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Gauhati High Court · body

2000 DIGILAW 188 (GAU)

Prafulla Kumar Ghosh v. State of Assam

2000-05-23

M.L.SINGHAL

body2000
This is a criminal revision preferred under section 397/401 CrPC stemming out of the judgment and order dated 15.12.90 passed by the Sessions Judge; Kamrup in Criminal Appeal No. 4 (K2) of 90 confirming the conviction of the a revisionist Prafulla Kumar Ghosh recorded by the learned CJM, Kamrup under section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short, the PF Act) sentencing the revisionist to RI for 6 months and a fine of Rs.1,000, in default of payment of fine, 2 months further RI. 2. I have heard Mr. DK Bhattacharyya, learned counsel for the revisionist. Also heard Mrs K.Deka, learned Public Prosecutor, Assam for the State. 3. On 2.9.86 at about 12 AM, Sri TK Barman, PW 1, Food Inspector, Kamrup visited the Mango Icecream Factory, Paltan Bazar, Guwahati owned by the revisionist and inspected the stock of the ice candy. The Food Inspector collected the sample of the said ice candy weighing 900 grams and after performing the necessary formalities, sent the sample to the Public Analyst, Assam. The Public Analyst in his report dated 20.9.86 found the sample to be artificially sweetened. On the request of the accused-revisionist, another sample was sent to the Director, Central Food Laboratory under section 13 of the .PF Act, who also concurred with the analysis of the Public Analyst, Assam. A complaint was filed and the accused was put on trial who pleaded not guilty and claimed to be tried. On evidence, the learned CJM found the accused guilty under section16 of the PF Act, in appeal, learned Sessions Judge has confirmed the conviction. 4. The first argument advanced by the learned counsel for the revisionist is that the Food Inspector took the sample while the ice candy was in the process of manufacturing which is prohibited by sub-sections (1) and (2) of section 10 of the PF Act. The learned counsel for the revisionist relied upon the decision of the Supreme Court rendered in Municipal Corporation vs. Laxmi Narayan Tandon, AIR 1976 SC 621 . It is necessary to produce sub-sections (1) and (2) of section 10 of the PF Act in order to appreciate the contention advanced by the learned counsel for the revisionist. The extracts of the aforesaid section run as follows: “10. It is necessary to produce sub-sections (1) and (2) of section 10 of the PF Act in order to appreciate the contention advanced by the learned counsel for the revisionist. The extracts of the aforesaid section run as follows: “10. Powers of Food Inspectors - (1) A Food Inspector shall have power - (a) to take samples of any article of food from - (i) any person selling such article; . (ii) any person who is in the course of conveying, delivering or preparing to deliver such articles to a purchaser or consignee; (iii) a consignee after delivery of any such article to him; and (b) to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken; (c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. Explanation - For the purposes of sub-clause (iii) of clauses (a) 'consignee' doe's not include a person who purchases or receives any article of food for his own consumption. . (2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept and take samples of such article of food or adulterant for analysis: Provided that no sample or any article of food being primary food, shall be taken under this sub-section if it is not intended for sale as such food.” The aforesaid provisions clearly show that the Food Inspector has the power to take sample of any article of food from a person selling such article, from a person who is in the course of conveying, delivering or preparing to deliver such articles to a purchaser or consignee; from a consignee after delivery of any such article. The Food Inspector may also enter and inspect any place where any article of food is manufactured or stored for sale, for the manufacture of any other article of food for sale or exposed or exhibited for sale or where any adulterant is manufactured or kept and take samples of such articles of food or adulterant for analysis. 5. In view of the provisions of sub-section (2) of section 10 of the PF Act reproduced above, it is clear that a Food Inspector is fully empowered to enter the premises/factory where the article of food is manufactured or stored for sale and may also take sample from there. Form VI through which the sample was taken clearly shows that the ice candy had been kept by the accused in the cold , chamber of the factory and the ice candy had been kept for sale. The recitals in the said form No.VI state "sample of 'ice candy' (900 gm) from the cold chamber of the factory containing 40 KG approx kept for sale for human consumption". It may also be mentioned that no such plea that the sample was taken from the manufacturing process was taken by the accused before the learned trial Court or the appellate Court nor any such question was put to the Food Inspector Tarini Kanta Barman, PW 1 during his cross-examination. So, the argument advanced by the learned counsel for the accused has no substance and is hereby rejected as not tenable. 6. Another argument advanced by the learned counsel for the accused is the non-compliance of the provisions of section 10 (7) of the PF Act. The said section 10 (7) provides that where the Food Inspector takes sample, he shall call J one or more persons to be present at the time when such action is taken and take his or their signatures. In the instant case, the Food Inspector Tarini Kanta Barman, PW 1 and Shri Dimb'eswar Narah, PW 2, a peon in the raiding party, have stated that the search was made for witnesses, but the witnesses declined to become witnesses on the sample. In the instant case, the Food Inspector Tarini Kanta Barman, PW 1 and Shri Dimb'eswar Narah, PW 2, a peon in the raiding party, have stated that the search was made for witnesses, but the witnesses declined to become witnesses on the sample. In Ram Labhaya vs. Municipal Corporation of Delhi's case reported in AIR 1974 SC 789 relied upon by the learned counsel for the accused, the Supreme Court has held that though the provisions of section 10 (7) are mandatory but when the evidence of Food Inspector shows that he did make attempt to call the' neighbouring witnesses to witness the taking of the sample, but none was willing to co-operate, the Food Inspector cannot compel their presence and the prosecution is relieved of its obligation under the provision calling independent witnesses, not vitiating the trial. The Food Inspector is not in the position of an accomplice and as such conviction on his testimony is sustainable. The Court further observed, that this ought not to be understood as minimising the need to comply with the salutary provisions in section 10 (7) of the PF Act which has been enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector. The learned counsel for the accused also relied upon the decision of State of Punjab vs. Roman Kumar reported in (1998) Crl LJ 737 and argued that as held by a Full Bench of the Punjab & Haryana High Court mere statement of the Food Inspector that he called independent witnesses is not sufficient. There must be some further evidence, to corroborate his testimony, may be in the form of the record of inspection in his diary maintained by him under Rule 9 (e) of the PF Rules, 1955. In the instant case the Food Inspector admitted in his cross examination that he had maintained a diary which depicts that he called independent witnesses, the same has not been produced by the prosecution, and as such the Court may draw adverse inference that the Food Inspector did not make any such attempt to call the independent witnesses. If the prosecution did not produce the diary maintained by the Food Inspector, the accused could have summoned the diary of the Food Inspector. If the prosecution did not produce the diary maintained by the Food Inspector, the accused could have summoned the diary of the Food Inspector. Furthermore, it may be observed that in the instant case apart from the testimony of the Food Inspector there is the evidence of one peon corroborating the testimony of the Food Inspector that the latter called independent witnesses. There is no reason for discarding the statement of the Food Inspector Tarini Kanta Barman, PW 1 and Dimbeswar Narah, PW 2. It may also be observed that the requirement of calling independent witnesses under section 10 (7) of the PF Act may be invoked in those cases where the taking of sample is disputed in the case. In the instant case, the accused at no sage of the trial disputed the taking of sample of ice candy from his factory on the alleged date and time. Both the trial Court and the appellate Court, therefore, rightly rejected the contention of the accused with regard to the non-compliance of the provisions of section 10 (7) of the PF Act. 7. Another infirmity argued by the learned counsel for the accused is the non compliance of the provisions of Rule 4 (3) of the PF Rules, 1955, which requires that while sending the sample to the Public Analyst, the memorandum prepared and the specimen impression of the seal used to seal the container shall also be sent separately by registered post. Such plea has not been raised by the accused neither before the trial Court nor before the appellate Court, further, the Food Inspector Tarini Kanta Barman, PW 1 has deposed that he sent the memorandum and the specimen seal separately as required by the aforesaid provisions. The report of the-Public Analyst further shows that in the office of the Public Analyst, the memorandum and the seal were received separately. 8. .No other point was argued. 9. In the result, the revision has no force. Both the trial Court and the appellate Court rightly convicted the accused under section 7/16 of the PE Act. 10. Accordingly, the revision is dismissed. Let the records be sent to the lower Court, Learned Chief Judicial Magistrate shall issue the warrant for arrest of the accused-revisionist to serve, out the imprisonment.