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2003 DIGILAW 506 (GAU)

Bhairam Parik v. State of Assam

2003-11-13

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. This petition Under Section 397/401 of the Cr.P.C. is directed, against the judgment and order dated 18.11.2001 passed by the learned Sessions Judge, Golaghat in Criminal Appeal No. 49/2001 dismissing the appeal and upholding the conviction and sentence imposed by the learned Chief Judicial Magistrate, Golaghat in C.R. case No. 7/1997. The petitioners had been convicted Under Section7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 3000/- each, in default, S.I. for another two months. 2. I have heard Mr. G.N Sahewalla, learned senior counsel assisted by Mr. D. Senapati, Advocate for the petitioners and Mr. Singh, learned Public Prosecutor, Assam. 3. The bare facts leading to the prosecution of the petitioners may be set out at the outset. On 12.5.1997, the District Food Inspector, Golaghat visited the shop named and styled as "Ganpatrai Indrachand" and on inspecting the food articles kept in the shop and being suspicious about the quality of turmeric powder displayed for sale, notified the petitioner No. 1 Shri Bhai Ram Parik of his intention to collect the sample thereof for analysis. The petitioner No. 1, according to the prosecution represented himself to be the Manager of the firm and the petitioner No. 2 the owner thereof. The Food Inspector being unable to get hold of any official witness, eventually collected the sample in presence of the peon Shri Kiron Ch. Das who had accompanied him on the round. A quantity of 600 gms turmeric powder was collected and divided into three equal parts. The samples were put in three clean and dry polythene bags which were thereafter packed and sealed. One part of the sample was, thereafter sent to the Public Analyst who returned an opinion that the sample was adulterated. After completion of necessary formalities pertaining to the launching of prosecution, a complaint was filed in the court of the learned Chief Judicial Magistrate, Golaghat. A notice was also issued to the petitioners Under Section 13(2) of the Act informing them about the findings of the Public Analyst and also about their right to get the sample analysed by the Central Food Laboratory. A notice was also issued to the petitioners Under Section 13(2) of the Act informing them about the findings of the Public Analyst and also about their right to get the sample analysed by the Central Food Laboratory. On the prayer of the petitioner No. 2, the second part of the sample was sent to the central Food Laboratory which also opined the sample to be adulterated, but on different considerations. The trial was conducted against the petitioners in course of which, the Food Inspector and the Peon were examined in support of the prosecution as PW 1 and PW 2. On completion of the trial, the petitioners were convicted and sentenced as above. In appeal, the petitioners being unsuccessful, they are before this court. 4. Mr. Sahewella has advanced three-fold arguments. Firstly, the Food Inspector in collection the sample of turmeric powder had contravened the mandatory requirements of Rule 14 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'Rules') inasmuch as admittedly, the samples were not taken in clean and dry bottles or jars or in any other suitable containers as required. According to the learned senior counsel it is in evidence that the samples were taken in polythene bags and there is no material on record to establish that the bags were dry and clean at the relevant time. Secondly, the prosecution has failed to establish that a bona fide attempt was made by the Food Inspector to arrange for one or more non-official persons as witnesses to the collection of the sample and instead PW 1 mechanically cited his peon for the purpose, which is in contravention of Section 10(7) of the Act thus vitiating the whole exercise. Thirdly, the Food Inspector failed to comply with the requirements of Rule 9(e) of the Rules to maintain a record of all inspections and the actions taken by him in connection therewith and on an alleged statement of the petitioner No. 1 roped the petitioner No. 2 in the case showing him to be the owner of the firm. Further, in absence of any mention in the Inspection report, Ext.9, that the sample was collected in dry and clean polythene bags, the prosecution on the basis of the Public Analyst's Report/Report of the Central Food Laboratory with regard to the sample cannot be sustained in law as well as on facts. Mr. Further, in absence of any mention in the Inspection report, Ext.9, that the sample was collected in dry and clean polythene bags, the prosecution on the basis of the Public Analyst's Report/Report of the Central Food Laboratory with regard to the sample cannot be sustained in law as well as on facts. Mr. Sahewalla, in the above background has contended that the learned Courts below have not only misread the evidence on record, but also have recorded the conviction and sentence against the petitioners without any reference to the provisions of the Act and the Rules mentioned hereinabove and therefore, the impugned judgment and order is liable to be interfered with by this Court. In support of his contentions, Mr. Sahewalla has placed reliance on the following authorities :- (i) AIR 1975 SC 789 Ram Labhaya, Appellant v. Municipal Corporation of Delhi and Anr., Respondents; (ii) 1988(1) GLT 47 Radhesdhyam Agarwalla, Petitioner v. State of Assam; (iii) (1990) 2 GLR 404 Shri Shew Chandar Mathur and Anr., petitioner v. The state of Assam and Anr.; (iv) (1992) 1 GLR 62 State of Assam, petitioner v. Jagat Singh, Opposite party. 5. Mr. Singh, in reply has submitted that though there was some lapse on the part of the Food Inspector in collecting the sample, in view of the reports of the Public Analyst and the Central Food Laboratory as well as the other materials on record, it can be held that the prosecution has been able to prove the charge beyond reasonable doubt and therefore, the impugned judgment and order is legal and valid. 6. It would be appropriate to deal with the third contention of Mr. Sahewalla at the outset. 7. Section 11 of the Act lays down the procedure to be followed by the Food Inspector while taking a sample of food for analysis. It required inter alia that if the Food Inspector takes such a sample, he shall give a notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person if any, whose name, address and other particulars have been disclosed by the vendor as is envisaged Under Section 14-A of the Act. 8. Rule 9 of the Rules prescribes the duties of the Food Inspector. 8. Rule 9 of the Rules prescribes the duties of the Food Inspector. It provides inter alia in Clause (e) thereof that the Food Inspector is to maintain a record of all inspections made and actions taken by him in the performance of his duties, including the taking of samples and the seizure of stocks etc. Under Rule 12C it has been made obligatory on the part of the vendor of an article of food to disclose the name and address of the Director or the Manager as the case may be of the firm to the purchaser who informs the vendor of his intention of purchasing such article from him for analysis. 9. On a reading of the above provisions of the Act and the Rules, it is evidently clear that once the Food Inspector entertains an intention of collecting a sample of food for analysis and proceeds to do so, he has to make necessary enquiries and ascertain from the person concerned in the shop as to who is/are the owner(s) thereof or incharge of the business. It is for this purpose that the Rules require maintenance of a record of all inspections and actions taken by the Food Inspector in such matter. In the case in hand, a bare perusal of the inspection report Ext.9, would indicate that neither it refers to the name of the owner of the firm, nor it sets out the manner in which the sample of the turmeric powder was collected, packed and sealed. It is in evidence, as has been pointed out by Mr. Sahewalla that the basis on which the petitioner No. 2 was implicated in the offence is the purported statement made by the petitioner No. 1, Manager of the concerned firm that the petitioner No. 2 is the owner thereof. In course of the statement recorded Under Section 313 Cr.P.C, the petitioner No. 1, however, stated that he informed the Food Inspector that he was the Manager of the shop and four brothers of Sampat Lal, the petitioner No. 2, were the owners thereof. In course of the statement recorded Under Section 313 Cr.P.C, the petitioner No. 1, however, stated that he informed the Food Inspector that he was the Manager of the shop and four brothers of Sampat Lal, the petitioner No. 2, were the owners thereof. Admittedly, the Food Inspector did not check any other contemporaneous records to satisfy that the petitioner No. 2 was the owner of the shop : PW 1, the Food Inspector in his cross-examination candidly admitted that he involved the petitioner No. 2 only on the statement made by the petitioner No. 1 and that the latter did not produce any document in support thereof. He, further admitted that he did not make any inquiry as well, to ascertain who was the owner of the shop. 9A. Having regard to the requirements contained in the above provisions of the Act and the Rules and the adverse consequences that would follow, once the prosecution is launched against a person as the owner of the shop in a proceeding under the Act, there cannot be two opinions that a statutory duty is cast on the Food Inspector to make necessary inquiries to be satisfied as to who are the owners of the offending shop and/or incharge of the business thereof. Any omission on the part of the Food Inspector in that regard would be a lapse of such duty. 10. Having regard to the state of law and the materials on record, I am inclined to agree with the learned senior counsel for the petitioners that Food Inspector: PW1 had failed to discharge his duties as required of him by the aforementioned Act and the Rules in implicating the petitioner No. 2. The duty cast on the Food Inspector as above is for ensuring that no person who is not associated with the business of the shop or firm in question is unnecessarily prosecuted and harassed. In the case in hand, considering the materials on record, it is not possible to hold that the petitioner No. 2 is the owner of the shop from which PW 1 had collected the sample of turmeric powder. The prosecution against the petitioner No. 2 thus cannot be sustained. Consequent thereof, the conviction against the petitioner No. 2 cannot be sustained. 11. The prosecution against the petitioner No. 2 thus cannot be sustained. Consequent thereof, the conviction against the petitioner No. 2 cannot be sustained. 11. It is no longer res integra, in view of the several decisions of the Apex Court as well of this Court that the Food Inspector has to make a sincere effort of arranging one or more persons at the site as witness(es) to the exercise of collection of sample under the Act. Though it may not be possible and practicable to secure such witnesses always, what is necessary is that the Food Inspector must exhaust all bona fide means to cite impartial and disinterested witnesses at the time of collection of sample. The evidence of PW 1 and PW 2 in this regard is vague and unconvincing. Admittedly, no non-official witness was cited in support of collection of the sample. PW 2, the Peon who accompanied the Food Inspector was examined as a witness. The evidence of these two witnesses does not inspire confidence to hold that any attempt was made by the Food Inspector to secure the presence of any impartial and disinterested witness at the time of collection of the sample. In view of the preponderant judicial opinion as contained in Ram Labhaya (supra) and State of Assam v. Jagat Singh (supra) to the effect that any omission on the part of the Food Inspector to take appropriate steps to secure a person to be a witness well in advance of the taking of sample would vitiate the trial, I am inclined, having regard to the materials on record, to uphold the contention of the learned senior counsel for the petitioners in this regard. 12. The language of Rule 14 is no uncertain terms makes it obligatory on the part of the Food Inspector to ensure that the container in which the sample of food is collected for analysis is clean and dry so as to prevent contamination of the sample due to moisture and other foreign substances. By this, an assurance has been provided by the Legislature against negligent and indifferent approach in the matter of collection of sample on the basis of which, if the same is found to be adulterated, a prosecution would be warranted. It has been time and again held by this court that the requirements of Rule 14 are mandatory and any violation thereof would vitiate the trial. It has been time and again held by this court that the requirements of Rule 14 are mandatory and any violation thereof would vitiate the trial. This court in Radheshyam Agarwalla (supra) and Shri Shew Chandar Mathur (supra) underlined the above legal proposition. It would be appropriate at this stage to notice the findings of the Public Analyst as well as that of the Central Food Laboratory on the analysis of the sample. "PUBLIC ANALYST'S REPORT TURMERIC POWDER Physical: Light yellow in colour. Moisture: 9.14% Total Ash : 7.24% (By weight) Ash insoluble in dil. Hcl: 0.70% (" ") Test for lead chromate : Negative. Total Starch : 47.69% (by weight) Added powder Rice : 8.0% (approx.) Added powdered wheat: 2.0% (approx.)" "CENTRAL FOOD LABORATORY ANALYTICAL DATA: 1. Total ash content: 7.79% 2. Ash insoluble in Hcl: 1.46 3. Moisture content: 10.15 % 4. Starch content: 46.94% 5. Test for oil soluble coaltar colour : Negative 6. Test for water soluble coaltar colour : Negative. 7. Test for chromate : Positive 8. Lead content (AAS) : 26 ppm. 9. Microscopical examination : Characteristic of Turmeric Starch. OPINION : The sample does not conform to the standard of Turmeric Powder laid down in item No. A.05 20.01 of PFA Rules (1955) in that sample shows presence of lead Chromate. The sample is thus adultered." 13. It would appear from the above two reports that while the Public Analyst's report disclosed that the sample did not contain lead chromate', the sample sent to the Central Food Laboratory tested positive in the same and it was opined that the sample showed presence of 'Lead chromate'. Whereas the Public Analyst report, indicated that the sample was adulterated due to the presence of added powdered rice and added powdered wheat no such matter was found in the sample analysed by the Central Food Laboratory. It is, thus clear that the findings of two authorities are in variation on materials particulars. 14. Be that as it may, as referred to above, the evidence of the prosecution witnesses shows that there is no cogent and clinching materials to conclude that the polythene bag in which the samples were taken were dry and clean. According to PW 1, the bags were new and therefore he opined that those were clean. 14. Be that as it may, as referred to above, the evidence of the prosecution witnesses shows that there is no cogent and clinching materials to conclude that the polythene bag in which the samples were taken were dry and clean. According to PW 1, the bags were new and therefore he opined that those were clean. It is in the evidence that the sample of turmeric power was first placed on a piece of paper and there from was transferred to the polythene bags. The evidence that the paper on which the turmeric powder was initially placed was clean is also wanting. Considering the peremptory language used in Rule 14, it was obligatory on the part of the prosecution to adduce better evidence to prove that the polythene bags in which the samples were collected were dry and clean. The prosecution has failed to discharge title said burden. In view of the conflicting reports, on the samples with regard to the presence of 'lead Chromate' and the deficiency in the evidence on the aspect of cleanliness of the polythene bags, I am of the view that the benefit of doubt, in the facts and circumstances has to be counted in favour of the accused. 15. It is no doubt true that the allegation against the petitioners is very serious, but that by itself cannot relieve the prosecution of its burden to prove the same beyond reasonable doubt. The facts and circumstances of the case disclose, serious lapse on the part of the prosecution in complying with the mandatory requirements of the Act and the Rules vitiating the trial. 16. I have gone through the impugned judgment. It appears therefrom that the learned appellate court did not address itself to the above aspect of law and facts and therefore, the findings and conclusions recorded by the learned appellate court cannot be sustained. 17. In the result, the revision petition is allowed. The impugned judgment and order therefore is set aside. The petitioners are set at liberty forthwith. The bail bonds stand discharged. Petition allowed