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2001 DIGILAW 227 (GAU)

Nikhil Chandra Saha v. State of Assam

2001-08-16

RANJAN GOGOI

body2001
This revision petition is directed against the judgment and order dated 29.3.1993 passed by the learned Addl Sessions Judge, Cachar in Criminal Appeal No.8 (4) of 1992 affirming the judgment and order dated 30.10.92 passed by the learned Addl Chief Judicial Magistrate, Silchar in Case No.839c of 1991. By the aforesaid judgment and order, the conviction recorded against the petitioner under section 7/16 of the Prevention of Food Adulteration Act (PFA) 1954 (herein after called as the Act) and the sentence of rigorous imprisonment for 6 (six) months and fine of Rs. 1,000, in default to further rigorous imprisonment for one month passed by the learned trial Court has been upheld in appeal. 2. The dispute in the present proceeding before the revisional Court lies within a very short compass. The only point at issue is whether the sample of 'besan' collected from the revision petitioner pursuant to the provisions of the Act is adulterated within the meaning of section 2 (ia) of the Act. The revision petitioner in reiteration of the stand taken in the Courts below urges that no conviction under section 7/16 of the Act can be maintained on the basis of the c report of the Public Analyst. The report of the Public Analyst on the basis of which the prosecution seeks to sustain the conviction recorded by the Courts below has been exhibited in the course of the trial as Ext 10. In the aforesaid report, the Public Analyst has opined that the sample of 'besan' is adulterated. The said report also goes to disclose that the Public Analyst, upon analysis has found added powered pea to the extent of 50% (approx). 3. Mr. NM Lahiri, learned senior counsel assisted by Mr. N. Choudhury appearing on behalf of the revision petitioner has argued that 'adulterated' as defined in section 2 (ia) of the Act embraces as many as 13 different situations or meanings. Neither in the report of the Public Analyst nor in the offence report filed before the learned trial Court, there is any mention or even indication as to e how and in what manner the food item in question is alleged to be adulterated or which particular definition contained in section 2 (ia) of the Act is attracted. Neither in the report of the Public Analyst nor in the offence report filed before the learned trial Court, there is any mention or even indication as to e how and in what manner the food item in question is alleged to be adulterated or which particular definition contained in section 2 (ia) of the Act is attracted. When the statute contemplates as many as 13 different situations where a food item can be said to be adulterated, initiation of a prosecution without any indication or references to which particular clause of section 2 (ia) of the Act is attracted to the facts of the case and as to in what manner and for what reason the food item is alleged to be adulterated, would have the potential to causing enormous prejudice to the accused in the conduct of his defence. The 'adulterated' being a defined expression, it was incumbent on the procession to allege adulteration by a pin pointed reference to the manner and the reasons for which the prosecution contends the food item to be adulterated. On this short ground itself, the revision petition is capable of being allowed. 4. However, having regard to the contentions advanced by the learned counsel for the respective parties, this Court is inclined to embark upon a more detailed scrutiny of the matter. It is urged by Mr. Lahiri, learned senior counsel that a reading of the definition clause contained in section 2 (ia) of the Act would ex facie go to show that in the facts of the present case, no question of any of the h definitions contained in sub-clauses (d) to (m) of the section 2 (ia) of the Act can arise. Mr. Lahiri has taken me through the contents of the definitions contained in the aforesaid sub-clauses and having considered the same, I am inclined to agree with the learned counsel. The next point, for determination is whether the definition under sub-clause (a) (b) and (c) of section 2 (ia) of the Act can have any application to the facts of the present case. To clinch the issue, Mr. Lahiri, learned senior counsel relies on the judgment of the Andhra Pradesh High Court in the case of the Public Prosecutor vs. Nahm Subha Rao, reported in (1964) 1 Crl LJ 448. The facts of the said case are largely identical to the facts of the present case. Mr. To clinch the issue, Mr. Lahiri, learned senior counsel relies on the judgment of the Andhra Pradesh High Court in the case of the Public Prosecutor vs. Nahm Subha Rao, reported in (1964) 1 Crl LJ 448. The facts of the said case are largely identical to the facts of the present case. Mr. Lahiri has argued, which argument have not been rebutted by the learned Public Prosecutor, that in the instant case, the prosecution has not brought any evidence on record to show as to whether powdered pea is an inferior or cheaper substance than Bengal gram from which besan is made. The learned counsel has also argued that there is no evidence or material on record to show as to what manner the purchaser has been prejudicially affected and also as to how the presence of powdered pea in the besan injurious affects the nature, substance or quality of the besan. The applicability of the conditions necessary to attract the sub-clause (a), (b) and (c) of section 2 (ia) is a matter of evidence and cannot be left to be drawn by inferences, surmises or conjectures. In the absence of any evidence forthcoming, this Court is also of the opinion that the prosecution has not succeeded in showing that the food item in question 'is adulterated within the meaning of section 2 (ia) sub-clause (a), (b) and (c) of the Act. 5. In view of the foregoing discussion, I am of the considered view that this revision petition has to be allowed and the same is accordingly allowed. The impugned conviction and sentence as recorded against the accused petitioner are hereby set aside.