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2001 DIGILAW 231 (GAU)

Tara Chand Jain v. State of Assam

2001-08-18

RANJAN GOGOI

body2001
This revision petition is directed against the judgment and order dated 21.6.93 passed by the learned Sessions Judge, Nagaon in Criminal Appeal No. 29 (N3) of 1990 upholding the conviction and sentence passed by the learned Chief Judicial Magistrate, Nagaon in CR Case No. 3442/1982. By the aforementioned judgment & and order the accused-petitioner has been convicted under section 7/16 of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for six (6) months and to pay a fine of Rs. 1,000, in default, to undergo further rigorous imprisonment of for three (3) months. 2. The case of the prosecution, in short is that on 12.1.82, PW 1 the Food Inspector, Nagaon visited the grocery shop of one Anil Paul situated at Rabindra Nath Thakur Road of Hojai. At that time the accused-petitioner was present in the shop. The Food Inspector after issuing notice in Form VI to the accused petitioner, purchased 375 grams of mustard oil. It is the case of the prosecution that in compliance with the requirements under the Act and Rules the sample was divided into three parts and one portion of the sample was sent to the Public Analyst. On receipt of the sample was adulterated, requisite sanction was obtained from the Local Health Authority and an offence report was filed in the Court of the Chief Judicial Magistrate, Nagaon on the basis of which the instant prosecution commenced. In the course of the trial of the case, the prosecution examined two witnesses and exhibited various documents. At the conclusion of the trial the learned Chief ^ Judicial Magistrate convicted and sentenced the accused-petitioner as aforesaid. The appeal before the learned Sessions Judge, Nagaon against the aforesaid conviction having been dismissed the present revision application has been filed. 3.1 have heard Mr. JM Choudhury, learned senior counsel for the petitioner and Mr. D. Das, learned Public Prosecutor appearing for the State. 4. Mr. Choudhury, learned senior counsel for the accused-petitioner in a short and precise argument has assailed the correctness of the judgment of the learned Sessions Judge on the ground that the mandatory provision of section 10 (7) of the Act have not been complied with in the instant case. D. Das, learned Public Prosecutor appearing for the State. 4. Mr. Choudhury, learned senior counsel for the accused-petitioner in a short and precise argument has assailed the correctness of the judgment of the learned Sessions Judge on the ground that the mandatory provision of section 10 (7) of the Act have not been complied with in the instant case. According to the learned counsel notwithstanding the oral evidence of PWs 1 and 2 to the effect that PW 1 (Food Inspector) had made an attempt to secure the presence of independent witnesses and as no such witnesses were forthcoming, PW 2 was examined in the case as the said evidence was recorded several years after the alleged incident of taking of sample, the same could not have reasonably formed the basis for the requisite satisfaction of the Courts below that section 10 (7) of the Act had been complied with. In support Mr. Choudhury relies on the decision of this Court in the case of State of Assam vs. M/s Radha Oil Industries & another reported in (1987) 1 GLR 134. Placing the aforesaid decision Mr. Choudhury contends that this Court held that a presumption regarding maintenance of diary and record in accordance with the provision of Rule 9 (e) of the Rules by the Food Inspector may be drawn by the Court. According to the learned counsel, non-production of the inspection notes required to be maintained under -Rule 9 (e), on the ratio of the aforesaid decision/ should be understood by the Court to mean that the said record if produced would not have supported the case of the prosecution. Accordingly relying on the decision rendered by this Court in Radha Oil Industries case (supra), learned counsel argues that in the instant case the inspection records not having been produced, the learned Courts below ought to have drawn an adverse inference against the prosecution and in conjunction with the highly unsatisfactory oral evidence on record, ought to have came to the conclusion that the mandate under section 10.(7) has not been complied with by the Food Inspector. In his characteristic fairness, Mr. Choudhury has however placed before the Court a subsequent decision of this Court in Jitmal Maheswari vs. State of Assam reported in (1993) 1 GLR 397 (1993 (1) GLJ 324). In his characteristic fairness, Mr. Choudhury has however placed before the Court a subsequent decision of this Court in Jitmal Maheswari vs. State of Assam reported in (1993) 1 GLR 397 (1993 (1) GLJ 324). In the aforesaid decision this Court had the occasion to consider the earlier judgment in the case of Radha Oil Industries case (supra). In Jitmal Maheswari case (supra) this Court took the view that it is settled law that Rule 9 (e) is not mandatory. This Court is of the further view that it is not a rule of general application that in all cases where the inspection notes are not produced by the prosecution an adverse inference must be drawn. This Court understood the decision in Radha Oil Industries case (supra) to be a decision rendered in the facts of that case. This Court further held that the inspection notes are to be produced by the prosecution either on its own or on being called for by the Court. However, this Court clearly took the view that if the inspection note are not produced by the prosecution either its own accord or in terms of orders passed to that effect by the Court, the case has to be considered on the basis of the available evidence and materials on record. Mr. Choudhury, learned senior counsel for the petitioner has urged that the ratio of law laid down by this Court in the case of Radha Oil Industries (supra) has not been disturbed by the subsequent decision in Jitmal Maheswari (supra) and therefore in the facts of the present case the failure of the prosecution to prove the inspection notes should give rise to an inference against the prosecution. 5.1 have considered the submission advanced by Mr. Choudhury and the decision rendered by this Court in Radha Oil Industries and Jitmal Maheswari. In Jitmal Maheswari a Division Bench of this Court had examined the observations of the Single Judge in Radha Oil Industries (supra) and has held that the said observation must be understood in the context of the facts of that case. The Division Bench in the said case was of the considered view that the observation of the learned Single Judge in Radha Oil Industries case (supra) cannot be understood to have laid down a law of universal application. The Division Bench in the said case was of the considered view that the observation of the learned Single Judge in Radha Oil Industries case (supra) cannot be understood to have laid down a law of universal application. The Division Bench was of the view that in case the inspection notes are not produced no fatality can be attached to the prosecution case which has to be judged on the basis of the available evidence and materials on record. 6. In the instant case PW 1 in his oral testimony has stated that he had made an attempt to procure the presence of the independent witnesses but no independent witness having consented to come. PW 2 a peon in the office of the local health authority was examined as a witness to the taking of sample and the sealing of the same. In the instant case the accused did not apply to the Court to require the Food Inspector to produce the record maintained under Rule 9 (e). In the cross examination of the aforesaid two witnesses the defence has not been able to bring out anything effecting the credibility of the said two prosecution witnesses. Both the Courts below having considered it safe and sufficient to arrive at the conclusion that the requirement of section 10 (7) of the Act have been complied with and the Courts below not having found it necessary to issue any direction to the Food Inspector to produce the inspection notes, it will be incorrect for the revisional Court to take a contrary view of the matter in the absence of any evidence to dislodge the findings of fact recorded by the Courts below. This Court therefore does not find any ground to interfere with the judgment of conviction recorded by the Courts below as also the sentenced awarded. 7. Mr. Choudhury, learned senior counsel has lastly urged that keeping in mind that the offence had occurred in the year 1982 and almost two decades have lapsed, this Court even on a finding that the conviction ought to be maintained, may, having regard to the totality of the facts of the case after the sentence imposed to one of fine only. In the absence of any such enabling power in the Act, I am unable to persuade myself to accept the argument advanced. In the absence of any such enabling power in the Act, I am unable to persuade myself to accept the argument advanced. In view of the foregoing discussion there is no merit in the revision application. The same therefore would stand dismissed.