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1999 DIGILAW 141 (CAL)

Md. Nabijan v. State

1999-04-01

DEBIPRASAD SENGUPTA

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JUDGMENT This revisional application is against an order dated 17.11.97 passed by the learned Sessions Judge, 11th Bench of City Sessions Court, Calcutta in Criminal Appeal No. 1 of 1992 thereby dismissing the appeal and affirming the order of conviction and sentence dated 17.12.91 passed by the learned Senior Municipal Magistrate in Case No. 70D of 1981 convicting the accused-petitioner under Section 16 (1)(a)(1) of the Prevention of Food Adulteration Act read with Section 7 of the said Act and sentencing him to suffer R. 1 for 6 months and to pay a fine of Rs. 1,000/- in default to suffer R. 1 for one month more. 2. The prosecution case in brief is that on 5th May, 1981 at about 1.30 p.m., the Food Inspector (P.W.2) inspected the Eating House situated at 1A, Rajmohan Street, Calcutta owned by the accused Nabijan as the proprietor. In course of inspection the Food Inspector found one Md. Ismail who described himself as the person-in-charge of the business place. The Food Inspector inspected the kitchen and found there about 500 grams of Lanka Powder and suspecting the lame to be adulterated the Food Inspector obtained a sample of Lanka Powder weighing about 450 grams from the accused Md. Ismail. A part of the sample was sent to the Public Analyst for examination and report. The Public Analyst vide his report dated 30th May, 1981 opined the said sample to be adulterated. 3. It appears from record that the case against Md. Ismail abated due to his expiry. 4. To prove its case against the accused petitioner herein the prosecution has examined only two witnesses. P.W.1 is Kalyan Kumar Banerjee, an Assistant attached to the D.H.O. (II) of the C.M.C, who proved three documents, viz., Exts. 1, 2 and 3, P.W.2 is the concerned Food Inspector. On conclusion of trial the learned Magistrate found the accused guilty and convicted him under Section 16 (1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced him to suffer R 1 for 6 months and to pay a fine of Rs. 1,000/- in default to suffer R.1 for one month more. 5. Against the judgment and order of conviction passed by the learned Magistrate the accused preferred an appeal in the Court of the learned Sessions Judge, the 11th Beach, City Sessions Court, Calcutta being Criminal Appeal No. 1 of 1992. 1,000/- in default to suffer R.1 for one month more. 5. Against the judgment and order of conviction passed by the learned Magistrate the accused preferred an appeal in the Court of the learned Sessions Judge, the 11th Beach, City Sessions Court, Calcutta being Criminal Appeal No. 1 of 1992. It appears from the order of the learned Sessions Judge that the learned Judge dismissed the appeal in absence of the parties. The learned Judge dismissed the appeal without going into the merits of the case and without going into the evidence-on-record. 6. I have carefully gone through the judgment of the trial Court. Admitted position is none of the sample witnesses has been examined by the prosecution to prove its case. I also find that the provision of Section 13 (2) of the P.F.A. Act has not been complied with. It appears that the copy of the report of the Public Analyst was not supplied to the accused Md. Nabijan as required under Section 13 (2) of the Act. Consequently, he could not get his own sample examined by the Central Laboratory. It is a valuable right given to the accused. Rules also provide that such report is to be supplied within a certain period. I am of the opinion that serious prejudice has been caused to the accused because of non-supply of the Public Analyst’s Report as required under Section 13 (2) of the Act. According to prosecution a copy of the report of the Public Analyst was sent to accused Md. Ismail (since deceased) but the same has returned with an endorsement "Left". It has been stated earlier that the case against accused Md. Ismail was abated due to his expiry. There is nothing on record to show that the copy of report of the Public Analyst was ever sent to the present petitioner Md. Nabijan. 7. In my opinion, the accused petitioner Md. Nabijan had suffered serious prejudice because of non-supply of the copy of report of the Public Analyst, which is a clear violation of the provision of Section 13(2) of the Prevention of Food Adulteration Act. Apart from this, it also appears from record that none of the sample witness and/or seizure witness had been examined in this case and the prosecution also has not come forward with any explanation for withholding such an important witness. 8. Apart from this, it also appears from record that none of the sample witness and/or seizure witness had been examined in this case and the prosecution also has not come forward with any explanation for withholding such an important witness. 8. In the instant case, it cannot be said that the 500 grams Lanka Powder (chilli powder), which was kept in the kitchen of the eating house, was stored for sale. It is not the prosecution case that what was sold to the Food Inspector for the purpose of sample was a finished food product. I am, therefore, of the opinion that as the chilli powder (500 grams only) was not stored in the kitchen for sale the Food Inspector was not empowered to take sample of the said chilli powder. Section 10 of the Preventions of Food Adulteration Act does not give a blanket power to the Food Inspector to take sample of an article of food from a person who is not covered by any of the sub-clause 1(a) or sub-section (2) of Section 10 of the Act. 9. In the instant case, the 500 grams of chilli powder which was kept in the kitchen was not stored for sale by the accused and it is not the case of the prosecution that finished product of feed sold to the customers did contain this adulterated chilli powder. By no stretch of imagination it can be said that 500 grams of chilli powder was kept in the kitchen of a hotel was stated for the purpose of sale, "store" in Section 7 of the Act means "storing for sale" and consequently storing of an article for purpose other than for sale would not constitute an offence under Section 16(1)(a) of the Act. On this point, I rely on a judgment reported in (1) 1981 FAJ page 299. In that judgment, it was held by a Division Bench of Bombay High Court that chilli powder stored in the kitchen was not stored for sale by the accused and to the Food Inspector was not empowered to take sample of the said stock and the acquittal of the accused in such a case was proper. While deciding the said case, the Division Bench of Bombay High Court relied on a judgment of the Apex Court reported in (2) 1976 FAJ (SC) 295. 10. While deciding the said case, the Division Bench of Bombay High Court relied on a judgment of the Apex Court reported in (2) 1976 FAJ (SC) 295. 10. From the order of the appellate Court below it appears that the learned Judge dismissed the appeal without going into the merits of the case in absence of both the parties prosecution as well as the defence. In my opinion, this is not the proper way of an disposing of an appeal. It has been decided in number of cases by the Hon'ble Apex Court that the appellate Court must dispose of the appeal on merits and it is not proper to dismiss an appeal for default of appearance of the appellant. Since this is an old case of 1981 and considering the fact that the accused has suffered mental agony during the period of last 18 years, I think it will not be wise to send it again to the lower appellate Court for rehearing the appeal. In my option, this is a fit case which warrants interference by this Court. Accordingly, I allow this revisional application and set aside the order of conviction and sentence passed by the learned Magistrate as affirmed on appeal by the learned Sessions Judge, 11th Bench of City, Sessions Court in Criminal Appeal No. 1 of 1992. The accused-petitioner be acquitted of the charge accordingly.