Orissa High Court Sets Aside Conviction Of Food Seller For Not Possessing 'Food Licence' In 28 Years Old Case

Facts of the Case:

Mr. Chittaranjan Das (P.W.1), the then Food Inspector, Bolangir visited Agalpur on 26^th May 1994 along with the Food Peon Antabal Majhi (P.W. 2). He inspected the tiffin stall of the accused. He found that the accused Bhika Sahu (Petitioner No. 2) had exposed snacks items for sale for human consumption. P.W. 1 called persons from the locality to witness the inspection. One Laxmikanta Saraf (P.W.3) came to witness the inspection. Bhika Sahoo was asked to produce the food licence, but he could not do so.

After preparing a list of food articles exhibited for sale, P.W.1 put the signature of P.W. 3 thereon. Later, he verified the food license register. It was found that Petitioner No. 1 (Tengunu Sahu, son of Petitioner No. 2) had a food license which was valid up to 31^st December 1988. However, that licence had not been renewed thereafter. Since both accused were selling food articles without license, they were found to have contravened Section 7(iii)(v) of the Prevention of Food Adulteration Act, 1954 ('PFA Act') and Rule 50 of the PFA Rules.

The local Health Authority-cum-CDMO after examining the documents granted sanction for filing of the prosecution case in the Court of the JMFC. The accused denied owning any tiffin stall at Agalpur or the visit of P.Ws. 1 and 2 to their shop and claimed that the prosecution case was a false one.

The above three witnesses were examined, whereafter the JMFC was satisfied that the prosecution had proved its case and convicted the two accused for the offence under Section 16(1)(a)(ii) of the PFA Act and sentenced them to undergo rigorous imprisonment (RI) for six months and pay a fine of Rs.500/- each and in default to undergo to R.I. for one month, which was modified by reducing the term of imprisonment to three months RI without altering the fine amount.

It was argued before the appellate court that P.W. 1 in his deposition stated that when he visited the shop Petitioner No. 1 was absent and only his father Bhika was present. The appellate court brushed aside this objection by stating that the inspection took place in 1994, whereas P.W.1 deposed three years later in April 1997 and therefore, the discrepancy in his evidence was not fatal to the prosecution case.

It was further concluded by the appellate court that admittedly there was a relationship between the accused as son and father and that the licence in favour of Tengunu was valid only till 31st December, 1988. The appellate court also discussed the wording of Section 7(iii) of the PFA Act which provides that any person selling article or food for which licence is prescribed, if sells without a licence would be committing an offence which is punishable under Section 16(1)(a)(ii) of the PFA Act. It, accordingly, convicted both the petitioners.

The petitioners had approached the High Court against such conviction.

Court's Observations:

The Court noted that the Petitioner No. 2 died during the interim period. Hence, it stressed that the crucial part of the discussion is regarding the presence of Petitioner No. 1 at the time of inspection of the shop in question. The Court observed,

"If indeed Tengunu was not present, the question of his selling any food articles without a licence in the shop in question did not arise at all. Interestingly, in the subsequent period from 2nd July 1996 onwards the license for running a shop was issued in favour of another son of Bhika, viz., Indramani Sahoo."

Therefore, the Court held that the evidence was totally insufficient as far as the role and presence of Tengunu Sahoo at the shop at the time of inspection is concerned. Consequently, the Court was satisfied that no case is made out for sustaining the conviction and sentence awarded to Petitioner No. 1 by the trial court, which was also affirmed by the lower appellate court. Consequently, judgments of the JMFC and the lower appellate court were set aside.

Case Title: Tengunu Sahoo & Anr. v. State of Orissa

Case No.: CRREV No. 508 of 2000

Judgment Dated: 13 May 2022

Coram: Chief Justice Dr. S. Muralidhar

Counsel for the Petitioners: Mr. Prabhav Behera, Advocate

Counsel for the Respondent: Mr. P.K. Muduli, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 63

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