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2005 DIGILAW 229 (GAU)

Sanwarmal Agarwal v. State of Assam

2005-03-17

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K. Agarwal, learned Counsel for the Petitioner and the learned Public Prosecutor for the Respondents. 2. This revision is directed against the judgment, dated 20.1.2000 passed by the Sessions Judge, Tinsukia in Criminal Appeal No. 11(3)/98. 3. On 22.10.86 the Food Inspector collected sample of chilly powder from the shop premises of the Petitioner accused Sanwarmal Agarwal and on analysis the public analyst found the sample of chilly powder to be adulterated as the sample contained ash contents, crude fibre and common salt to the extent of 20.47%. The total ash as per the parameter laid down in A.05.05.01 of Appendix B of the PF Rules provides that the total ash contents should not be more than 8% by weight whereas in the present case it was found to be 25.95%. Further the common salt was to the extent of 20.47%. The public Analyst therefore, opined that the chilly powder is adulterated. The report of the public analyst has not been challenged by the Petitioner. The Petitioner was tried by the Chief Judicial Magistrate, Tinsukia in CR 1962/86 and he was convicted under Section 16(1)(a) read with Section 7of the Prevention of Food Adulteration Act and sentenced to imprisonment for six months and to pay a fine of Rs.3000/- in default to further imprisonment for three months. 4. Feeling aggrieved, the Petitioner preferred Criminal Appeal No. 11 (3)/98 and vide impugned judgment the learned appellate court affirmed the order of conviction and sentence but reduced the fine from Rs.3000/- to Rs.1000/- in default to payment further simple imprisonment for one month and hence the present revision. 5. The first submission of the learned Counsel for the Petitioner is that the Petitioner was not the vendor in this case as the Petitioner is Sanwarmal Agarwal son of Bhanwarlal Agarwal but the accused vendor was Sanwarmal Agarwal son of Babulal Agarwal. 6. There is evidence that it was the accused Petitioner Sanwarlal Agarwal who had sold the sample to the Food Inspector and received the consideration vide Ext. 1 and 2 and Ext. 1/1 and 2/1 are his signatures. On the prayer of the accused person the disputed documents with signatures were sent to the handwriting expert but we find that the opinion of the handwriting expert was never brought on record and as such both the courts below rightly did not consider the same. 1 and 2 and Ext. 1/1 and 2/1 are his signatures. On the prayer of the accused person the disputed documents with signatures were sent to the handwriting expert but we find that the opinion of the handwriting expert was never brought on record and as such both the courts below rightly did not consider the same. It is submitted by the learned Counsel that the handwriting expert also could not give any definite opinion about the same. In support of the plea raised by him the Petitioner examined himself and three other witnesses. We have also perused their evidence and find that the evidence of other witnesses is of negative nature. D.W. 1, D.W. 3 and D.W. 4 have deposed that the accused person has a cloth shop at Tinsukia. The evidence of these witnesses is immaterial, as besides the shop dealing in spices the accused may be having Anr. shop dealing in cloths etc. The accused Petitioner has also examined himself as D.W. 2 and he denied his signatures on the documents. The plea raised by the Petitioner was considered by the trial court and the trial court held: It is apparent from the evidence of P.W. 1 as well as the offence report that the name and identity of the accused was disclosed by the accused himself at the time of sampling. Obviously his father's name was disclosed by the accused himself. The accused has been identified by P.W. 1 and P.W. 2. There is nothing to show that the P.W. 1 and P.W. 2 had any enmity or grudge against the present accused to implicate him falsely in the case. Accused has adduced evidence of three witnesses and examined himself. Some documents has been exhibited. It appears from the evidence of defence witnesses as well as documents exhibited in the case by the defence that the father's name of the accused may be Bhanwarlal Agarwal and he has cloth business also. But it is not proved that he had no connection with the spices business. As discussed earlier, the accused has been identified by the witnesses, he never filed any application that he was wrongly summoned, he appeared in the court and claimed that will contest the case and only after framing of the charge this story was concocted that he was not the vendor. As discussed earlier, the accused has been identified by the witnesses, he never filed any application that he was wrongly summoned, he appeared in the court and claimed that will contest the case and only after framing of the charge this story was concocted that he was not the vendor. Thus from the aforesaid discussion, I find and hold that the plea of the accused that he had no connection with the business is after thought and concocted. 7. We have perused the evidence of P.W. 1 and P.W. 2 as well as D.W. 2 and hold that the plea was rightly rejected by the trial court as well as by the appellate court and this happens to be a belated attempt on the part of the accused to save himself. The identity of the accused has been well established by P.W. 1 and P.W. 2. 8. The next submission of the learned Counsel is regarding non-compliance of the provisions of Section 13(2) of the Prevention of Food Adulteration Act. From the prosecution evidence on record we find that notices under Section 13(2) was sent to the Petitioner by registered post. Ext. 16 is the copy of the said notice, Ext. 18 is the postal receipt and Ext. 19 is the acknowledgment card received back from the postal department. The name and address of the Petitioner has been clearly mentioned in Ext. 16 as well as Ext. 19. The learned Counsel has submitted that the accused person has denied his signatures on Ext. 19 and as such it was the burden of the prosecution to establish that notice was duly served on the accused. The Petitioner has placed reliance on the decision of the Apex Court in the case of State of Orissa v. Gouranga Sahu 2003 Crl. L. Journal 3077. In the light of the above decision of the Apex Court the matter was considered by this Court in the case of Subhash Ghosh v. State of Assam-Criminal Revision No. 559/96 disposed of on 3.8.2004 and this Court held: 3. L. Journal 3077. In the light of the above decision of the Apex Court the matter was considered by this Court in the case of Subhash Ghosh v. State of Assam-Criminal Revision No. 559/96 disposed of on 3.8.2004 and this Court held: 3. The sole ground on which the conviction of the Petitioner has been challenged before us, is regarding alleged non-compliance of the provisions of Section 13(2) of the Act which reads as follows: Section 13(2): On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period often days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. 4. The matter was considered by Full Bench of this Court in the case of Ratanlal Agarwal v. State of Assam, reported in (1993) 1 GLR 118 wherein, this Court held that the provisions of Section 13(2) of the Act are directory in nature. 5. Mr. Choudhury, learned senior counsel appearing for the Petitioner has placed reliance on the decision of the Apex Court in the case of State of Orissa v. Gouranga Sahu, reported in 2003 Crl. LJ 3077. The Apex Court observed: 4. It is argued on behalf of the accused that mere despatch of the report is not enough; and that the prosecution is further obliged to prove that the letter so despatched had reached the addressee, i.e., the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. Despatch of such a report is intended to inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory. 6. In the case of K. Bhaskaran v. Sankaran, reported in (1999) 7 SCC 510 the Apex Court while considering the provisions of giving notices or receipt notices had this to say: 18. On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. 7. Provisions of Section 27 of the General Clauses Act were also considered by the Apex Court in the earlier case of State of Madhya Pradesh v. Hira Lal, reported in (1996) 7 SCC 523 , the Apex Court observed that where the Respondent manages to have the notices returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively, it must be deemed that the notices have been served on the Respondent. 8. Provisions of Section 138(b) N.I. Act, 1881 are similar and identical with the provisions of Section 13(2) of the Act as quoted above and in the case of Sridhar M.A. v. Metalloy N. Steel Corporation reported in (2000) 1 SCC 397, the Apex Court held that in appropriate cases, deemed service of notice may be accepted by the Court and this will depend on the facts of each case. 9. In view of Ext. 9. In view of Ext. 16, 18 and 19 we find no force in the submission that the provision of Section 13(2) was not complied with in the present case. 10. In view of the above, we find no merit in this revision and the revision petition stands dismissed. 11. At this stage it is submitted that the present proceeding is pending since 1986 and as such the sentence of imprisonment may be substituted. 12. 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. 13. 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. 14 From the above we find that the power to commute lies with the 'appropriate government'. 14 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 15. The revision petition stands dismissed as above. 16. Send down the records. Petition dismissed.