Judgment:
A. Pasayat, J.
1. M/s. St. Marry's Oil Industries through Joseph Verghese Managing Partner calls in question legality of the order passed by learned Sub-Divisional Judicial Magistrate, Sadar, Cuttack (in short, the 'SDJM') while dealing with application made by the petitioner and Cuttack Municipality (in short, the 'Municipality,) relating to certain articles seized which the Municipality prayed for permission to destroy.
2. Sans unnecessary details the background facts are as follows :
Petitioner claims to have sent about 1519 tins of coconut oil of different brands to Cuttack on 11-11-1991 through South Eastern Roadways (hereinafter referred to as the 'carrier'), to be delivered at the depot of petitioner at Cuttack. The Food Inspector attached to Cuttack Municipality collected samples on 21-12-1991 out of tins bearing Deepak brand. Petitioner's grievance is that though Municipality claims to have got the sample analysed, yet the report of such analysis was not made available to it, for disputing correctness thereof, if circumstances so warranted. An application was filed before learned SDJM on 22-6-1992 praying for a direction to the Municipality to indicate as to what was the report received from the Public Analyst, in respect of sample collected. On the same day, Municipality filed an application for destruction of articles contained in the tins from which sample was collected. The petition was purportedly Under Section 11(4) of the Prevention of Food Adulteration Act, 1954 (in short, the 'Act'). Both the applications which were registered as Misc. Casa Nos. 164 and 166 of 1992, were taken up together for consideration. On 23-7-1992 a direction was given to the Municipality to serve a copy of the report of Public Analyst on the petitioner by 29-7-1992. Petitioner's grievance is that notwithstanding such direction, copy was not served, but the matter was disposed of by order dated 6-8-1992 holding that articles were to be destroyed. An application for revision was filed, but it did not bring any relief to the petitioner, and was rejected by the learned Second Addl. Sessions Judge, Cuttack.
3. The main plank of petitioner's contention in support of the present application, which is one Under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') is that petitioner has been prejudiced because as yet no copy of the report has been served on it, and order for destruction is otherwise contrary to law because the carrier admittedly from whom sample was collected, has not been noticed. It is additionally submitted that Sub-section (5) of Section 11 mandates the Magistrate to consider evidence which he may deem necessary to be taken before directing destruction of articles. Mr. N. Panda, learned counsel for the Municipality. on the other hand, contended that provisions of Sec. `11 having nothing to do with those of Section 16 of the Code, since latter provisions deal with imposition of penalties in case of certain contravention. According to him, direction for destruction can be independently given, even if resort to Section 16 has not been made. By way of elaboration, it is stated that Sec 16 deals with persons who commit contraventions, while Section 11 deals with articles which are found to be adulterated or misbranded.
4. The dispute though lying within a narrow compass, presents interesting features. Section 11 deals with the procedure to be followed by the Food Inspectors. Sub-section (5) deals with the power of the Magistrate, inter alias to direct destruction of article of food produced before him if it appears to him on taking such evidence as he may deem necessary that it is adulterated or misbranded, so as to prevent it from being used as human food. An article of food seized under Sub-section (4) of Section 10, unless destroyed under Sub-section (4) of Section 10, is required, to be produced before the Magistrate as soon as possible and in any case not latter than seven days from the receipt of the report from the Public Analyst. In terms of proviso to Sub-section (4) of Section 11 the Magistrate has power to direct the Food inspector to produce articles before him within such time as may be specified in the order if an application is made to the Magistrate for production of such articles by any person from whom such articles had been seized. Sub-section (4) of Section 10 deals with the procedure to be adopted by the Food Inspector, if it appears to the said authority that any article intended for food is adulterated or misbranded. He may seize and carry away or keep in the safe custody of the vendor such articles in order that it may be dealt with as provided in section itself and he can in either case, take a sample of such article and submit the same for analysis to a Public Analyst. Before any order for destruction is given by the Magistrate, it has to be 'decided that articles produced before him under Sub-section (4) of Section 11 were adulterated or misbranded. The Magistrate can pass any of the following orders :
(i) forfeiting it to the Central or State Government or to a local authority ;
(ii) directing its destruction ;
(iii) disposal so as not to be again exposed for sale or used as food ;
(iv) return it to the owner on executing a bond for reprocessing ; and
(v) in case of an adulterant- forfeiting it to the Central or State Government or to the local authority.
These orders are preventive in nature and maybe passed before the prosecution or conviction of the owner. The Magistrate is to decide whether the article is adulterated or not. He may have the report of the Analyst and may take evidence as he deems necessary. The power to take evidence includes his power to send the sample for analysis. He can also allow parties to adduce evidence. A similar view was expressed in Municipal Corporation, Delhi v. J.B. Battling Co. (1978) 2 FAC 23. by the Delhi High Court. It Is therefore, open to the person from whom it is seized to snow that there was in fact no adulteration or misbranding. In the case at hand, it appears that a copy of the report of the Public. Analyst which is stated to be available with the Municipality, has not been served on the petitioner who claims to be entitled to the same. At this juncture, it is relevant to refer to Sub sec. (1) of Section 11 which postulates that when a Food Inspector takes a sample of food for analysis, he shall give in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample, and to the person, if any, whose name, address and other particulars have been disclosed Under Section 14-A. Requirements of Section 14-A are that every vendor 61 an article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food' There is a purpose in the enactment of this provision. Law aims to catch- hold of parsons who are responsible for adulteration or misbranding. if any. The vendor is primarily responsible for any contravention under the Act. But, similarly if he has purchased articles from any other parson, liability also may be attached to the seller from whom the vendor has purchased articles. The vendor can save himself by disclosing name etc. of the person from whom he purchased the article. As appears from the records, a copy of Public Analyst's report was not served on the petitioner. Additionally, the carrier was not a party in the proceedings before the learned SDJM.
5. In the above background, I feel that the matter should be re-adjudicated by learned SDJM. A copy of the report has been served on the learned counsel for petitioner in Court, by learned counsel for the Municipality. It is open to the petitioner and the Municipality to place materials before learned SDJM, in support of their respective claims. Notices shall now be issued to the carrier for appearance. The parties are directed to appear before learned SDJM on 12 1-1994 without any further notice, Learned SDJM shall however, issue notice to the carrier fixing the date of appearance to be 12-1-1994. Copies of objections filed by the petitioner and Municipality in the respective Misc. Case Nos. 164 and 166 of 1992 shall be sent to the carrier. Learned counsel undertake to file copies of objections before learned SDJM within a week from today. Learned SDJM would do well to dispose of the proceeding early. Learned counsel for petitioner states that tins of oil have been damaged and there is already leakage. Learned counsel for Municipality disputes this position. It is stated by learned counsel for petitioner that an appropriate application shall be filed before learned SDJM for safe custody of articles. If such an application is filed, the same shall be dealt with and disposed of in accordance with law,
The Criminal Misc. case is disposed of accordingly. Send back the L. C. R. forthwith.