Judgment:
B.N. Dash, J.
1. Aggrieved by the decision of the learned second Additional Sessions Judge, Berhampur upholding the conviction Under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (for short, 'the Act') and the sentence passed thereunder, the accused-petitioner has preferred this revision.
2. In short, the prosecution case is that on 12-7-1988 at about 12 noon the Food Inspector (PW 3) along with the Sanitary Inspector (PW1), Vigilance Sub-Inspector (PW 2) and the Vigilance Inspector (PW 4) went to the grocery shop of the accused situated at village Dengapodar and made statutory, purchase of Suji, Chana Dal (Bengal gram) and tank refined oil for the purpose of analysis. Each of the samples was divided into three equal parts and all the parts were kept separately in different containers which was duly sealed. One sample from each of the aforesaid articles was sent to the Public Analyst for the purpose of examination and the other two samples from each of the articles were deposited in the office of the Chief District Medical Officer. The Public Analyst reported that while the sample of Suji sent to him was not adulterated, the sample of Chana Dal was adulterated. In respect of the sample of tank refined oil, he opined that on the label of the tin from which the sample had been taken, the name of the vegetable oil from which the refined oil had been manufactured was not mentioned although the same was required to be mentioned under item A 17. 15 of Appendix B to the Prevention of Food Adulteration Rules (for short, the Rules'). After receipt of such reports from the Public Analyst, the Food Inspector sent copies thereof to the accused with the intimation that he was at liberty to ask for sending another sample of Chana Dal and tank refined oil to the Central Food Laboratory tor analysis (yide Ext. 10) and ultimately submitted prosecution report after obtaining written consent from the Chief District Medical Officer.
3. The stand of the accused was that he was not selling adulterated goods.
4. The prosecution, in order to prove its case, has examined 4 witnesses who have already been introduced above and on a consideration of their evidence the learned Chief Judicial Magistrate acquitted the accused for his sale of Chana Dal to the Food Inspector. He however, came to hold that since on the label of the tin from which the sample of tank refined oil was taken there was no mention of the name of the vegetable oil from which the refined oil had been manufactured the accused contravened the provision of item A 17. 15 of Appendix B to the Rules and accordingly he convicted him Under Section 16(1)(a)(ii) of the Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprison- ment for a further period of one month. This order of conviction and sentence having been confirmed by the learned 2nd Additional Sessions Judge, Berhampur in appeal, the present revision has been filed.
5. It is contended by Shri S. D. Das, the learned counsel for the petitioner that there was absolutely no basi9 for the learned trying Magistrate to come to the conclusion that on the label of the tin from which the sample of tank refined oil had been taken there was no mention of the name of the oil from which the refined oil had been manufactured as required under item A 17. 15 of Appendix B to the Rules and as such, the conviction for contravention of the above provision is not sustainable in law. His alternative contention is that even if there is some evidence showing that on the label of the tin from which sample of tank refined oil had been taken there was no mention of the name of the oil from which the refined oil had been manufactured, the conviction cannot be sustained firstly because the accused was not made known at the commencement of the trial that he had contravened such provision and secondly because at the time of his examination Under Section 313, CrPC such incriminating material had not been brought to his notice to enable him to furnish explanation The learned Addl. Government Advocate, on the other hand, supports the impugned judgment.
6. As seen above, samples of three items of food articles had been taken from the shop of the accused and out of them one item namely Suji was not found to be adulterated by the Public Analyst. The learned Chief Judicial Magistrate has already acquitted the accused for his having sold the alleged adulterated Chana Dal. He having found the accused guilty of contravening item A 17. 15 of Appendix B to the Rules, it is necessary to note the said item. The said item, inter alia, states that 'the name of the vegetable oil from which the refined oil has been manufactured shall be clearly specified on the label of the container'. It is significant to note that in the seizure list Ext. 2 there is no mention that on the label of the tin from which the sample of tank refined oil was taken there was no mention of the name of the vegetable oil from which the refined oil had been manufactured. In the prosecution report also the Food Inspector has not stated that on the label of the tin from which the sample of the tank refined oil was taken there was no mention of the name of the vegetable oil from which the refined oil had been manufactured. But it has been stated therein that according to the report of the Public Analyst (Ext. 5) the name of the vegetable oil from which the refined oil had been manufactured was not mentioned on the label of the tin although the same was required to be noted as provided under item A 17. 15 of Appendix B to the Rules. A perusal of the report of the Public Analyst (Ext. 5) only shows that he noted such deficiency therein. It is not understood how the Public Analyst was in a position to know such deficiency. At the time of sending the sample to the Public Analyst, the Food Inspector is required to send a memorandum in form VII separately containing the specimen impression of the seal with which the container containing the sample had been sealed. On verification of the memorandum in form VII (Ext. 9) a copy of which had been sent to the Public Analyst it is seen that there is no mention about such deficiency. So the report of the Public Analyst Ext. 5 disclosing contravention of item A 17. 15 of Appendix, B to the Rules could not have formed the basis of the prosecution report. When the Food Inspector himself does not state in the prosecution report about such deficiency it has to be taken that before commencement of the trial the accused was not put to notice that he was required to face a charge of contravention of item A 17. 15 of Appendix B to the Rules. This is one of the lacunae in the prosecution case.
7. The Courts below have relied on the evidence of PWs 2 and 3 in support of their finding that the label of the tin from which the sample of tank refined oil was taken did not specify the name of the vegetable oil from which the refined oil had been manufactured. In this connection, PW 2 has stated 'the tank refined oil was kept in a tin container of 16 litres capacity. It had no brand impression'. From this evidence it cannot be said that the tin in question did not contain any label much less the fact that the label did not specify the name of the vegetable oil from which the refined oil had been manufactured. As such, both the Courts below went wrong in relying on the evidence of PW 2 in support of their conclusion that there was violation of item A 17. 15 of Appendix B to the Rules. PW 3 has deposed 'tank refined oil was kept in a tin container having 16 Kgs. capacity. It has no brand, label or impression of manufacture'. This witness is the Food Inspector himself and he has not given such evidence in his chief-examination, Such evidence was elicited during his cross-examination. It is not understood why the learned defence counsel put any question which led the witness to give such evidence. No doubt, evidence of a witness in his cross-examination stands in the same footing as his evidence in chief-examination. But the question arises if on the facts and in the circumstances of the case both the Courts below were correct in relying on such evidence of PW 3 in support of their finding regarding contravention of item A 17. 1.5 of Appendix B to the Rules. PW 3 himself admitted that in his prosecution report he had not pointed out any fact indicating contravention of item A 17. 15 of Appendix B to the Rules and as such, while explaining the particulars of offence to the accused he could not have been put to meet a charge regarding his violation of item 17. I5 of Appendix B to the Rules. Under these circumstances, the Courts below went wrong in relying on the evidence of PW 3 in support of their finding regarding contravention of item A 17. 15 of Appendix B to the Rules. Further, it is seen that the attention of the accused was not drawn to such evidence of PW 3 during his examination Under Section 313, CrPC it is well known that the examination of accused Under Section 313, CrPC is not an empty formality, Incriminating materials are required to be brought to his notice to enable him to furnish explanation for the same. In view of this position, when the accused was not put to notice before commencement of the trial that he was required to face a charge for contravention of item A 17. 15 of Appendix B to the Rules his conviction by the trial Court which has been affirmed by the appellate Court cannot be sustained in Taw.
8. In the result, the revision is allowed, the conviction and sentence passed by the trial Court as affirmed by the appellate Court are hereby set aside and he is acquitted. The bail bond fried by him stands cancelled.