong to the category of ‘proprietary food’ and therefore are food items. Upon receipt of the report from the C.D.M.O., learned S.D.J.M., Bolangir proceeded ahead with the case.
3. In assailing the criminal proceeding, it was first submitted by the learned counsel for the petitioners that none of the articles taken for analysis is a food item as defined under section 2(v) of the Act and rather, being a dietary substitutes, belongs to the category of proprietary food for which no standard of quality has been prescribed under the Rules. However, in the prosecution report allegations of adulteration of food under sections ‘7(i), 5(i), 2(ia)(c) and (k)’ punishable under section ‘16(a)(i)(ia)’ of the Act have been made. It was contended that no standard having been prescribed under Appendix-B to the Rules for dietary food supplement and proprietary food, there is no basis to allege commission of offence of adulteration punishable under the Act. In this connection, learned counsel for the petitioners relied upon the decisions 5 of the Hon’ble Supreme Court in State of Tamil Nadu –v- R.Krishnamurty, 1980 S.C.C.(Cri.) 200; M.V.Krishnan Nambissan – v- State of Kerala, AIR 196.S.C.1676 and M.Mohammed Ajmal –vAntony and others, 2002 CRI. L.J.2525. It was next contended by the learned counsel for the petitioners that neither under the Act not under the Rules, the C.D.M.O. is competent to furnish clarification in response to the requisition made by the learned S.D.J.M. with regard to the letter received from Central Food Laboratory, Kolkata. Under the Act, certificate of Central Food Laboratory overrides and supersedes the report of the Public Analyst. Referring to sub-sections(3) and (5) of section 13 of the Act, it was strenuously contended that the letter received from the Director of Central Food Laboratory, Kolkata being final and conclusive evidence of the facts alleged in the case, there is absolutely no scope to continue with the criminal proceeding. In support of his contention, learned counsel for the petitioners relied upon decisions of the Hon’ble Supreme Court in Calcutta Municipal Corporation –v- Pawan Kumar Saraf and another, J.1999(1) SC 39.Chetumai –v- State of Madhya Pradesh and another, AIR 198.SC 138.and of this Court in Bhagirathi Das and another –v- State of Orissa, 1988 CRI. L.J.
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4. In reply, it was contended by the learned counsel for the State that even through no standard of quality has been prescribed for dietary food supplements, undisputedly it is proprietary food which is a species of food. There is no scope to urge that dietary substitute is not food. The term ‘proprietary food’ itself indicates that it is a kind of food. It was further argued that articles in questions being meant for human consumption attracts the mischief of adulteration under the Act. The definition of the term ‘adulterated’ occurring under section 2(ia) of the Act is too wide to include all kinds of food including proprietary food. It was argued that non-conformity with the prescribed standard is not the only mode of adulteration. In the present case, the articles sent for analysis being not of the nature, standard and quality as purported and represented in the labels of the packages, it shall be deemed that the articles were adulterated in view of the provision under sub-clause (a) of Clause (ia) of section 2 of the Act.
5. Learned counsel for the petitioners is not correct in urging that an item for which no standard has been prescribed under Annexure-B is not food. In fact, learned counsel for the petitioners themselves urged that dietary supplement is a ‘proprietary food’ within the meaning of Rule 37-A of the Rules. Clause(1) of Rule 37-A of the Rules provides that proprietary food “means a food”. which has not been 7 standarised under the Prevention of Food Adulteration Rules,1955. The very language in clause(1) of Rule 37-A indicates that proprietary food is a food. That apart, the term ‘adulterated’ as defined under subclause(ia) of clause(i) of section 2 of the Act itself goes to show that nonconformity with the prescribed standard of quality under Appendix-B of the Rules is not the only circumstance which renders an article of food adulterated. When an article of food is injurious or insect-infected or is otherwise unfit for human consumption, then also such article shall be deemed to be adulterated.
6. The definition of ‘food’ provided under clause(v) of Section 2 of the Act is too wide to include within its purview ‘proprietary food’ also. Unlike drugs and water, proprietary foods or dietary food supplements have not been specifically excluded from the purview of definition of ‘food’ under the Act. Clause(v) of section 2 of the Act reads: “ ‘Food’ means any article used as food or drink for human consumption other than drugs and water and includes(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purpose of this Act.”
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7. Thus, it is evident that definition of ‘food’ under the Act is inclusive. Decision in State of Tamil Nadu –v- R.Krishnamurty(supra) does not help the petitioners in any manner in the attempt to exclude ‘proprietary food’ from its purview. Petitioners do not dispute that dietary substitute is meant for human consumption and it has no other use. Interpreting definition of ‘food’ in the Act it was held in State of Tamil Nadu –v- R.Krishnamurty(supra) as follows: “According to the definition of ‘food’ which we have extracted above, for the purpose of the Act, any article used as food or drink for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food is ‘food’. It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as intended for some other use. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food. It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self-destruction of these poor, ignorant and illiterate persons that the definition of ‘food’ is couched in such terms as not to take into account whether the article is intended for human consumption or not. In order to be ‘food’ for purposes of the Act, an article need not be ‘fit’ for human consumption; it need not be described or exhibited as intended for human consumption; it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, 9 notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is No.‘food’. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is ‘food’.”
8. In M.V.Krishnan Nambissan(supra) it was held in absence of any standard prescribed under the Act and the Rules framed thereunder for butter-milk, a person selling butter-milk cannot be convicted for an offence under section 16(1)(a)(i) and section 7 of the Act read with Rule 44 of the Rules by applying the standard prescribed for some other food item. Upon reference to item ‘butter-milk’ occurring at serial no.A.11.03 under Appendix-B to the Rules it was held : “Where dahi or curd, other than skimmed milk dahi is sold or offered for sale without any indication as to whether it is derived from cow or buffalo milk, the standards prescribed for dahi prepared from buffalo milk shall apply. It will be seen from the said provisions that it is not an ingredient of the definition of butter-milk that it should contain any particular percentage of solids-not-fat. Indeed, no standard in regard to its contents is prescribed. The only standard, if it may be described as one, is that it shall be a product obtained after removal of butter from curd by churning or otherwise. It is not suggested that the butter-milk in question was not a product obtained in the manner described thereunder. Prima facie, therefore it follows that the appellant has not committed any offence with which he was charged, namely, that he had added water to the extent of 11 per cent to butter-milk.”
. 10 However, while holding that accusation as made in the case was unfounded, the Hon’ble Apex Court concluded the judgment with the dictum:“We should not be understood to have expressed any view on the question whether a prosecution could be launched for adulteration of butter-milk under some other clauses of the definition of ‘adulterated’ in Section 2 of the Act, for in the present case the prosecution was only for not maintaining the standard.”
9. Letter of the Director, Central Food Laboratory, Kolkata reveals that admittedly none of the articles was subjected to analysis on the ground that the articles were found to be “Vitamin Tablets, Dietary Supplements, etc, not the food items as included in Rule 22 of the PFA Rules”. . The worth of Certificate of the Central Food Laboratory has been statutorily recognized under Sub-sections (2-D), (3) and (5) of Section 13 of the Act which provisions read:“Sub-section (2-D) – “Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.”
. Sub-section (3) – “The certificate issued by the Director of the Central Food Laboratory(under sub-section (2-B) shall supersede the report given by the public analyst under subsection(1).”
. Sub-section (5) – “Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section(3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code(45 of 1860):
11. Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory, not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1-A) of section 16, shall be final and conclusive evidence of the facts stated therein.”
10. In Chetumai(supra) it has been held by Hon’ble Supreme Court that under section 13(3) of the Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of Central Food Laboratory. Having been so superseded the report of the Public Analyst could not, therefore, relied upon to base a conviction.
11. It has been held in Calcutta Municipal Corporation –v- Pawan Kumar Saraf and another(supra) : “Section 13 of the Act contains provisions regarding report of Public Analyst as well as the Certificate of the Director of Central Food Laboratory. After institution of prosecution against the person from whom the sample of the article of food was taken (and/or the person whose name and address were disclosed under section 14-A), the accused has the right to apply to the court to get one of the remaining parts of the sample of the food article analyzed by the Central Food Laboratory. It is a right conferred on the aforesaid accused in order to defend the prosecution launched against him or them. For availing themselves of the aforesaid statutory right all that they have to do is to make application to the court within the prescribed time. Once the application is made it is not the look out of the accused to get the result of the analysis made by the Central Food Laboratory. Sub-section(2-B) of Section 13 requires the court to dispatch one of the parts of the sample under its own seal to the Director of Central Food Laboratory. Once it is dispatched it is the duty of the Director to send a Certificate to the court “in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of analysis”.. Sub-section(3) of Section 13 is important in this context and it is extracted below:
12. ‘The certificate issued by the Director of Central Food Laboratory under sub-section(2-B) shall supersede the report given by the public analyst under subsection(1)’. When the statute says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word “supersede”. in law, means “obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal”.. (vide Black’s Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above context the proviso to sub-section(5) can also be looked at which deals with the evidentiary value of such certificate. The materials portion of the proviso is quoted below: “Provided that any document purporting to be a certificate signed by the Director of Central Food Laboratory……… shall be final and conclusive evidence of the facts stated therein.”
. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is “conclusive proof”.. “When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.”
. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is three-fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. ”.
12. In this context, it was rightly urged by the learned counsel for the State that letter received from the Central Food Laboratory is not a certificate in terms of provisions under section 13 of the Act and the Rules framed thereunder. The letter itself goes to show that articles 13 received from the S.D.J.M., Balangir were not subjected to analysis. Sub-section(2-B) of Section 13 of the Act provides that the Director of Central Food Laboratory has to submit a certificate in prescribed form upon analysis of the sample article received from the Court. Sub- Rules(5) and (7) of Rule 4 of the Rules provide that after test or analysis, the certificate thereof signed by the Director shall be supplied to the Court forthwith by the Central Food Laboratory in 13. Form II. The letter received from the Director of Central Food Laboratory, Kolkata in the present case is not in the prescribed form. Therefore, there is no basis for the petitioners to urge that such letter has the sanctity of a certificate as contemplated under the Act so as to supersede or override the Public Analyst Report. In the facts and circumstances of the case, it has to be assumed that though food articles were sent by the S.D.J.M., Balangir for analysis to the Central Food Laboratory, Kolkata, no certificate of the test or analysis has yet been furnished. Sub-section (2-D) of Section 13 of the Act provides that until the receipt of the certificate of the result of the analysis from the Director of Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.
14. In course of hearing learned Assistant Solicitor General was requested to obtain a report from the Director, Central Food Laboratory, 14 Kolkata in the matter. In response thereto, learned Assistant Solicitor General filed in Court letter dated 2.12.2011 received by him from the Central Food Laboratory, Kolkata. The letter reads: “This is with reference to the subject cited above and to clarify that the samples in question did not fall under the definition of ‘Food’ as defined under PFA Act,1954, and therefore, returned back as Central Food Laboratory, Kokata analyses the samples of food only.”
15. In the peculiar facts and circumstances of the case, until and unless result of analysis of food articles is communicated by the Central Food Laboratory, Kolkata under the prescribed form is received, learned S.D.J.M. could not have continued with the criminal proceeding. Continuance of the proceeding without receipt of the certificate of the analysis from the Central Food Laboratory is not only abuse of process of court, but also illegal being contrary to statutory provisions under Section 13 of the Act.
16. Moreover, the term ‘adulterated’ has been defined under sub- clause (ia) of clause (i) of section 2 of the Act. circumstances under which It provides various an article of food shall be deemed to be adulterated. The circumstances are : “ (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; 15 (b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof; (c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof; (d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof; (e) if the article had been prepared, packed or kept under insanitary conditions whererby it has become contaminated or injurious to health; (f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infected or is otherwise unfit for human consumption; (g) if the article is obtained from a diseased animal; (h) if the article contains any poisonous or ingredient which renders it injurious to health; (i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health; (j) if any colouring mater other than that prescribed in respect thereof is prevent in the article, or if the amounts of the prescribed colouring mater which is present in the article are not within the prescribed limits of variability; (k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; (l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health; other 16 (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health; Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed lists of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.”
17. Under sub-clauses (l) and (m) of Clause(ia) of Section 2 of the Act, an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. Rule 5 of the Rules prescribes standards of quality of the various articles of food specified in Appendices -B, C and D to the Rules. In the prosecution report, there is no reference to violation of standards prescribed under Appendix-C or AppendixD of the Rules. Obviously, Rule 5 and Appendix-B do not prescribe standards and limits of all articles of food but only for those specifically mentioned therein. Where no standards are prescribed in Appendix-B for an article of food, it cannot be held to be adulterated within the meaning of sub-clauses (l) and (m) of clause(ia) of section 2 of the Act. However, it may be deemed to be 17 adulterated if it falls within any of the other clauses of section 2(ia) of the Act.
18. In the present case, cognizance of offence under section 16 of the Act has been taken on the allegation of commission of offences under sections 7(i), 5(i), 2(ia), (c) and (k) of the Act. Reference has also been made in the prosecution report of some of the items under the Appendix-B to the Rules, as adverted to at paragraph 2 above.
19. Clause (i) of section 5 of the Act provides that no person shall import into India ‘any adulterated food’. In the prosecution report, there is no allegation that accused persons imported into India any article.
20. Clause(i) of section 7 of the Act provides that no person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute ‘any adulterated food’.
21. There is no allegation in the prosecution report of adulteration under any of the specific substances of clause(ia) of section 2 of the Act except under sub-clauses (c) and (k) of section 2 of the Act”
22. Sub-clause(c) of clause(ia) of Section 2 of the Act provides that an article of food shall be deemed to be adulterated if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof. Sub-clause(k) of clause(ia) of Section 2 of the Act provides that an article of food shall be deemed to be adulterated if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits. The prosecution report does not reveal any of such allegations against the present petitioners.
23. Item not A.11.02 of Appendix-B of the Rules relates to milk products and it reads: “the products obtained form milk such as cream, malai, curd, skimmed milk curd, chhanna, skimmed milk chhanna, cheese, processed cheese, ice-cream, milk ices, condensed milksweetened and unsweetened, condensed skimmed milk – sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi butter”.. Item not A.18.01 prescribes standard of Atta or resultant Atta and it reads: “the coarse product obtained by milling or ginding clean wheat free from rodent hair and excreta. It shall conform to the following standards- (a) Moisture – not more than 14.0 per cent(when determined by heating at 130 C-133 C for 2 hours); 19 (b) Total ash – not more than 2.0 per cent (on dry weight basis); (c) Ash insoluble in dilute HCL – not more than 0.,15 weight per cent (on dry basis); (d) Gluten (on dry weight basis) - not less than 6.0 per cent; and (e) Alcoholic acidity (with 90 per cent alcohol) HSO (on dry weight basis) expressed as - not more than 0.18 per cent.”
. Item not A.07.07 prescribes standard for Dextrose and it reads: “Dextrose is a white or light cream granular powder, odourless and having a sweet taste. When heated with potassium cupritartarate solution it shall produce a copious precipitate of cuprous oxide. It shall conform to the following standardsSulphated ash - not more than 0.1 per cent on dry basis. Acidity - 5.0 gm dissolved in 50 ml of freshly boiled and cooled water requires for neutralization not more than 0.20 ml of N/10 sodium hydroxide to phenolphthalein indicator. Glucose – not less than 99.0 per cent on dry basis.”
24. Admittedly, there is no indication in the prosecution report that any of the articles sent for analysis is milk product or Atta/resultant Atta or Dextrose.
25. In view of the above, it is not at all understood as to how allegations in the case attract provisions under sections 7(i), 5(i), 2(ia), (C)and (K), or items referred under Appendix-BV to the Rules referred to in the prosecution report”
26. It prosecution is further report, by observed order that in accordance with the dated 12.10.2007 learned S.D.J.M., Balangir has taken cognizance of commission of offence punishable under section 16 ‘(a) (1)(i-a)’ of the Act. Upon reference to Section 16 of the Act it is found that there is no such clause as ‘16(a)(1)(i-a)’ under section 16 of the Act. In order to seek clarification, in course of hearing, by order dated 21.10.2009 learned S.D.J.M., Balangir was directed to submit report and C.D.M.O., Balangir was directed to file affidavit regarding the same. C.D.M.O., Balangir filed affidavit stating therein that there is no such provision as section 16(a)(i)(i-a) under the Act and that in the prosecution report said provision was mentioned due to typographical error. According to the C.D.M.O., allegations in the case revealed commission of offence punishable under section 16(1)(a)(i) of the Act. Likewise, S.D.J.M., Balangir submitted a detailed report and concluded : “On the basis of such P.R. the then S.D.J.M., Bolangir on 12.10.2007 took cognizance of offence U/s 16(a)(i)(i-a) of Prevention of Food Adulteration Act which is never there in the Act. The prosecution section under which the cognizance should have been taken for selling and distributing adulterated food are Sec.16(1)(a)(i) and Sec.16(1 A) of the Prevention of Food Adulteration Act.”
27. Thus, it is obvious that there was no application of mind in submission of the prosecution report as well as taking up cognizance of 21 offence. Prosecution report was submitted to proceed against the accused persons for commission of offence and cognizance was taken for commission of offence punishable under a nonexistent statutory provision. Therefore, order of taking cognizance is not sustainable in law and the criminal proceeding is liable to be dropped.
28. In view of the above discussion, both the CRLMC and CRLREV are allowed. Order dated 12.10.2007 passed by the learned S.D.J.M., Bolangir in 2(c) C.C.No.42 of 2007 taking cognizance of offence is set aside. …………………… B.K. Patel, J.Orissa High Court, Cuttack, Dated 15th of March,2012/Palai