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2005 DIGILAW 119 (GAU)

Mahabir Prasad Agarwal v. State of Assam

2005-02-10

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This revision is directed against the judgment and order dated 16.9.97 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 11(3)/95, by which the learned Sessions Judge dismissed the appeal and affirmed the order of conviction and sentence passed by the learned trial Court. 2. On 4.1.88, the Food Inspector collected sample of Chilly Powder from the premises of M/s. Vinod Flour Mills, Tinsukia, when the vendor, the Petitioner, Mahabir Prasad Agarwal was present. On analysis, the Public Analyst found the sample to be adulterated and, thereafter, the Petitioner was tried by the learned Chief Judicial Magistrate, Tinsukia, in C.R. 237/88. The learned trial Court convicted the Petitioner, as the owner of the said Mill, under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, for short 'the Act' and sentenced him with imprisonment for 6 (six) months and to pay a fine of Rs.1000/-, in default to further imprisonment for 3 (three) months. 3. Feeling aggrieved, the Petitioner preferred Criminal Appeal No. 11(3)/95 before the learned Sessions Judge, Tinsukia, who, vide the impugned judgment, dated 16.9.97, dismissed the appeal and upheld the order of conviction and sentence. Hence, the present revision. 4. We have heard the learned Counsel for both sides and perused the records. In the present case the report of the Public Analyst has not been challenged as much and we find, on perusal of Ext. 11, that the Chilly powder contained powdered pulse to the extent of 5% and as such the sample was adulterated. The first submission made by the learned Counsel is regarding alleged violation to the provision of Rule 9(e). It is submitted that the Food Inspector did not produce the records of inspection and, as such, there was a violation of Rule 9(e) of the Prevention of Food Adulteration Rules and the Petitioner is entitled to acquittal. Learned Counsel has placed reliance on a decision of this Court in the case of State of Assam v. Radha Oil Industries, 1987 (1) GLR 134, wherein it was held that where the Food Inspector fails to perform his statutory duty enjoined by Rule 9(e) of the Rules, an adverse inference must be drawn against the witnesses for non-performance of the statutory obligations. It was therefore submitted that compliance of Rule 9(e) of the Rules was mandatory. 5. It was therefore submitted that compliance of Rule 9(e) of the Rules was mandatory. 5. The question raised by the learned Counsel in this case was raised before the Division Bench of this Court in the case of Jitmal Maheswari v. State of Assam, 1993 (1) GLR 397 and this Court on analysis of the earlier decisions held: The decision in M/s. Radha Oil Industries case, (1987) 1 GLR 134 is not an authority for the proposition that in all cases involving failure of Food Inspector to maintain the record, or that in all cases involving failure to produce the record in court, adverse inference can be drawn. Whether adverse inference can be drawn depends on the facts and circumstances of each case and the nature and quality of the evidence of the Food Inspector and the other evidence in the case. In M/s. Radha Oil Industries Case (1987) 1 GLR 134, the evidence of the Food Inspector was of a very poor quality, as a reading of paragraph 5 of the reported decision will show. Pawan Kumar Agarwalla's case(1991) 2 GLR 118, did not indicate that the record has to be produced in all cases; if any, it indicated that it has to be produced 'whenever necessary'. Who is the authority to decide when such production is necessary? Obviously, it is the court which has to decide whether production of the record is necessary in a given case. This is the principle that was indicated by the Andhara Pradesh High Court in Thatha Rao's case. AIR 1968 AP 17 . This was not contradicted by the Delhi High Court in Puran Chand's case 1972 FAC 326. It is quite open to the accused to suggest to the Court by way of an application to require the Food Inspector to produce the record for the purpose of cross examination of the Food Inspector. It is also open to the Food Inspector to produce it of his own accord. Either on the application of the accused or otherwise, it is open to the court in a given case to require the Food Inspector to produce his record, if it is found necessary. If it is produced and proved, it has evidentiary value as a contemporaneous document prepared by the Food Inspector and can be used for corroboration or contradiction. Either on the application of the accused or otherwise, it is open to the court in a given case to require the Food Inspector to produce his record, if it is found necessary. If it is produced and proved, it has evidentiary value as a contemporaneous document prepared by the Food Inspector and can be used for corroboration or contradiction. If inspite of the direction of the court the Food Inspector fails to produce the record but offers an explanation for such non-production, the court is bound to consider the explanation. If the explanation is found unacceptable, the circumstances of non-production has to be considered along with the evidence and circumstances of the case before concluding whether the evidence can be acted upon or not. We do not understand the decision in Pawan Kumar Agarwall's case, (1992) 2 GLR 118, as laying down anything different than what we have no indicated. The decision in M/s. Radha Oil Industries case, (1987) 1 GLR 134, cannot be understood as laying down a principle of law of general or invariable application and must be confined to the facts of that case. 6. On perusal of the evidence on record and the statement of the accused Petitioner wherein the collection of sample as such is admitted, we find no force in the submission that for the alleged violation of Rule 9(e) of the Rule, the prosecution must fail. 7. Learned Counsel for the Petitioner has also alleged violation of Clause 10(7) of the Act by stating inter alia that no independent witnesses were called for by the Food Inspector. The point raised was considered by the trial Court as well as the appellate Court and both the Courts below rejected the submission in view of the evidence on record and the as laid down by this Court in State of Assam v. Sumermal Jain, 1990 Gauhati High Court Cases 322, wherein the earlier decision of the Apex Court in the case of Ram Labhaiya v. Municipal Corporation, Delhi AIR 1974 SC 789 was relied on. In view of the foregoing discussion and the admission of the accused that sample was collected by the Food Inspector, we hold that there was no violation of Clause 10(7) of the Act. 8. In view of the above, we find no merit in the revision and the revision petition is accordingly dismissed. 9. In view of the foregoing discussion and the admission of the accused that sample was collected by the Food Inspector, we hold that there was no violation of Clause 10(7) of the Act. 8. In view of the above, we find no merit in the revision and the revision petition is accordingly dismissed. 9. At this stage the learned Counsel for the Petitioner has prayed for commutation of sentence. It is submitted that the sample was collected in the year 1988 and long 16 years have passed and the Petitioner has suffered both mentally and financially and as such the sentence of imprisonment may be substituted. 10. 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 month's 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. 11. 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 sentenced, 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. 12. 12. 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 Section 433 Code of Criminal Procedure. 13. The revision petition stands dismissed as above. 14. Send down the records to the Chief judicial Magistrate, Tinsukia. Petition dismissed.