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2004 DIGILAW 139 (GAU)

Azmal Hussain Ahmed v. State of Assam

2004-02-25

AFTAB H.SAIKIA

body2004
JUDGMENT A.H. Saikia, J. 1. Heard Mr. H.R.A. Choudhury, learned Counsel for the Petitioner and also heard F.H. Laskar, learned Public Prosecutor, Assam. 2. The Petitioner has challenged his conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short "the Act") and sentence to undergo rigorous imprisonment for one year and also to pay fine of Rs. 4,000/- in default to undergo for another rigorous imprisonment for two months imposed by the learned Chief Judicial Magistrate, Cachar, Silchar vide judgment and order dated 8.8.2001 in C.R. No. 1003/98 being affirmed vide impugned judgment and order dated 5.4.2003 by learned Additional Session Judge, Cachar, Silchar in Crl. Appeal No. 6(3)/2001, dismissing the appeal preferred by the Petitioner. 3. The brief facts of the prosecution case are that one S. Dutta, Food Inspector (Senior), Silchar lodged a complaint against the Petitioner, the owner of M/s. S.A. Enterprise, Silchar alleging inter-alia that on 28.1.98 while he visited the premises of the aforesaid shop, he found 10 Kgs. of turmeric powder and 12 Kgs. of chili powder stored in a container for sale and on suspicion, the said officer collected the samples of the said turmeric and chili powder in presence of the Petitioner who was present at the time of such inspection conducting the business of the shop, after observing all necessary formalities under the provision of the Act as well as Rules framed thereunder. The samples of turmeric and chili power were sent to the Public Analyst, Assam who after such analysis sent a report opining that the sample of turmeric and chili powder were adulterated. Thereafter, obtaining a proper sanction, a prosecution was launched against the Petitioner under the aforesaid sections. 4. As many as two witnesses were examined by the prosecution while defence adduced none. Petitioner was examined under Section 313 Code of Criminal Procedure and he pleaded not guilty. 5. After due appreciation of the factual position on record including the documents so exhibited, the learned Chief Judicial Magistrate, Cachar, Silchar convicted and sentenced the Petitioner as indicated above which was later on affirmed by the learned Additional Sessions Judge, Cachar, Silchar dismissing the appeal. 6. Only point raised in this revision petition by Mr. 5. After due appreciation of the factual position on record including the documents so exhibited, the learned Chief Judicial Magistrate, Cachar, Silchar convicted and sentenced the Petitioner as indicated above which was later on affirmed by the learned Additional Sessions Judge, Cachar, Silchar dismissing the appeal. 6. Only point raised in this revision petition by Mr. Choudhury, leamed counsel for the Petitioner is that the courts below ignored to accept cash memo (Exhibit-X) as the warranty in order to give benefit to the Petitioner in terms of Section 19(2) of the Act. According to him, the cash memo (Exhibit-X) clearly goes to show that the Petitioner has purchased the above articles in question on 23.1.98 from M/s. Sarma Agency situated at Fancy Bazar, Guwahati on due payment for which the said cash memo was issued in his favour. 7. I have carefully perused the impugned judgments of the Courts below and also scanned the Exhibits especially the Exhibit-X. The learned Additional Sessions Judge in dealing with the said Exhibits observed that the cash memo was not produced immediately after his appearance by the accused and the cash memo did not show that M/s. Sarma Agency was a whole-seller, dealer or manufacturer or distributor and consequently it was held that the cash memo i.e. Exhibit-X was not a valid warranty. 8. The Court in case of Nirmal Poddar v. State of Assam reported in 2003 (3) GLT 455 in paragraph 8 held that "a cash memo in respect of the sale of any article of food given by a manufacturer, distributor or dealer to a vendor shall also be deemed to be a warranty given by such manufacturer, distributor or dealer and it is not necessary that such manufacturer, distributor or dealer must be a licensed one". 9. In the instant case it appears that the Petitioner, a petty businessman from Silchar, had duly purchased the above articles in question from the M/s. Sarma Agency, Fancy bazar, Guwahati which may be easily accepted as a wholesale dealer and accordingly on the basis of this cash memo the Petitioner is, in view of this Court entitled to get the benefit of Section 19(2) of the Act. 10. Consequently his conviction and sentence as indicated in the instant case is liable to be quashed. It is ordered accordingly. It is stated that the Petitioner is on bail. 10. Consequently his conviction and sentence as indicated in the instant case is liable to be quashed. It is ordered accordingly. It is stated that the Petitioner is on bail. Hence his bail bond shall stand discharged. 11. For the foregoing reasons, discussion and observation, this revision petition succeeds and accordingly stands disposed of. Petition allowed.