AMAL KUMAR PRATHIHARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Criminal Revision is directed against the order of conviction and sentence passed by the Sub - Divisional Judicial Magistrate, Panposh in 3 (a)CC No. 19/90 against the present petitioner for the alleged offence Under Section 16(1)(a)(i) of the Prevention of Pood Adulteration Act sentencing him to undergo R.I. for one year and to pay a fine of Rs. 1,000/ -; in default of payment of fine to undergo R.I. for two months. The said order has been confirmed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No. 36/39 of 1992 of order dated 28 -11 -1992.

(2.) THE case of the prosecution briefly 9tated is that at about 11.00 A. M. on 31 -8 -1989, the Food Inspector, Rourkela inspected the shop of the petitioner situated in Ispat market, Rourkela suspecting that mustard oil kept in the shop in tins was adulterated when the petitioner was present in the shop. The Pood Inspector having served the notice on the petitioner expressed his intention to take sample therefrom for examination by the Public Analyst. According to the prosecution, the Food Inspector had purchased 375 grams of mustard oil from each of the tins, one of which was open and the other two being sealed and were of Engine brand and Agmark respectively. The samples collected were divided into three equal parts and kept in clean dry empty bottles. Each bottle was packed, sealed, labelled properly out of which one was sent to the Public Analyst for examination and on obtaining the report from the Public Analyst that the material was adulterated, prosecution report was filed. The witnesses examined for the prosecution were the Food Inspector and a peon attached to his office who were examined as PWs 1 and 2. The defence case was that both the tins were sealed and as the present petitioner failed to satisfy the illegal demand of the Food Inspector, the case has been falsely started against him. According to the defence case, the present petitioner was covered by the protection afforded Under Section 19 of the Prevention of Food Adulteration Act as he had purchased the articles as per cash memo from the distributor and in support of his plea had examined DWs 3 and 4 and exhibited Exts A and B which were the cash memos. Sub -section (2) of Section 19 reads as follows : ' A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves ; (a) that he purchased the article of good - (i) in a case where the licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form and (b) that the article of food while in his possession was properly stored and that he sold it in the same State as he purchased it.' According to the learned counsel for the petitioner in terms of Sub -section (3) of Section 19, the petitioner had examined DWs 3 and 5 as aforesaid and the evidence were recorded showing that the petitioner had purchased four tins of mustard oil under the credit memo Ext. A from DW 3 which is a firm dealing with the wholesale selling of mustard oil and DW 5 had stated that on 19 -8 -1990 he had sold 10 sealed tins of one K. G. mustard oil (Ag mark) to the petitioner and granted the receipt vide Ext. 8.