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2011 DIGILAW 158 (GAU)

Kartik Chandra Dutta v. State Of Assam

2011-02-25

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. This Revision petition is directed against the judgment and order dated 27.8.2002 passed by the learned Additional Sessions Judge, Sivasagar, in Criminal Appeal No 32(3)/2003, dismissing the appeal preferred by the Petitioners and affirming the judgment and order dated 25.8.2000, passed by the learned Chief Judicial Magistrate, Sivasagar, in CR Case No 31/1992, whereby the Petitioner Nos. 1 to 3 were convicted and sentenced to suffer RI for six months and to pay a fine of Rs.1,000/- each, in default, to undergo RI for one month and the Petitioner No 4, namely M/s Kartik Dutta & Company, the firm, was convicted and sentenced to pay a fine of `. 1,000/- under Section 7/16read with Section 17 of the Prevention of Food Adulteration Act, 1954, (for short the "Act"). 2. I have heard Mr. JM Choudhury, learned senior counsel for the Petitioners and Mr. K Munir, learned APP, Assam. 3. The prosecution case, in brief, is that on 31.8.1991, Shri Hiren Gogoi, Food Inspector, Sivasagar, accompanied by the Executive Magistrate, Sivasagar and a Peon of the office of the Local Health Authority, Sivasagar, visited the premises of the Petitioner No 4, which is a Grocery Shop, and collected samples of turmeric powder from the shop. After complying with the necessary formalities, as required under the Act and the Prevention of Food Adulteration Rules, 1955, (for short the "Rules"), one part of the sample was sent to the Public Analyst who submitted his report dated 11.10.91 stating that the sample of the turmeric powder was adulterated. Relevant papers were furnished to the Chief Medical and Health Officer, Sivasagar, who on consideration of the same and on being satisfied, accorded sanction to prosecute the present Petitioners. On receipt of the sanction, the Food Inspector submitted a complaint on 18.1.92 against the four accused persons to be tried under Sections 7(i) and 17 read with Section 16(1) of the Act. In the said complaint, prosecution against all the accused persons were sought for storing for sale as well as selling adulterated turmeric powder under Section 2(i-a)(a) of the Act and for contravention of Rule 44(h) and also for contravention of standards of quality as specified in Item A.05.20.01 in Appendix B of Rule 5 of the said Rules. In the said complaint, prosecution against all the accused persons were sought for storing for sale as well as selling adulterated turmeric powder under Section 2(i-a)(a) of the Act and for contravention of Rule 44(h) and also for contravention of standards of quality as specified in Item A.05.20.01 in Appendix B of Rule 5 of the said Rules. The Chief Medical and Health Officer, Sivasagar, forwarded the report of the Public Analyst to each of the Petitioners under Section 13(2) of the Act. 4. On receipt of the complaint from the Food Inspector, Sivasagar, the learned Chief Judicial Magistrate, Sivasagar, framed charges against the Petitioner Nos. 1, 2 and 3 under Section 7/16 of the Act, to which they pleaded not guilty and claimed to be tried. 5. The prosecution examined two witnesses to prove its case and the defence examined none. The statements of the accused persons were recorded under Section 313 CrPC. 6. After hearing both the sides and upon consideration of evidence and materials on record, the learned Chief Judicial Magistrate, Sivasagar, convicted the accused persons under Section 16(1)(a)(i) read with Section 7(i) of the Act vide judgment and order dated 19.7.1996. 7. Against the said judgment, the accused persons preferred an appeal in the Court of the learned Sessions Judge, Sivasagar, being Criminal Appeal No 5(3)/96. Vide judgment and order dated 26.4.1999, the learned Sessions Judge, Sivasagar, set aside the conviction and sentence passed by the learned Chief Judicial Magistrate, Sivasagar, on the ground that M/s Kartik Chandra Dutta and Company was convicted without framing charge, and, therefore, had remanded back the case for re-trial. 8. After remand, the charge, as directed by the learned Sessions Judge, Sivasagar, was framed. The proceeding continued and the learned Chief Judicial Magistrate, Sivasagar, vide order dated 28.8.2000, convicted the accused persons under Section 7/16 read with Section 17 of the Act and sentenced them to suffer RI for six months and to pay a fine of Rs.1,000.00. M/s Kartik Chandra Dutta and Company, the firm, was convicted and sentenced to pay a fine of Rs.1,000.00. 9. The aforesaid judgment and order was carried on appeal to the Court of the learned Additional Sessions Judge No 2, Sivasagar and vide judgment and order dated 27.8.2002, the learned Additional Sessions Judge No 2, Sivasagar, dismissed the appeal and affirmed the conviction and sentence passed by the learned Chief Judicial Magistrate, Sivasagar. 9. The aforesaid judgment and order was carried on appeal to the Court of the learned Additional Sessions Judge No 2, Sivasagar and vide judgment and order dated 27.8.2002, the learned Additional Sessions Judge No 2, Sivasagar, dismissed the appeal and affirmed the conviction and sentence passed by the learned Chief Judicial Magistrate, Sivasagar. 10. Mr. Choudhury, learned senior counsel for the Petitioner, submits that there was failure on the part of the prosecution in not examining one witness, namely, Shri Mahavir Maheswari, in whose presence the sample was collected and the same casts a doubt about the genuineness of the prosecution case. He argues that there being no admissible evidence on record against the Petitioner Nos. 2 and 3 to prove that they are partners of the firm and had committed the offence, the impugned judgments and orders are not sustainable in law. Mr. Choudhury also submits that the learned trial Court has also shifted the burden of proof to the accused Petitioner Nos. 2 and 3 to show that they are not active partners of the firm and that they have no direct involvement in the business of the firm. He further submits that the Petitioner No 2, Shri Govinda Chandra Dutta, did not himself receive any notice under Section 13(2) of the Act. According to him, there is infraction of Section 13(2) of the Act. It is his contention that the prosecution must prove not only the dispatch of notice but also the service thereof. The evidence on record leaves no room for doubt that the notice meant for Petitioner No 2 was received by the Petitioner No. 1 and, therefore, the conviction of the Petitioner No 2 is bad in law on that count. In this connection, the learned senior counsel has placed reliance on the decision of the Apex Court in the case of State of Orissa v. Shri Gauranga Sahu, reported in AIR 2004 SC 1233 . Mr. Choudhury further submits that the prosecution did not lead any independent evidence to prove that the Petitioner Nos. 2 and 3 are partners of the firm. The only evidence in this regard is through PW- 1 who stated that he came to learn from the Petitioner No. 1 that Petitioner Nos. 2 and 3 are also responsible partners of the firm. He submits that the prosecution should not rely on the statement of the co-accused. 2 and 3 are partners of the firm. The only evidence in this regard is through PW- 1 who stated that he came to learn from the Petitioner No. 1 that Petitioner Nos. 2 and 3 are also responsible partners of the firm. He submits that the prosecution should not rely on the statement of the co-accused. In this regard, the learned senior counsel relies on the judgment of the Apex Court in the case of Shri Haricharan Kurmi v. State of Bihar, reported in AIR 1964 SC 1184 . 11. Mr. Munir, learned APP, Assam, on the other hand, submits that the materials on record amply demonstrate that the prosecution has been able to prove the charges leveled against the accused Petitioners. He submits that both the learned Courts below have recorded concurrent finding that there is no infirmity in collection of sample. All the steps required under the provisions of Act and the Rule were scrupulously followed. He submits that in any view of the matter, PW-1 has asserted in his deposition that the Petitioner Nos. 1, 2 and 3 are the partners of the firm and the plea that the Petitioner Nos. 2 and 3 are not the partners of the firm, is an afterthought and cannot be sustained. In that view of the matter, in exercise of revisional jurisdiction, this Court should not interfere with the conviction and sentence passed by the learned Courts below, he submits. 12. The evidence of PW-1 discloses that Shri Mahavir Maheswari was a witness in Form- VI, Ext-1. The Food Inspector, PW-1, had secured the presence of an independent witness at the time of taking the sample and, therefore, there is compliance of provision of Section 10(7) of the Act. It is settled position of law that Sub-section (7) of Section 10 of the Act, is directory and, therefore, non- examination of Shri Mahavir Maheswari, during the course of trial, does not vitiate the conviction and sentence. 13. In the complaint, which was exhibited as Ext-18, it was indicated by the Food Inspector that at the time of his inspection, he found Shri Kartik Chandra Dutta who gave his identity as the partner of the firm and he had also disclosed the names of other responsible partners of the firm as Shri Govinda Chandra Dutta and Shri Dilip Chandra Dutta. The complaint petition was filed on 18.1.1992. The complaint petition was filed on 18.1.1992. It was also stated in the complaint petition that PW-1, Food Inspector, had, later on, ascertained from the office of the Deputy Commissioner, Sivasagar, regarding constitution of the firm. In his evidence, PW-1, had reiterated the aforesaid statement that he had sought information about the constitution of the firm from the office of the Deputy Commissioner. There was no cross-examination of the PW-1 suggesting that all the accused persons were not the partners of the firm or that all of them were not responsible for day to day conduct and business of the firm. In his statement under Section 313 CrPC, Shri Kartik Chandra Dutta had confirmed that he was a partner of M/s Kartik Chandra Dutta and Company. Shri Govinda Chandra Dutta and Shri Dilip Chandra Dutta, in response to a question that it has been brought on evidence that they were also responsible partners of the partnership firm, had answered in the affirmative. The reliance placed by Mr. Choudhury in Shri Haricharan Kurmi (supra), in the considered opinion of the Court, is not well founded. In the facts of Shri Haricharan Kurmi (Supra),the question that was considered, amongst others, was about the part which a confession made by a co-accused, can pay in a criminal trail. The Apex Court had ruled that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person and that it must begin with other evidence adduced by the prosecution and only after it had formed its opinion with regard to quality and effect of the said evidence, it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt, which the judicial mind is about to reach on the said other evidence. 14. In the instance case, the vendor had made a statement regarding the other partners of the firm when the sample was collected by the PW-1. Such a statement informing PW-1 regarding constitution of the firm is not a confession. PW- 1 had also proved a document dated 31.12.1991 issued from the office of the Deputy Commissioner, (Food and Civil Supplies Branch), Sivasagar, as Ext- 4. Ext- 4 reveals that Shri Kartik Chandra Dutta, Shri Govinda Chandra Dutta and Shri Dilip Chandra Dutta are partners of the firm. PW- 1 had also proved a document dated 31.12.1991 issued from the office of the Deputy Commissioner, (Food and Civil Supplies Branch), Sivasagar, as Ext- 4. Ext- 4 reveals that Shri Kartik Chandra Dutta, Shri Govinda Chandra Dutta and Shri Dilip Chandra Dutta are partners of the firm. As has been noted earlier, there was no cross-examination of PW- 1 on this point. In view of Ext- 4, examination of any other witness to prove that the accused persons are partners of the firm was not necessary. Section 17 of the Act would come into play and, therefore, all the partners, in absence of any nomination to be in-charge of, and responsible for the conduct and business of the firm, shall be deemed to be guilty of the offence and shall be liable to be proceeded against them and punished accordingly. It is not a case where the burden of proof has been shifted to the Petitioner Nos. 2 and 3 to prove that they are not partners of the firm and that they have no direct involvement in the conduct and business of the firm. Even in the Revision Petition, all the three accused persons have stated that they are partners of M/s Kartik Chandra Dutta and Company. Therefore, the contention of Mr. Choudhury with regard to the Petitioner Nos. 2 and 3, is not accepted. 15. Now I take up the point urged regarding non-receipt of notice by the Petitioner No 2 under Section 13(2) of the Act. It is not the case that no notice under Section 13(2) of the Act was sent to the accused persons. The evidence on record and more particularly, the Peon Book, Ext- 21, would indicate that Shri Kartik Chandra Duta had received notices on behalf of the firm as well as himself in addition to notice meant for Shri Govinda Chandra Dutta, Petitioner No 2. Shri Dilip Chandra Dutta had received notice himself. The decision of the Apex Court relied on by Mr. Choudhury in Gauranga Sahu (supra) was a case when concurrent finding based on the evidence that the report was served on the accused was interfered with by the High Court in revision. Despatch of the report is intended to inform the accused of his right to get the sample analyzed from the Central Food Laboratory. Choudhury in Gauranga Sahu (supra) was a case when concurrent finding based on the evidence that the report was served on the accused was interfered with by the High Court in revision. Despatch of the report is intended to inform the accused of his right to get the sample analyzed from the Central Food Laboratory. It has already been held that the prosecution had established that all the three are partners of the firm. Two individual partners and the firm had duly received notices and the notice in respect of the Petitioner No 2 was received by Shri Kartik Chandra Dutta. 16. In the aforesaid factual backdrop, I am of the considered opinion that Section 13(2) of the Act has been complied with in the instant case and no prejudice is caused to the Petitioner No 2. 17. In view of what has been discussed above, I find no merit in this revision petition and accordingly, the revision petition is dismissed. 18. Send down the LCRs. Petition dismissed.