When consent for prosecution under food adulteration Act is not valid?

The aforesaid order of according consent shows that the competent authority arrived at a satisfaction regarding the fact that a prima facie case against the respondent for selling adulterated Mustard Oil for human consumption. But in doing so, no such documents have been hinted at giving rise to said satisfaction save and except in a bald manner. Even it is not indicated therein that the competent authority had perused any specific document most importantly the report of the Public Analyst in sitting to decide the matter of according written consent as provided in Section 20 of the Act nor the list of any such documents have been appended to the said written consent-Ext. 10 at the foot. It has been repeatedly held by this Court in a number of cases that the matter of according written consent for launching a prosecution under the Act is not an empty formality and it is not be accorded mechanically. 

IN THE HIGH COURT OF ORISSA

Government Appeal No. 14 of 1997

Decided On: 30.10.2014

Appellants: State of Orissa
Vs.
Respondent: Jayasena Sabata

Hon'ble Judges/Coram:D. Dash, J.

Citation;2015 CRLJ(NOC)172 orissa

1. The State has called in question the judgment of acquittal dated 17.09.1996 passed by the learned J.M.F.C., Kasipurat Rayagada acquitting the respondent of the charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (in short hereinafter referred to as "the Act") in 2(c) CC No. 12 of 1994 (TR No. 210 of 1994).

2. The short case of the prosecution is that the respondent was running a grocery shop in village Tikiri under the jurisdiction of Tikiri Police Station in the district of Rayagada. On 30.03.1993 about 11.30 A.M., the Food Inspector (P.W. 1) had been to the said shop. Finding the respondent to have exhibited food articles like Edible Oil, Dal, Maida, Suji etc. for sale for human consumption, he expressed his intention to collect the samples of Mustard Oil, Harad Dal and Maida as he suspected those to be adulterated. So issuing notice in Form-VI (Ext. 1), he purchased 375 grams of Mustard Oil, 750 grams of Harad Dal and 600 grams of Maida on payment of price thereof and divided each' item of food into three parts; put them in empty, clean, and dry bottles duly corked, wrapped, labelled and lastly sealed. Each part of the sample from each of the item of the food article were then sent to the Public Analyst for analysis under separate memorandums containing the specimen impression of the seal used for the purpose of sealing the sample bottles and also those memorandums were separately sent. Reports were then received from the Public Analyst about the adulteration of Mustard Oil when other two food items were found to be confirming to the standard prescribed in the rules in relevant Appendix. So, the matter was placed before the Chief District Medical Officer, Rayagada and necessary written consent being accorded by him, finally the prosecution came to be launched.

3. The defence took the plea of denial.

From the side of the prosecution, the Food Inspector, his peon and one Inspector of Vigilance have been examined as P.Ws. 1, 2 and 3 respectively when the respondent has examined none.

4. The trial Court having considered the points raised by the learned defence counsel in the touch stone of the evidence on record and other circumstances has finally recorded the order of acquittal only on the ground that the written consent in the present case is vitiated being not proper as the same has been accorded mechanically without due application of mind. At the same time, the contentions raised by the learned defence counsel with regard to delayed lodging of prosecution; non-compliance of provision of Rule 18 as well as Rule 7(1) of the rules and the provision of Section 10(7) of the Act have been repelled.

5. Learned counsel for the State submits that the written consent in the present case as required in Section 20 of the Act has been in order and the finding of the trial Court that it has been mechanically given is untenable. According to him, when the evidence of P.W. 1 is there that he has placed before the C.D.M.O., Rayagada, who is the competent authority to grant written consent, all the documents along with the prosecution report, the trial Court erred in law by taking a view to the contrary. Therefore, he urges that the ground on which the acquittal of the respondent is based is not sustainable and, thus, according to him this is a fit case for interference with the order of acquittal.

6. Learned counsel for the respondent, on the other hand, supports the finding of the trial Court that the written consent-Ext. 10, which is the sine qua non for launching the prosecution is not in order, which has been rightly so held by the trial Court. Therefore, according to him, the trial Court has rightly held the prosecution as vitiated in finally recording the acquittal.

7. On such rival submission, for proper appreciation, it is necessary first of all to have a reading at Ext. 10 the written consent. It reads as under:

"In exercise of the powers vested on me under notification No. 19687/H, dated 10.05.1994 after perusing the prosecution report, documents placed before me I. Dr., N.C. Sahu, Chief District Medical Officer, Rayagada am satisfied that there is prima facie case appearing for prosecution against (i) Sri Jayasen Sabat, son of Sri Khaili Sabat, At/P.O./Tikiri, P.S. Tikiri, Dist, Rayagada and (ii) M/s. Srilaxmi Store, At/P.O./Tikiri, P.S. Tikiri, Dist-Rayagada for selling adulterated "Mustard Oil" for human consumption vide public Analyst Report No. 320/93 dated 5.5.1993 under Section 16(1)(A)(i) read with Section 7(i) and (v) of the Prevention of Food Adulteration Act, 1954 as amended up to date and the rules there under and hence I hereby consented to institute the prosecution against them under Sub-Section (I) of Section 20 of the Prevention of Food Adulteration Act, 1954.
Sd/-
Chief District Medical Officer,
Rayagada"

The aforesaid order of according consent shows that the competent authority arrived at a satisfaction regarding the fact that a prima facie case against the respondent for selling adulterated Mustard Oil for human consumption. But in doing so, no such documents have been hinted at giving rise to said satisfaction save and except in a bald manner. Even it is not indicated therein that the competent authority had perused any specific document most importantly the report of the Public Analyst in sitting to decide the matter of according written consent as provided in Section 20 of the Act nor the list of any such documents have been appended to the said written consent-Ext. 10 at the foot. It has been repeatedly held by this Court in a number of cases that the matter of according written consent for launching a prosecution under the Act is not an empty formality and it is not be accorded mechanically. The followings are few of those which may be referred to for the purpose, i.e., Mahammad Yakub Khan v. State of Orissa, 1992 (5) OCR 54; Prabhudayal Agarwala v. State of Orissa; MANU/OR/0137/1993 : (1993) 6 OCR 706, Sudeep Ku. Dutta v. State of Orissa MANU/OR/0116/1994 : 1994 (I) OLR 109 : (1994) 7 OCR 831, and Amal Ku. Pratrhari v. State of Orissa MANU/OR/0124/1994 : 1994 (I) OLR 441 : (1994) 7 OCR 354. In those cases for the said deficiencies the prosecution has failed.

8. In view of the above, the ground on which the trial Court has based the order of acquittal is not found to be unsustainable. Therefore, the order of acquittal impugned in this appeal is not liable to be interfered with.

9. The Appeal, thus, merits no acceptance and the same stands dismissed.

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