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Gauhati High Court · body

1999 DIGILAW 50 (GAU)

Madan Lal Sharma and Another v. State of Assam

1999-02-09

D.BISWAS

body1999
The appellants Shri Madan Lal Sharma and Shri Kedar Nath Gupta were tried for an offence under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (for short the Act). The learned Chief Judicial Magistrate, Nagaon convicted both the appellants and sentenced them to undergo RI for 6 (six) months and to pay a fine of Rs.2,000 each and in default to undergo RI for one month more. The learned Additional Sessions Judge, Nagaon vide judgment dated 2.4.93 confirmed the judgment and order of conviction and sentence in Criminal Appeal No.l (N-l) of 1992. Hence this revision has been preferred by the accused persons named above. 2. Dr. NK Choudhury, Food Inspector, Nagaon, inspected the premises of M/s Shiva Hotel and Restaurant situated at Hojai Town and in presence of PW 2 and 3, Office Peons, purchased samples of cows milk kept in the restaurant for sale from Shri Madan Lal Sharma, the Manager of the restaurant. The sample of milk purchased was divided into three parts as per provisions of the Act and the Prevention of Food Adulteration Rules, 1955 (for short the Rules). One part the samples was sent to the Public Analyst and the remaining parts were sent to the Local Health Authority in accordance with statutory requirements. The Public Analyst reported the said sample of cows milk as adulterated. Accordingly, prosecution was launched against the vendor Shri Madan Lal Sharma and the owner Shri Kedar Nath Gupta. The trial Court recorded the evidences of as many as 4 (four) witnesses on behalf of the prosecution and 2 (two) witnesses on behalf of the accused persons and, on conclusion of the trial, convicted and sentenced the accused appellants as stated above. 3. During the course of argument, the learned counsel Shri CR De along with Shri U. Bhuyan assailed the judgment of the Courts below on the following grounds: (a) The alleged adulteration was because of variation in the standard of milk and the offence being technical in nature, the Courts below ought to have taken a lenient view in imposing the sentence. (b) Non compliance of the provisions of section 10 (7) of the Act. (c) Non compliance of the provisions of Rule 9 (e). (b) Non compliance of the provisions of section 10 (7) of the Act. (c) Non compliance of the provisions of Rule 9 (e). (d) Kedar Nath Sharma, appellant No.2 not being incharge of the business ought not to have been convicted in view of the provisions incorporated in section 17 of the Act. 4. The report of the Public Analyst shows that the sample of cows milk was adulterated within the meaning of section 2 (ia) (1) of the Act as it did not conform to the standard prescribed in A.I 1.01.11. The relevant part of report, Ext 9, is quoted below: “I further certify that I have/had caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows : Milk Fat ----- 2.6% Solids not fat ----- 7.85% Added water ----- 9.0% Deficiency in milk fat ----- 18.5% Text for starch ----- Negative and am of the opinion that the sample of Milk (cows's) is adulterated.” 5. A comparison of the result of the analyst with the standard prescribed shows that there are variations in different items with added water to the extent of 9.0% approximately. The sample of milk collected therefore appears to be adulterated within the meaning of section 2 (ia) (1) of the Act. Charge was accordingly framed under section 16 read with section 7 of the Act. The provisions relating.to penalty prescribed in section 16 provides for punishment with imprisonment for a term which shall not be less than 6 months which may extend to 3 years and with fine which shall not be less than Rs.1,000/-. In view of this specific statutory provisions, there appears to be no scope for imposition of punishment less than what is provided in the Act. It was further argued that no injurious or foreign substance was found in it. But the Public Analyst has reported that there was added water to the extent of 9.0 % and, this alone is suggestive of the nature of adulteration. When adulteration of an article is committed within the meaning of section 2 (ia) (1) of the Act, no concession on the ground that the offence committed is technical in nature is permissible. This answers the first point raised by the learned counsel for the appellants. 6. When adulteration of an article is committed within the meaning of section 2 (ia) (1) of the Act, no concession on the ground that the offence committed is technical in nature is permissible. This answers the first point raised by the learned counsel for the appellants. 6. Regarding non compliance of the provisions of section 10 (7) of the Act and Rule 9 (e) of the Rules, the learned trial Court had taken into consideration the decisions of the Supreme Court in Babulal Hargovind Das vs. State of Gujrat, AIR 1971 SC 1277 and Ram Labhaya vs. Municipal Corporation of Delhi, AIR 1974 SC 789 . The learned Public Prosecutor also relied upon the decision in Shri Ram Labhaya (supra). The learned counsel for the appellants referring to the evidence on record tried to justify that the Food Inspector, PW 1 did not call independent person to witness the collection of sample and thereby violated the mandatory provisions contained in section 10 (7) of the Act. 7. It would appear from the evidence of PW 1 that he has requested the customers present in the restaurant premises to witness the collection of sample. On their refusal he also requested 2 (two) persons outside the premises, but those 2 (two) persons also declined to witness the collection of sample. Thereafter PW 1 requested PW 2, Narayan Chandra Bania and PW 3 Madan Chandra Kalita, two persons working in the office of the Local Health Authority to witness the collection, and, accordingly, in their presence he had collected the sample. Both the aforesaid peons examined as PW 2 and 3 supported PW 1 in unambiguous term. Nothing could be elicited out of them in course of their cross examination to show that there was no attempt made by PW 1 to collect independent witness. Shri Ram Shankar Choubey has been examined by the defence as DW 2 to counter the evidence of PW 1. According to him he was present in the restaurant premises, but the Food Inspector had not requested him to stand as a witness. The preponderance of evidence of DW 2 produced by the defence cannot overwhelm the evidentiary value of the statement made by PW 1 supported by PW 2 and 3. According to him he was present in the restaurant premises, but the Food Inspector had not requested him to stand as a witness. The preponderance of evidence of DW 2 produced by the defence cannot overwhelm the evidentiary value of the statement made by PW 1 supported by PW 2 and 3. Having situated thus, let us refer to the decision in Babulal Hargovind (supra) where the Supreme Court held that the trial is not vitiated on account of non compliance with the provisions of section 10 (7) of the Act. It may affect the evidentiary value of the evidence of the Food Inspector in given cases. If the Food Inspector is believed his evidence alone can be relied upon prove that the sample was collected in accordance with the law. This being the principle laid down by the Supreme Court in Babulal Hargovindas's case and having regard to the evidence of this case as discussed above, I cannot agree with the learned counsel for the appellant that the provision of section 10 (7) has not complied with. 8. In Ram Labhaya (supra) referred to by the Courts below and also relied upon by the learned Public Prosecutor, the Supreme Court held as follows: “4. We are of the opinion, particularly in view of the legislative history of section 10 (7), that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which section 10 (7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case shows that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relied of its obligation to cite independent witnesses. The facts in the instant case shows that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relied of its obligation to cite independent witnesses. In Babulal Hargovind Das vs. State of Gujrat (1971) Supp SCR 53 : AIR 1971 SC 1277 :1971 Crl LJ1975) it was held by this Court after noticing that section 10 (7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an acco mplice his evidence, alone, if believed, can sustain the convictions. The Court observed that this ought not be understood as minimising the need to comply with the salutary provision in section 10 (7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.” 9. In State of Assam vs. Sumermal Jain, (1990) 2 GLR 99 (1990 (2) GLJ 4), Dr. Saraf J. of this High Court after referring to the decisions in Ram Labhaya and Babu Lal Hargovind Das cases held that the provisions of section 10 (7) is mandatory in so far it relates to the duties of the Food Inspector to call one or more independent persons is concerned and if the Food Inspector fails to do so the Court would be careful, cautions and circumspect in dealing with the evidence of the Food Inspector. Therefore, the evidence on record that the Food Inspector endeavoured to procure independent witness is enough compliance of section 10 (7) of the Act. Failure to obtain an independent witness after such attempt will not vitiate the trial. 10. The learned counsel for the appellants also argued that the inspection note which the Food Inspector is obliged to maintain as per provisions of Rule 9 (e) of the Rules was not produced before the Court and therefore the claim by the Food Inspector that he had requested independent person to witness the collection of sample cannot be accepted as final and an adverse inference against the prosecution has to be withdrawn following the view expressed by this High Court in State of Assam vs. Radha Oil Industries, (1987) 1 GLR 134. But the evidence of PW 1 having being corroborated by evidence of PW 2 and 3 shows that the Food Inspector attempted to secure the presence of independent witness. On the face of this and the inspection note having not been called for by the accused, it cannot be said that the non-production of the same has in any manner vitiated the trial causing prejudice to the accused appellants. This requirements of provision of Rule 9 (e) have been dealt with by this High Court in Shri Jitmal Maheswari & another vs. State of Assam reported in (1993)1 GLR 397 (1993 (1) GLJ 324) and the ratio laid down by the Division Bench of this Court relying upon the decision in Rameswar Rathi & another vs. State of Assam, (1993) 1 GLR 136 (1993 (1) GLJ 369) is that the provision of section 10 (7) being directory and not mandatory, the production of inspection note to be maintained under Rule 9 (e) is dispensable when the evidence on record shows that a sincere effort was made by the Food Inspector to collect independent witness. In the instant case, as already concluded above, such effort having being undertaken, it can be safely concluded that non-production of the inspection note has not vitiated the trial in the instant case. 11. The learned counsel pleaded that the appellant Kedar Nath Gupta who was incharge of the business should not have been convicted taking into a consideration the provisions of section 17 of the Act. The learned counsel also relied upon the decision in Smti Manibai vs. State of Maharastra, AIR 1974 SC 434 . In para 5 the Supreme Court held as follows: “'Company' has been defined in section 17 to mean any body corporate and to include a firm or other association of individuals. 'Director' in relation to a firm has been defined to mean a partner in the firm. There is nothing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. 'Director' in relation to a firm has been defined to mean a partner in the firm. There is nothing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under section 17(1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop. There is no evidence to that effect on the record. In the absence of such evidence, no criminal liability for the sale of coconut oil by Pranjivan can be fastened on Manibai under the provisions of the Act.” 12. Shri Singh, learned Public Prosecutor disagreeing with the submission advanced on behalf of the appellants submitted that the instant business carried in the name and style of M/s Shiva Hotel and Restaurant is a proprietorial concern and therefore provisions of section 17 of the Act is not applicable to it. He has also referred to a decision of Calcutta High Court reported in AIR 1967 Calcutta 150 in order to justify his submission. 13. The prosecution has examined Shri Niranjan Dutta, PW 4, working as a Tax Collector in the Municipal Board of Hojai Town in order to show that Shri Kedar Nath Gupta was the proprietor of the hotel. He has exhibited the copy of the relevant entry in the Municipal Register as well as the copy of the licence as Ext 20 and 21 in support of his evidence. This documents read with the evidence of PW 4 show that it was Kedar Nath Gupta who was the proprietor of M/s Shiva Hotel and Restaurant from the month of April' 1987 to March' 1988. PW 1 deposed that accused Madanlal disclosed to him that he was working as Manager under Kedar Nath. Relying on this evidence both the Courts below came to the finding that Kedar Nath Gupta was the proprietor of the business concern and rejected his plea that he has rented out the house to the accused Madan Lal Sharma. PW 1 deposed that accused Madanlal disclosed to him that he was working as Manager under Kedar Nath. Relying on this evidence both the Courts below came to the finding that Kedar Nath Gupta was the proprietor of the business concern and rejected his plea that he has rented out the house to the accused Madan Lal Sharma. On a careful consideration of the evidence of PW 1 and DW 1,1 do not find any reason to interfere with the concurrent finding of the Courts below. Kedar Nath Gupta being the proprietor of the firm and Madan Lal Sharma being his Manager as evinced by PW 1 are liable to punishment for selling adulterated milk. It is made clear that the provision of section 17 cannot be applied in a proprietorial concern and, its affairs being managed by an employee, the relationship between the proprietor and such employee cannot be construed as an 'association of individuals' so as to treat it as a company as defined in the explanation to section 17 of the Act. In order to be an 'association of individuals', it must be shown that it is combination of individuals for a common purpose or common action which obviously does not permit the proprietor and his paid employee to be clubbed together. Therefore, the argument that Kedar Nath Gupta was not incharge of the business at the relevant time and, therefore, cannot be convicted is not acceptable in law. 14. It was pleaded by the learned counsel for the appellants that the sample was collected in 1987 and after lapse of 12 (twelve) years it would be too harsh to send the appellants to prison. In this connection the law is well settled that after the Amending Act No. 34 of 1976 the High Court cannot reduce and set aside the minimum sentence of imprisonment in the absence of any specific enabling provision. The Supreme Court in the State of UP vs. Hanif, AIR 1992 SC 1121 observed that after the Amending Act No. 34 of 76, the minimum sentence prescribed under the Act cannot be interfered with. The same principle has also been reiterated by this Court after elaborate discussion in para 21 of the judgment rendered in Jitmal Maheswari (supra). Consequently, I do not find any scope to treat the case leniently because of lapse of time. 15. The same principle has also been reiterated by this Court after elaborate discussion in para 21 of the judgment rendered in Jitmal Maheswari (supra). Consequently, I do not find any scope to treat the case leniently because of lapse of time. 15. In the result, the revision petition is dismissed. The conviction and sentence recorded against the appellants are confirmed. The appellants are directed to surrender before the Courts below to serve the sentence. Registry to send down the case record immediately.