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Orissa High Court
Gopinath Sahu vs State Of Orissa .... Opposite Party on 9 February, 2026
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.108 of 2004
In the matter of an application under Section 397 read
with Section 401 of Cr.P.C.
------------------
Gopinath Sahu .... Petitioner
-versus-
State of Orissa .... Opposite Party
For Petitioner : Mr. D. K. Mishra, Advocate
For Opposite Party : Mr. M. R. Mohanty, AGA
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING & JUDGMENT : 09.02.2026
V. Narasingh, J.
1. The judgment dated 25.11.2003 passed by
the learned Addl. Sessions Judge, Bhawanipatna in
Criminal Appeal No. 36/90 of 99-2003 thereby
affirming the order of conviction dated 04.09.1999
passed by the learned JMFC Bhawanipatna in 2(c)
C.C. Case No.9 of 1997(T.R. No.417 of 1999) under
Section 16(1)(a)(i)1 of the Prevention of Food
16. Penalties.--(1) Subject to the provisions of sub-section (1-A), if any person--
(a) whether by himself or by any other person on his behalf, imports into India or
manufactures for sale, or stores, sells or distributes any article of food--
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of Section
2 or misbranded within the meaning of clause (ix) of that section or the sale of which
Adulteration Act, 1954 (hereinafter referred to as Act,
1954) read with Rule-52 and para A.18.06 and
A.18.06.09 of the Appendix-B and Rule 233 and 294
of the Prevention of Food Adulteration Rules, 1955
and imposing a sentence of simple imprisonment for
six months and to pay a fine of Rs.1000/- (Rupees
One Thousand only), and in default to undergo simple
imprisonment for thirty days.
2. The Petitioner, as an accused, was prosecuted
for contravention of section 7(i)(v)5 and section 2(i-
a)(a)(m)(j)6 of the Prevention of Food Adulteration
is prohibited under any provision of this Act or any rule made thereunder or by an
order of the Food (Health) Authority;
2 5. Standards of quality of the various article of food specified in Appendices B, C & D
to these rules are as defined in those appendices
3 23. Unauthorised addition of colouring matter prohibited:- The addition of a
colouring matter to any article of food except as specifically permitted by these rules,
is prohibited
4 29. Use of permitted synthetic food colours prohibited:- Use of permitted
synthetic food colours in or upon any food other than those enumerated below is
pohibited:-
(a) Ice cream, milk lollies, frozen dessert, flavoured milk, yoghurt, ice-cream mix
powder;
(b) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies,
sweets, savouries (dal moth, mongia, phulgulab, sago papad, dal biji only)
(c) Peas, strawberries and cherries in hermatically sealed containers, preserved or
processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial,
jellies, jam, marmalade, candied crystallised or glazed fruits;
(d) Non-alcoholic carbonated and non-carbonated ready-to serve synthetic
beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit
drinks, synthetic soft drink concentrates;
(e) Custard powder;
(f) Jelly crystal and ice candy;
(g) Omitted.
(h) Flavour emulsion and flavour paste for use in carbonated or non-carbonated
beverage only under label declaration as provided in clause (13) of sub-sule (ZZZ)
of
5 7. Prohibition of manufacture, sale, etc. of certain articles of food.--No person
shall himself or by any person on his behalf manufacture for sale, or store, sell or
distribute-- (i) any adulterated food;
(ii) to (iv). xxx xxx xxx
(v) any article of food in contravention of any other provision of this Act or of any
rule made thereunder;
2. Definitions.--In this Act unless the context otherwise requires,--
(i) xxx xxx xxx
(i-a)] "adulterated"--an article of food shall be deemed to be adulterated--
Act, 1954 read with Rule-52 and para A.18.06 and
A.18.06.09 of the Appendix-B and Rule 233 and 294 of
the Prevention of Food Adulteration Rules, 1955,
having stored or sold adulterated Arhar dal for human
consumption in his grocery shop on 28.09.1996.
3. The plea of the Petitioner was one of complete
denial and false implication. To fortify its submission,
the prosecution examined two witnesses. P.W.1 is the
Food Inspector, Kalahandi, Bhawanipatna and P.W.
No.2 is the Peon in C.D.M.O Office and several
documents were exhibited and marked as. Exts. 1 to
15.
Neither oral nor documentary evidence was
adduced on behalf of the defence.
4. Heard learned counsel for the Petitioner and
learned counsel for the State.
(a) if the article sold by a vendor is not of the nature, substance or quality
demanded by the purchaser and is to his prejudice, or is not of the nature,
substance or quality which it purports or is represented to be;
(b) to (i)xxx xxx xxx
(j) if any colouring matter other than that prescribed in respect thereof is present
in the article, or if the amounts of the prescribed colouring matter which is present
in the article are not within the prescribed limits of variability;
(k) and (l)xxx xxx xxx
(m) if the quality or purity of the article falls below the prescribed standard or its
constituents are present in quantities not within the prescribed limits of variability
but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food,
has fallen below the prescribed standards or its constituents are present in
quantities not within the prescribed limits of variability, in either case, solely due
to natural causes and beyond the control of human agency, then, such article shall
not be deemed to be adulterated within the meaning of this sub-clause.
5. On an analysis of the evidence on record, the
learned Trial Court found the Petitioner guilty of
commission of an offence under Section 16(1)(a)(i)1
of the Act, 1954 and denying the prayer to extend the
benefit of Probation of Offenders Act, 1958, directed
him to undergo simple imprisonment for a term of six
months and to pay fine of Rs.1,000/- or in default to
undergo further simple imprisonment for thirty days
vide Judgment dated 04.09.1999.
Assailing the same the Petitioner preferred an
appeal bearing Criminal Appeal No.36/90 of 1999-
2003 in the Court of learned Additional Sessions
Judge, Bhawanipatna and vide judgment dated
25.11.2003 the learned Appellate Court affirmed the
order of conviction, assailing which the present
criminal revision has been preferred, as noted.
6. Learned Counsel for the Petitioner, Mr. Mishra,
at the outset submits that the appreciation of
evidence and materials by the learned Trial Court as
well as Appellate Court is ex facie perverse for which
the matter merits consideration by this Court in
exercise of its Revisional jurisdiction.
6-A. During the course of submission, learned
Counsel for the Petitioner has adverted to the
infraction of mandatory provisions as contained in
Sections 10(7)7 as well as 13(2)8 of the Act, 1954.
And, in support of his submission for infraction
of Section 13(2)8 of the Act, 1954, the learned
Counsel for the Petitioner, Mr. Mishra, relied on the
judgments of this Court in the cases of Bijaya Kumar
Ram V. State9 and Bidyadhar Jena V. State of
Orissa10.
7. Per contra, learned counsel for the State
submits that the impugned confirming judgment of
the Appellate Court is in consonance with law and
does not call for any interference.
8. The first ground of challenge was the infraction
of Section 13(2)8 of the Act, 1954, and this Court
perused the exhibits on record, more particularly
Exhibits Nos.13 to 15. Referring to the said exhibits,
10. Powers of Food Inspectors.--
(1) and (6). xxx xxx xxx
(7) Where the food inspector takes any action under clause (a) of sub-section (1), sub-
section (2), sub-section (4), or sub-section (6), he shall, [call one or more persons to
be present at the time when such action is taken and take his or their signatures].
13. Report of Public Analyst.--
(1) xxx xxx xxx
(2) On receipt of the report of the result of the analysis under sub-section (1) to the
effect that the article of food is adulterated, the Local (Health) Authority shall, after
the institution of prosecution against the person from whom the sample of the article
of food was taken and the person, if any, whose name, address and other particulars
have been disclosed under Section 14-A, forward, in such manner as may be
prescribed, a copy of the report of the result of the analysis to such person or persons,
as the case may be, informing such person or persons that if it is so desired, either or
both of them may make an application to the court within a period of ten days from
the date of receipt of the copy of the report to get the sample of the article of food
kept by the Local (Health) Authority analysed by the Central Food Laboratory.
Bijaya Kumar Ram V. State, 1989 (i) OLR 340
Bidyadhar Jena V. State of Orissa, (1990) 3 OCR 374
the learned Counsel for the Petitioner submits that
there is clear non-compliance of the provision
contained in Section 13(2)8 of the Act, 1954.
9. Such submission is refuted by the learned
Public Prosecutor.
10. To put such rival submissions in perspective, it
is apposite to extract the Exhibits. 14 and 15-letters
to the Superintendent of Post office.
11. On a bare perusal of the aforementioned
exhibits, it is clear that a report was sought for as to
whether the copy of the Public Analyst's Report has
been served on the Petitioner or not. But, curiously
enough there is no evidence on record to indicate that
such report was in fact served on the Petitioner.
Hence, there is patent infraction of the
mandatory prescription of Section 13(2)8 of the Act,
1954.
12. The learned Trial Court has not dealt with the
same and merely referred to the evidence of P.W.1
with reference to the postal receipt to hold that there
is compliance of the provisions contained in Section
13(2)8 of the Act, 1954.
The relevant finding of the learned Trial Court,
in this regard, are extracted hereunder;
"xxx xxx xxx
6. .........It is also in the evidence of P.W.1 that
the C.D.M.O., Kalahandi forwarded the
prosecution report to the Court and after
submission of the prosecution report to the
Court, the D.L.M.O. sent intimation to the
accused with the copy of the Public Analyst
report intimating him to take the chance to re-
analyse the sample in the Central Food
Laboratory.
7. The Analyst's report Ext.9 is perused. Under
Serial No.10, it is opined by the Public Analyst
that the Arhar Dal is adulterated as it contains
added colour. During cross-examination this
fact has not been disputed. During cross-
examination, the evidence of P.W.1, as a
whole, has not been assailed. The evidence of
P.W.2, who is the Peon and who accompanied
the Food Inspector to the shop of the accused,
reveals that P.W.1 visited the shop of the
accused and thereafter P.W.1 wanted Arhar Dal
as sample. He also purchased 750 grams of
Arhar Dal and the said Arhar Dal were kept in
three bottles. The evidence of this P.W.2
further reveals that P.W.1 paid Rs.21/- to the
accused who granted money receipt. The
bottles were then sealed. Thus, it is found that
the evidence of P.W.2 fully supports the
evidence of P.W.1 regarding inspection of the
grocery shop of the accused and regarding
taking of sample Arhar Dal from the shop of the
accused. Nothing was placed before this Court
to disbelieve the above evidence of P.W.1 and
P.W.2. Thus, it is now crystal clear that P.W.1
obtained sample of Arhar Dal from the shop of
the accused and that he sent it to the Public
Analyst for analysis and that the Public Analyst
opined that the alleged Arhar Dal was
adulterated.
xxx xxx xxx"
13. The learned Appellate Court has adopted a
very curious approach. In as much as, it has stated
non-service of Public Analyst's Report had not been
raised before the learned Trial Court, it cannot be
entertained.
For convenience of ready reference, the
relevant excerpt of the judgment passed by the
Appellate Court is culled out hereunder;
"xxx xxx xxx
The submission as advanced at this appellate
stage about non-serving copy of Public
Analyst's report before the accused who is the
appellant before this Court was not an
argument advanced before the learned lower
Court and as such, such an argument is not
tenable at this stage.
xxx xxx xxx"
(Emphasized)
In resorting to such approach, the
fundamental principle that the power of appreciation
of evidence of the Appellate Court is co-extensive with
that of the Trial Court has been lost sight of.
Reference in this regard can be respectfully
made to the decision of the Apex Court in the case of
Chandrappa v. State of Karnataka11, wherein the
Apex Court held thus;
"xxx xxx xxx
42........(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on exercise
of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.....
xxx xxx xxx"
The same principle has been reiterated in the
case of Hindustan Petroleum Corpn. Ltd. v.
Dilbahar Singh12, wherein it has been observed that
Chandrappa v. State of Karnataka, (2007) 4 SCC 415
Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78
an appeal is a continuation of the original proceeding
and that the power of the Appellate Court is co-
extensive with that of the Trial Court.
Relevant portion of the said Judgment is
extracted hereunder for reference;
"xxx xxx xxx
An appeal is continuation of suit or original
proceeding, as the case may be. The power of
the appellate court is coextensive with that of the
trial court. Ordinarily, appellate jurisdiction
involves rehearing on facts and law but such
jurisdiction may be limited by the statute itself
that provides for the appellate jurisdiction.
xxx xxx xxx"
14. In the light of evidence as well as materials on
record, since there is patent infraction of mandatory
prescriptions under Section 13(2)8 of the Act, 1954,
this Court need not go into the alleged violation, in
terms of Section 10(7)7 of the Act, 1954 relating to
non-examination of independent witnesses.
15. On perspicuous analysis of the evidence and
materials on record as above, perversity in
appreciation of the same being tell tale, it warrants
interference by this Court, in exercising of its
Revisional jurisdiction.
16. Accordingly, the criminal revision is allowed.
17. The conviction and consequential sentence and
imposition of fine are set aside.
18. Bail bond(s) stand cancelled and sureties are
discharged.
(V. Narasingh)
Judge
Orissa High Court, Cuttack,
Dated the 9th February, 2026/Jina
Location: High Court of Orissa
