Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 2 (CAL)

Corporation of Calcutta v. Baldeo Shaw

2011-01-03

KANCHAN CHAKRABORTY

body2011
JUDGMENT KANCHAN CHAKRABORTY, J. 1. THIS is an appeal against an order dated 31.12.1992 of acquittal passed by the learned Municipal Magistrate, 4th Court Calcutta in I/1983. The respondent herein Baldeo Shaw who was prosecuted under Section 16(1) (a) (2) of the prevention of Food Adulteration Act was found not guilty by the learned Trial Court and acquitted from the charge. The appellant herein Corporation of Calcutta being dissatisfied with that order of acquittal has preferred this appeal on the grounds that the learned Magistrate erred in providing the respondent with protection under Section 19(2) of the Prevention of Food Alteration Act. 2. THE brief fact of the case is that the Criminal action against the respondent was started under Section 16(1) (a) of Prevention of Food Adulteration Act on the basis of a complaint lodged by one B. K. Bhowmik, Food Inspector. It was alleged that on 26.8.1982, at about 1.30 hours, Mr. Bhowmik had been to the grocery shop of the respondent and seized Mona brand spice (chili powder) in closed packet which was stored and exposed for sale, in presence of witnesses. THE Food Inspector purchased those packets of such branded chili spice powder, taken the sample observing all the formalities under the law, sent the same for analysing to the public Analyst. It was found that the chili powder purchased by the Food Inspector was adulterated. THE respondent was, thus, found selling of adulterated spice although branded, but without batch no or code no or date of manufacture. THE learned Magistrate after taking cognizance of the offence, examined three (3) witnesses including the Food Inspector. Upon considering the evidence recorded and material placed before it, the learned Magistrate found that the complaint/prosecution failed to bring home the charge leveled against the respondents. THE learned Magistrate also found that the respondent is protected under Section 19(2) of the Act because he could show warranty at the time of Trial. The only question to be answered in this appeal whether the learned Trial Court was justified in coming to the conclusion that the appellant is entitled to protection under Section 19(2) of the Act in the background of the case. 3. MR. The only question to be answered in this appeal whether the learned Trial Court was justified in coming to the conclusion that the appellant is entitled to protection under Section 19(2) of the Act in the background of the case. 3. MR. Sanat Chowdhury, learned Advocate appearing for the appellant, The Corporation of Calcutta contended that the learned Court erred in coming to a conclusion that the respondent is entitled to protection under Section 19(2) of the Prevention of Food Adulteration Act 1954. According to him while the respondent failed to produce the warranty before the Food Inspector at the time the sample was purchased or immediately thereafter when the charge was framed in the learned Trial Court. The learned Court should not have accepted the cash memo as warranty at the time the respondent examined himself as defense witness no. 1. This latitude given to the respondent by the learned Trial Court is not in the line with the prescription of the Section 19(2) of the Act. This apart, MR. Chowdhury contended, the learned Trial Court failed to take action against the alleged manufacture of the product in question under Section 20 A of the Act. 4) MR. Pradip Roy, learned Counsel appearing for the respondent contended that the respondent produced the bill/cash memo to the Food Inspector at the time of inspection and purchasing of the sample. But, the Food Inspector refused to accept the same. The food product which was ultimately found as adulterated after chemical analysis was a branded product, duly packed in a sealed packet containing the name and address of the manufacturer. That pouch/packet was not sized by the Food Inspector and produced in Court for inspection of the Court. That the complaint could examined only three witnesses out of which two witnesses were not tendered for cross-examination by the complainant. The only witness examined and cross-examined was the Food Inspector as prosecution witness no. 1. MR. Ray contended that when the respondent could produce bill/voucher of the product which was warranty by virtue of proviso 2 Section 14 and that was admitted into evidence and marked as Exhibit, there was no mistake on the part of Court to consider the same as a piece of evidence which corroborated the consistent case of the respondent through out the Trial. 4 THIS appeal has its matrix rendered by the judgment impugned by the learned Municipal Magistrate. Detailed reference to the factual aspect would be unnecessary as Mr. Chowdhury, the learned Advocate appearing for the appellant, Corporation of Calcutta raised the only point as to whether the learned Court was right or wrong in providing the respondent with the protection under Section 19(2) of the Act. It is admitted position that the respondent was running a small grocery and was not a manufactured of any item. The branded chili powder in sealed package was admittedly was not manufactured by him. On careful appraisal of the oral testimony of the P.W. 1, i.e., Food Inspector it appears clearly that the product of which he took sample was in a sealed packet wherein the name and address of the manufacturer was printed. Sample was taken in presence of a local witness Sri Bundilal Shaw, of 107, Bimond Harbour Road. According to the complainants case and statement of the P.W. 1, the respondent could not produce warranty of any kind at that time. On the other hand, it is the claim of the respondent that he produced the warranty containing details of his purchase of the particular product of Mona Brand Spice of Howrah, was produced and shown to the Food Inspector who refused to consider the same and take note of the same. The best person to say whether or not the warranty was shown would have been the local witness Bandilal Shaw. Unfortunately, he was not examined as a witness. It has also been noted already that two other witnesses examined on behalf of the complainant were not tendered for cross-examination. So, the learned Trial Court did not consider their evidence at the time of passing the judgment. We find from the record that the respondent filed one cash memo of Mona Spice Powder issued by one Tanmoy product dated 12.6.1982 in favour of Boldev Shaw in respect chili powder. That the document was admitted into evidence at the time the respondent was examined as D.W. 1. It was marked as Exhibit A. The D.W. 1, i.e. , the respondent in his examination-in-chief has stated categorically that Exhibit 1 was issued in his favour by Tanmoy product in respect of Mona Spices powder which was shown to the P.W. 1 when he purchased the sample. 5. It was marked as Exhibit A. The D.W. 1, i.e. , the respondent in his examination-in-chief has stated categorically that Exhibit 1 was issued in his favour by Tanmoy product in respect of Mona Spices powder which was shown to the P.W. 1 when he purchased the sample. 5. WHAT can be gathered from the evidence on record is that the appellant who was running a small grocery was found selling branded chili powder in sealed cover containing the name and address of the manufacturer. That product was seized, sample was taken in presence of witness and sent for chemical examination and it was found adulterated. There is no witness to support the fact whether or not the respondent produced warranty/cash memo at that time or not. The evidence on this regard is oath Vs. oath. The learned Trial Court relied on the Exhibit A and the testimony of D.W. 1, i.e., the respondent. Although the learned Trial Court made some hypothetical remarks which perhaps encouraged Mr. Chowdhury to make the submission that the learned Court was incorrect in providing the respondent with protection under Section 19(2) of the Act. 6. THE principle behind Section 19 is that if the goods suspected to be adulterated are seized from a vendor and the same is found to be covered by warranty, any offence, committed under the Prevention of Food Adulteration Act may attach not to the person from whom samples are taken but to the actual trader who may be deemed to have been responsible for the adulteration. (Nathna Patodi Vs. Corporation of Calcutta AIR 1967 Cal 150 ). THE Section 19 of the Act is silent conspicuously as to the time when such a plea of protection is to be taken by the vendor. It is not also mentioned any where within the four corners of the Act and Rules that a vendor is precluded for taking such a plea of protection at the time of trial. Mr. Chowdhury in support of his contention referred to a decision reported in 1991 CRLJ 1115 . In that case, original cash memo was not filed and source was informed at considerable delay. In the case in hand, fact is quite different. Hearin , the respondent has taken the plea that he produced the cash-memo (Exhibit A) at the time the Food Inspector purchased the sample in presence of witness. In that case, original cash memo was not filed and source was informed at considerable delay. In the case in hand, fact is quite different. Hearin , the respondent has taken the plea that he produced the cash-memo (Exhibit A) at the time the Food Inspector purchased the sample in presence of witness. He has taken that plea also in course of his examination under Section 313 Cr.P.C. He, in support of that plea, examined himself and tendered himself for cross-examination also. The cash memo, i.e., Exhibit A was admitted into evidence and marked Exhibit. No objection was raised by the complainant in course of cross-examination in the matter of admission of such a document. Being a good piece of evidence supporting the case of the +respondent, the learned Trial Court accepted the plea taken by the respondent. 7. THEREFORE, there is no illegality and unreasonableness in the considered opinion of the learned Trial Court in the matter of giving the respondent protection under Section 19(2) of the Act. 8. HOWEVER, I, upon consideration of the factual aspect of this case as well as the way evidence was adduced by the parties, and constrained to observe that the learned Trial Court proceed with the trial in a very slip-shod manner. Mr. Chowdhury rightly pointed out that the learned Trial Court ought to have proceeded under Section 20 A against the manufacturer who is responsible for the adulteration. HOWEVER, on the latches on the part of the Court, the respondent is not supposed to suffer. As far as the respondent is concerned, the nature of punishment recorded and the time already passed by in appeal, I find it inexpedinet to interfere in the findings of the learned Trial Court and upset the decision of the acquittal of the respondent. Accordingly, the appeal fails and is disposed of. The copy of judgment and the L.C.R. be sent to the learned Trial Court.