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2004 DIGILAW 73 (GAU)

Dilip Das v. State of Assam

2004-02-04

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. On 22.5.90, the Food Inspector, Jonai collected sample of turmeric powder from the shop of M/s. Das Biscuit Kumsung, situated at Jonai Bazar and on analysis of the sample of turmeric powder it was found to be adulterated, as there was added rice powder to the extent of 25%. After obtaining necessary sanction, the accused Dilip Das and Babul Das, the two partners of the said firm were tried by the learned S.D.J.M., Jonai in C.R. 48/90. On conclusion of the trial, the learned trial Magistrate convicted the two accused persons under Section 7 read with Section 16(1) of the Prevention of Food Adulteration Act, for short the Act and sentenced them to imprisonment for six months and to pay a fine of Rs. 1000/- each, in default to further imprisonment for two months. The convicts preferred Criminal Appeal No. 33(4)/92 and the appellate Court set aside the order of conviction and sentence in respect of Babul Das but maintained the order of conviction and sentence against the present Petitioner as he was a vendor. 2. In this case, we find that taking of the sample from the Petitioner is not in dispute. The Petitioner had examined himself as D.W. 1 and he has admitted that the sample of turmeric powder was collected from him by the Food Inspector. The Petitioner came up with the plea that the turmeric powder was not meant for sale and it was meant for colouring the 'dhoti' of his father who used to wear coloured dhoti. In this case we find that there was altogether 7/8 K.Gs. of turmeric powder in the shop and the trial Court as well as the appellate Court, therefore, rejected the defence plea Moreover, the law is well settled that sale to Food Inspector for analysis amounts to sale as defined under Clause (13) of Section 2 of the Act. 3. Learned Counsel for the Petitioner has also alleged non-compliance of the provisions of Section 10(7) of the Act. Both the Courts below have recorded the concurrent finding regarding the compliance of the above provisions of law and there is evidence of the Food Inspector that he had requested the purchasers, present in the shop to witness the sample collection and one Jogen Pegu had witnessed the taking of the sample along with the Peon accompanied. Both the Courts below have recorded the concurrent finding regarding the compliance of the above provisions of law and there is evidence of the Food Inspector that he had requested the purchasers, present in the shop to witness the sample collection and one Jogen Pegu had witnessed the taking of the sample along with the Peon accompanied. In view of the above, we hold that there is no violation of Section 10(7) of the Act. 4. Learned Counsel has also submitted that in this case the provision of Section 13(2) of the Act has not been complied with. We have perused the evidence on record and find that the Food Inspector has categorically deposed that notice, Material Ext. 10, was served on the accused Petitioner Dilip Das personally and he has received the copy by putting his signature in acknowledgment. The evidence of Food Inspector was not challenged on that count. Learned Counsel has placed reliance on a decision of the Apex Court, reported in 2003 Crl. Law Journal 3077 but in view of the evidence on record and Material Ext. 10, we hold that there was no violation of the provisions of Section13(2) of the Act. 5. The Petitioner has also challenged the order of sanction Ext. 8 given by the Sub-Divisional Medical and Health Officer, Jonai. The sanction has been challenged in view of the evidence of P.W. 3, the Food Inspector who in his cross examination has stated that Ext. 7, the letter of sanction, was written by him. Ext. 7 is the request for sanction and it is not the letter of sanction. The letter of sanction is Ext. 8 only, wherein the sanctioning authority have stated about the application of its mind to the facts of the case before according sanction under Section 20 of the Act. 6. On perusal of the Exts. we find that the sanctioning authority had examined all the relevant documents submitted by the Food Inspector and also the report of the Public Analyst. In the case of State of Orissa v. K. Rajeswar Rai 1 (1992) ccr 269 (SC) , the Apex Court has held: Sanctioning authority is to consider the materials placed before it whether the offence of adulteration off food was committed and punishable under the Act. Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid. 7. Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid. 7. The provision of Food Adulteration Act is meant for serving public interest and health of the citizen. When it is shown that the sample was collected from the accused and it was found to be adulterated, the sanctioning authority has no discretion to let off the culprit by refusing to accord sanction unless there are technical or legal defect in launching the prosecution. Although this is not a case where even the dictation of letter of sanction or draft by the sanctioning authority is not a must (A.K. Ghosh v. State of Assam 1983, Gau hcs 16 ) 8. On perusal of the records, the materials and evidence, we find that the prosecution has been able to establish the charge and hence the conviction of the Petitioner needs no interference. The next submission of the learned Counsel is in respect of sentence. It is submitted that the sample was collected in the year 1990 and long 14 years have passed and the Petitioner has suffered both mentally and financially and as such the sentence of imprisonment maybe substituted. 9. In the case of N. Sukumaran Nair v. Food Inspector Mavelikara (1997) 9 SCC 101 the Apex Court held as follows: 3 The offence took place in the year 1984. The Appellant has been awarded six months' simple imprisonment and has also been ordered to pay a fine of Rs. 1000. Under Clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We therefore, direct the Appellant to deposit in the trial court a sum of Rs. 6000 as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under Clause (d) of Section 433 of the Code of Criminal Procedure. 10. The decision of N. Sukumaran Nair (supra) was reiterated in the case of Santosh Kumar v. Municipal Corporation (2000) 9 SCC 151 . On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under Clause (d) of Section 433 of the Code of Criminal Procedure. 10. The decision of N. Sukumaran Nair (supra) was reiterated in the case of Santosh Kumar v. Municipal Corporation (2000) 9 SCC 151 . Section 433 Code of Criminal Procedure reads as follows: 433. Power to commute sentence- The appropriate Government may, without the consent of the person sentence commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine; (d) a sentence of simple imprisonment, for fine. 11. From the above we find that the power to commute lies with the appropriate government. The sentence imposed on the Petitioner is the minimum sentence provided under the law and as such in view of the above provisions; we provide that the Petitioner will be at liberty to approach the appropriate government for relief, if any, in the above matter. The execution of sentence be kept in abeyance for a period of three months to enable the Petitioner to approach the Govt. under Section433 Code of Criminal Procedure. 12. The revision petition stands dismissed as above. 13. Send down the records to the S.D.J.M., Jonai. Petition dismissed.