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2004 DIGILAW 379 (GAU)

Golap Chand Prasad Gupta v. State of Assam

2004-06-02

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 23.9.1996, passed by the learned Session Judge, Sonitpur, Tezpur, in Criminal Appeal No. 16(S-3)/1996, whereby the appeal dismissed upholding the judgment and order, dated 30.5.1996, passed by the learned Sub-Divisional Judicial Magistrate, Biswanath Chariali, in CR Case No. 783/1991, convicting the accused-petitioners under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (in short, "PFA Act") and sentencing each of them to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/- each and, in default of payment of fine, to undergo simple imprisonment for a further period of four months. 2. The case against the accused-petitioners, as unfolded at the trial, may, in brief, be stated as follows : On 11.7.1991, Sri Sonaram Baruah, a Food Inspector, accompanied by his office peon, Samnur Ali, visited the grocery shop of the accused-petitioners No. 1, namely, Golap Chandra Prasad Gupta, which was run under the name and style of "M/s Lakhi Store", situated at Biswanath Chariali. The accused-petitioners No. 1 above-named, though owner of the said shop, was absent, but his nephew, namely, Rajendra Prasad Gupta, who is accused-petitioner No. 2, was present at the shop and identified himself as an employee of the shop. The Food Inspector found cumin whole (Safed Jeera whole) exposed for sale at the said shop. Suspecting the quality of the said food article, so kept exhibited for sale, the Food Inspector purchased, in the presence of the said Samnur Ali, 450 grams of cumin whole from the accused-petitioner No. 2 and paid the price thereof by Exhibit-2. Before the purchase so made, the Food Inspector gave a notice in Form-VI (Ext. 1) to the accused-petitioner No. 2 for taking of the sample of cumin whole. The sample, so purchased, was divided into three equal parts of 150 grams each, same were put in three dry and clean containers and packed, sealed and labelled in accordance with the requirements of the "PFA Act" and the Prevention of Food Adulteration Rules (for short, "PFA Rules"). On part of the sample was sent to the Public Analyst for chemical examination. The report revealed that the sample did not conform to the standard and the same was unfit for consumption. On part of the sample was sent to the Public Analyst for chemical examination. The report revealed that the sample did not conform to the standard and the same was unfit for consumption. After obtaining necessary sanction for prosecution from the competent authority, the Food Inspector submitted offence report against both the accused-petitioners. 3. During trial, the accused-petitioners pleaded not guilty to the charge framed against them under Section 7 read with Section 16 of the PFA Act. In all, prosecution examined two witnesses, namely, Food Inspector, Sonaram Baruah (PW- 1), and his said office peon, Samnur Ali (PW-2). On conclusion of the trial, the learned trial Court, on finding both the accused guilty of the charges framed against them, convicted them accordingly and passed against them the sentence as hereinabove mentioned. As the appeal preferred by the accused-petitioner against their conviction and sentence also failed, they have, now approached this Court with the help of the present revision. 4. I have heard Mr. P. Barthakur, learned counsel appearing on behalf of the accused-petitioner, and Mr. PC Gayan, learned Additional Public Prosecutor, Assam. 5. Assailing the impugned judgment, Mr. Barthakur has pointed out that the trial for the offence committed under PFA Act shall, normally, be by way of summary proceeding and though the Court can hold the trial in a warrant proceeding manner, the accused must be informed of the same. It is no doubt true that in the case at hand, there is no specific order passed by the learned trial court that the trial would be held in accordance with the procedure prescribed for trails of warrant procedure cases. However, when the case instituted otherwise than on complaint, is triable by warrant procedure, the evidence is recorded before the charge and if the evidence, so recorded, shows that the same would warrant, if remains uncontroverted, conviction of the accused, the charge is framed. 6. In the present case, the learned trial Court, on appearance of the accused on 17.2.1993, while allowing the accused to go on bail, directed issuance of processes to the witnesses for recording of their evidence before charge. This order clearly shows that the accused-petitioners and their counsel were put to notice by the Court as far back as on 17.2.1993 that the procedure for trial adopted would be warrant procedure. This order clearly shows that the accused-petitioners and their counsel were put to notice by the Court as far back as on 17.2.1993 that the procedure for trial adopted would be warrant procedure. This apart, it is, for the first time, in the present revision, that the accused-petitioners have chosen to complain that the learned trial Court had not clearly stated that the procedure for trial to be followed would be warrant procedure. No prejudice could be shown to have been caused to the accused-petitioner on account of the omission so pointed out. There is, admittedly, no bar under the law for trial of the offences under the PFA Act by resorting to warrant procedure. In such a situation, the plea, now, taken by the accused-petitioners on the ground that specific mention was not made by the learned trial Court as to what procedure it would follow is of no significance. 7. Turning to the grievance of the accused-petitioner that so far as the accused-petitioner No. 2, namely, Rajendra Prasad Gupta, is concerned, he was not an employee of the said shop, his presence at the shop was merely incidental inasmuch as his uncle, the accused-petitioner No. 1, had gone for lunch at the time, when the Food Inspector had arrived at the shop and that the sample was forcibly taken from him, suffice it to mention here that this aspect of the matter has been cogently dealt with by both the learned trial Court as well as the learned appellate Court and both the Courts below reached the finding that the accused-petitioner No. 2 was present at the said shop and was the one, who had sold 450 grams of cumin whole to PW-1. While considering this aspect of the matter, it is also important to bear in mind that 'sale' is defined in Section 2(xiii) of the PFA Act, which means sale of any article of food for human consumption or use, or for analysis and includes an agreement for sale, an offer for sale, the exposing for sale or having possession for sale of any such article and also includes an attempt to sell any such article. It is, therefore, not necessary that the person from whom the Food Inspector demands the sample must be the owner of the shop. It is, therefore, not necessary that the person from whom the Food Inspector demands the sample must be the owner of the shop. The definition is wide enough to cover the case of even a servant having in his possession a food article for sale or who exposes the food article for sale on behalf of his master. In the present case, the accused-petitioner No. 2, Rajendra Prasad Gupta alias Sahu was, according to credible evidence on record, the employee of the shop, which belonged to the accused-petitioner No. 1, Golap Chand Prasad Gupta alias Sahu. It is also established by the evidence the accused-petitioner No. 2 was the in-charge of the shop during the relevant time and carrying on the activities of sale of the articles of food stored for sale in the shop and during the absence of the owner, namely, accused-petitioner No. 1, Rajendra Prasad Gupta (accused-petitioner No. 2), admittedly, sold 450 grams of cumin whole to the Food Inspector (PW-1) for the purpose of analysis and acknowledged receipt of the price thereof, which comes within the definition of 'sale' under Section 2(xiii) of the PFA Act. Situated thus, the defence taken by the accused-petitioner No. 2 that he was not running the activities of the grocery shop and happened to be accidentally present at the shop, temporarily, during the absence of his uncle, accused-petitioner No. 1, cannot be given any credence at all. 8. It is urged by Mr. Barthakur, learned counsel for the accused-petitioners, that the Food Inspector did not, at the time of obtaining the sample, make any attempt to secure attendance of independent witnesses and thereby violated the provisions of Section 10(7) of the PFA Act. This aspect of the matter too, I find, has already been considered the learned Courts below and rejected for adequate reasons. Moreover, it needs to be noted that it is in the evidence of the Food Inspector (PW-1) that he had called some nearby persons of the locality to witness the taking of sample of the food article, in question, but none of them agreed to become witness. This part of the evidence of PW- 1 receives support from the evidence of PW- 2. The evidence, so given, by these two witnesses could not be shaken by the defence. The evidence of a Food Inspector is not to be treated as the evidence of an accomplice. This part of the evidence of PW- 1 receives support from the evidence of PW- 2. The evidence, so given, by these two witnesses could not be shaken by the defence. The evidence of a Food Inspector is not to be treated as the evidence of an accomplice. The evidence of Food Inspector need not necessarily be corroborated by the evidence of independent witnesses. The evidence of Food Inspector has, however, to be tested on its own merit and if found acceptable, there is no legal impediment, on the part of the Court to rely on the same (see Babulal Hargovinda v. State of Gujarat and State of UP v. Hanif, reported in (Supreme Court). In the present case, the evidence of the Food Inspector (PW-1) and the office peon (PW- 2), as already indicated hereinabove, is cogent and convincing with regard to the factum of taking sample of cumin whole from the accused-petitioner No. 2 for the purpose of analysis thereof. 9. In view of the above, the submission of Mr. Barthakur that there was total non-compliance of the provisions of Section 10(7) of the PFA Act has not substance at all. 10. Mr. Barthakur has further submitted that the prosecution was launched against the accused-petitioners without any proper and valid sanction as required under the provisions of Section 20 of the PFA Act. The Local Health Authority, submits Mr. Barthakur, had not applied its mind to the available materials before according sanction and merely put his signature on a cyclostyled paper purported to be his written consent/sanction for prosecution of the accused-petitioners, but the learned Courts below failed to appreciate the matter and erroneously held the sanction to have been properly accorded. 11. It is, no doubt, true that the function of according sanction under Section 20 is not a mere formality. The Court must be satisfied that the authority granting sanction had actually applied its mind to the alleged commission of the offence by the accused. If it is found that the sanctioning authority merely observed the formality showing grant of sanction without satisfying itself from the materials available before it about the commission of an offence under Section 16 of the PFA Act, the sanction so accorded for the prosecution of the accused may, in an appropriate case, be held to have vitiated the trial. 12. 12. In the case at hand, however, the evidence on record reveals, as correctly noticed by the learned Courts below, that the Local Health Authority had gone through all the documents/materials placed before it by the Food Inspector and, on being satisfied that all the requisite legal formalities had been followed and that an offence under Section 16 read Section 7 of the PFA Act has been committed of the PFA Act, accorded written sanction for the prosecution of the accused-petitioners. The grievance expressed, on behalf of the accused-petitioners, that the granting of sanction in the present case was mechanical has, therefore, no substance. 13. What crystallises from the above discussions is that the findings of guilt reached by the learned Courts below against the accused-petitioners cannot be interfered with. 14. Realising the situation, Mr. Barthakur has lastly submitted that the accused-petitioner No. 1 is about 70 years of old now, the case against him has been dragging for the last about 12/13 years and, hence, the sentence of imprisonment passed against him be converted into fine. For the purpose of this submission, Mr. Barthakur has placed reliance on Hanuman Mal Jain v. State of Assam, reported in 2003 (1) GLT 617, decided on 5.9.2002. 15. I must pause here that in Hanuman Mat Jan (supra), the sentence of imprisonment was, indeed, converted into fine by this Court. However, in the case of Delhi Administration (now NCT of Delhi) v. Manoharlal the Apex Court has laid down that right to exercise the power of commutation of sentence lies with the State Government under Section 433 Cr PC and that such powers shall be exercised by the Government in accordance with the rules and established principles. Hence, Hanuman Mal Jain (supra) does not lay down the correct position of law. In its subsequent decision in Muthiram Parambath Haridas v. State of Assam, reported in decided on 30.1.2003, this Court has corrected itself by referring to the Apex Court's decision in Delhi Administration (now NCT of Delhi) v. Manoharlal (supra). 16. Hence, Hanuman Mal Jain (supra) does not lay down the correct position of law. In its subsequent decision in Muthiram Parambath Haridas v. State of Assam, reported in decided on 30.1.2003, this Court has corrected itself by referring to the Apex Court's decision in Delhi Administration (now NCT of Delhi) v. Manoharlal (supra). 16. Upon hearing the learned counsel for the parties, I am of the view that since the accused-petitioner No. 1 has been facing the ordeal of trial since the year 1993 and he is, now, shown to be 70 years old, his case may be considered by the State in accordance with the provisions of Section433 Cr PC for commutation of his sentence to fine. 17. Considering, therefore, the matter in its entirety, while upholding the conviction of both the accused-petitioners, the accused-petitioner No. 1 is hereby the liberty to make an application to the State Government in accordance with Section 433 Cr PC for considering the accused-petitioner's case for commutation of sentence to fine and in case the accused-petitioner No. 1 makes the application, as directed, the same shall be disposed of within a period of 3 months from today. If no order is passed by the State Government within the period of 3 months as directed, the accused-petitioner No. 1 shall forthwith surrender in the Court of learned Chief Judicial Magistrate, Sonitpur, Tezpur, to suffer the sentence passed against him. During this period of 3 months, the accused-petitioner No. 1 need not surrender before the learned Chief Judicial Magistrate, Sonitpur, to serve out the sentence passed against him. The accused-petitioner No. 2 shall, however, surrender in the Court of learned Chief Judicial Magistrate, Sonitpur, Tezpur, forthwith, to" serve out the sentence passed against him. 18. The revision shall accordingly stand disposed of. 19. Send back the LCRs along with a copy of this judgment and order. Also send a copy of this judgment to the State Government.