Full Judgment
G.B. Patniak, J.
1. The petitioner has been convicted Under Section 16(1)(a) read with section 7(i) Prevention . of Food Adulteration Act (for short., 'the Act) to undergo rigorous imprisonment. four month and to pay a fine of Rs. is 500/ in default, to undergo further rigorous imprisonment of months by the Sub-Divisional Judicial, Magistrate, Panposh, for selling ground nut-oil which was found on analysis to be conviction and sentence against the petitioner have Session Judge in appeal and hence the present revision .
2. According to prosecution case, the petitioner is a grocery shop owner , On 27.10. 1978 the Food inspector, Sundargarh, and his peon (P. W 2) visited the shop premises of the petitioner at 10,15 a. m. and after duly the serving the notice (Ex. 2 ) took a sample of the refined ground-nut oil which was exhibited for sale in his shop on payment of the price of 5.35 as per Ex. 1. the sample was then divided into three parts and put into clean and dry bottles and then the bottles were duly fitted with corks and sealed and signature of the petitioner was obtained on the paper slip each bottle One of the bottles was sent to the Public Analyst for who opened as per Ms report (Ext. 4) that the sample of refined ground nut oil Was adulterated being not in conformity with the prescribed standard. On receiving the said report, a copy thereof was sent to the petitioner with the forwarding letter (Ext. 6 ) which the petitioner received, the acknowledgement being Ext. 7. On receiving due sanction, the prosecution report was launched against the petitioner. The sanction order has been exhibited as Ext. 5.
3. The plea of the petitioner is a total denial,
4. On behalf of the prosecution only two witnesses were examined, namely, the Food Inspector {?, W. 1) and his peon (P. W. 2) and- on behalf of the defence one witness was examined. Relying on the evidence of p. ws. and 2, it has been found by both the Courts below petitioner did expose the nut oil for sale In his shop which was purchased by the Food inspector (P. W. 1) and which on analysis was found to be adulterated and, therefore, the petitioner has contravened the provisions of Section 16(1)(a)(ii) of the Act.
5. Mr. Patra, the learned counsel for the petitioner,, raises, three submissions challenging the legality of the order of conviction and sentence pass against the petitioner, namely,,
(i) The prosecution evidence is totally silent regarding sending of a copy of the report of the Analyst to the petitioner and in that view of the matter, the provision of Rule 9)(i) of the Prevention of Food Adulteration Rules, has been infringed, which vitiates the conviction ;
(ii) There has been total infraction of Sub-section (7) of Section 10 of the Act and on that score also the conviction is vitiated; and
(iii) The sanction order ex facie shows total non-application of mind of the sanctioning authority and, therefore, a valid sanction being a pre-condition for taking cognisance of the offence, the impugned conviction cannot be sustained in law.
6. Corning to the question of infraction of Rule 9(j) it appears that the said contention had not been raised before .the learned Sessions Judge in appeal though it had been raised before the trying Magistrate and was considered and rejected by him. Ext. 6 clearly indicates that the report of the Analyst was appended to the same which was sent to the petitioner. Ext. 7 is the acknowledgement of the petitioner in taken of receipt of the same. In that view of the matter, it is not open for this Court to hold that there has been infraction of Rule 9(j) and the said contention must, therefore, be rejected.
7. The next contention of Mr. Patra on the question of non- compliance of Section 10(7) of the Act also is devoid of force. Section 10(7) casts an obligation on the Food Inspector to call one or more persons to be present at the time when the Food Inspector takes sample of food from the concerned person and to take his or their signatures. But when the Food Inspector calls the neighbouring shop-keepers or house-owners to witness the taking of the sample, but none is willing to co-operate, he cannot compel their presence and in such circumstances, the prosecution is relieved of its obligation to cite independent witnesses (See, Ram Lubhaya v. Municipal Corporation of Delhi and another, AIR 1974 S C. 789). The evidence of P. W. 1, the Food Inspector indicates that near the shop premises of the petitioner, there was no other shop, but some houses were there and on being called, the owners of those houses refused to become witnesses. There has been practically no cross-examination to this assertion of the Food Inspector and in such circumstance, it cannot be held that there has been an infraction of Section 10(7) of the Act.
8. The only other submission which survives for consideration is whether the sanction in question is vitiated on account of non-application of mind of the sanctioning authority. There is no dispute that there is an embargo for taking cognisance and trial of the offence in question unless there is a written consent of the competent authority as required Under Section 20 of the Act. The sanction order of the competent authority, namely, the Chief District Medical Officer, has been exhibited as Ext. 5. On the face of it, the said order shows that the sanction for prosecution was accorded after going through the details contained in the prosecution report as well as the relevant documents submitted by the Food Inspector, Sundargarh. The sanctioning authority was satisfied and accordingly gave the written consent to prosecute the petitioner Under Section 16 of the Prevention of Food Adulteration Act. The prosecution report gave the details of the offence committed by the petitioner and appended the necessary documents including the cash-memo, the notice issued to the petitioner and the report of the Analyst which must be taken to have been sufficient for the competent authority to arrive at his satisfaction. From a perusal of the sanction order itself, it is crystal clear that the competent authority considered the reports of the Food Inspector as well as. the documents appended thereto including the report of the Public Analyst and thereafter gave the written consent as per Ext, 5. In such circumstances, in my view, it cannot be said that the sanction in question has been mechanically given or the consent is the product of non-application of the mind. It may be noted in this context that the defence did not raise the plea of non-application of mind of the sanctioning authority either before the trying Magistrate or before the learned Sessions Judge in appeal and raised it for the first time in this Court in revision. Normally, such a plea is a mixed question of law and fact and should not be allowed to be arised for the first time in revision, but Mr. Patra, the learned counsel for the petitioner, urged that he would make his submission only with reference to the order in question, i e, Ext- 5 and, therefore, I have permitted him to urge the plea in question. Even the Food Inspector in his evidence states that he prepared the prosecution report after receiving the necessary documents including the report of the Public Analyst and filed the same before the Chief District Medical Officer, who accorded the consent in writing. In the premises, it is difficult for me to accept the contention of Mr. Patra appearing for the petitioner that the Chief District Medical Officer did not apply his mind to the materials while giving the consent. The main plank of the argument of Mr. Patra is that in the sanction order (Ext 5), it has been stated to prosecute Under Section 16 of the Food Adulteration Act without indicating as to which clause of the said section is applicable. The prosecution report clearly indicates that the petitioner has committed, the offence by exhibiting and storing adulterated refined ground-nut oil for human consumption in his grocery shop and is accordingly liable for prosecution Under Section 16(1)(a)(ii) read with Section 7{1) of the Prevention of Food Adulteration Act. On the basis of the said report, the concerned authority has given the consent in writing which would mean that he agreed with the prosecution report submitted by the Food Inspector. Merely because, the specific clause of Section 16 has not been indicated in Ext. 5, the same cannot be said to be the consent in question is legally valid and there is no infirmity in the same. I would accordingly reject the submission of Mr. Patra, the learned counsel appearing for the petitioner.
9. Mr. Patra then urges that the petitioner is a very poor man, a small retailer in a remote village and, therefore, that may be taken to be a special reason for imposing a lesser sentence. There is no material in support of the contention of Mr. Patra for the petitioner, nor in my opinion that would be an adequate and special reason as contemplated under the Proviso to Section 16 which enables the Court to impose a lesser sentence. I, therefore, do not find any justification to interfere with the sentence awarded.
10. In the result, therefore, this Criminal Revision is dismissed.