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2011 DIGILAW 750 (GAU)

Dwarika Prasad v. State of Assam

2011-09-08

H.BARUAH

body2011
ORDER H. Baruah, J. 1. The petitioner herein is the proprietor of M/s. Sadhu Industries and Oil Mill situated at Lalpatty, Hojai. He has been convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the PFA Act") and sentenced to suffer rigorous imprisonment for six (6) months and to pay a fine of Rs. 1,000/-, in default RI for two (2) months vide judgment and order dated 25-7-. 2002 passed by the Sub-Divisional Judicial Magistrate, Hojai at Sankardev Nagar in C.R. Case No. 1 of 1997. On appeal, the aforesaid judgment and order of conviction was affirmed by the judgment dated 30-8-2003 passed in Criminal Appeal No. 39 of 2002 by ad hoc Additional Sessions Judge, Hojai at Sankardev Nagar. Being convicted and sentenced as indicated above by the impugned judgment and order, the same is challenged by this instant Criminal Revision Petition. I have hearde Mr. B.M. Choudhury, learned counsel appearing for the petitioner as well as Mr. B. Gogoi, learned Additional P.P. appearing for the State-respondent. 2. The impugned judgment and order of conviction is primarily challenged on the following three (3) grounds :-- i) that the mustard oil contained in container found inside the mill premises from where the sample had been taken by the Food Inspector (P.W. 1) was not for sale"; ii) that the Food Inspector (P.W. 1) while taking sample of mustard oil from the mill belonging to the accused-petitioner herein failed to follow the provision of Section 10(7) of the Prevention of Food Adulteration Act; and iii) that Rule 9(e) of the Prevention of Food Adulteration Rules, 1955 was not followed during the process of sample taking of the mustard oil. 3. The facts relevant to the case, at this stage may be summarized as follows : 4. The petitioner herein is the proprietor of the Mill under the name and style M/s. Sadhu Industries situated at Lalpatty, Hojai Town in the Sub-Division of Sankardev Nagar. In the Mill, the petitioner is/was dealing in grinding mustard oil, wheat and various other spices provided to him by various customers. Such grinding/milling, the petitioner took some price from the customers. On 30-9-1996 Food Inspector Shri D.D. Borah (P.W. 1) visited the Mill premises belonging to the petitioner along with his peon, Md. In the Mill, the petitioner is/was dealing in grinding mustard oil, wheat and various other spices provided to him by various customers. Such grinding/milling, the petitioner took some price from the customers. On 30-9-1996 Food Inspector Shri D.D. Borah (P.W. 1) visited the Mill premises belonging to the petitioner along with his peon, Md. Samsul Haque Borbhuyan an employee of the office of the Sub-Divisional Medical and Health Officer, Hojai and while visiting on suspicion he decided to take sample of mustard oil and accordingly, served notice in Form-6 and purchased 375 gms of mustard oil from the container from inside the Mill. This aforesaid sample was taken in presence of P.W. 2, peon Md. Samsul Haque Borbhuyan. Before taking sample though P.W. 1, the Food Inspector tried to obtain the presence of independent witnesses, was unable have the presence and accordingly finding no other alternative had to take sample in presence of the peon only. It would be appropriate to state at this stage that before taking simple, the Food Inspector tried to persuade the persons present inside the mill to be witness in the sample taking process but they refused to be so and left the place. It is stated that the sample so taken had been divided in three parts and put inside the bottle taken from the office of the Sub-Divisional Medical and Health Officer, Hojai which had been properly sealed and packed. The samples having been sent for analysis, analysis report so submitted speaks for non-conforming of standards. Thereafter, a notice under Section 13(2) of the Act was sent to the petitioner herein. Thereafter, the Food Inspector, P.W. 1 submitted a complaint before the Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar for trial of the accused. It would be appropriate to state that before commencement of the trial, one part of the sample was sent to Central Food Laboratory for analysis. The analysis report of the Central Food Laboratory also speaks for nonconforming of standard. In the trial the prosecution examined two witnesses the Food Inspector (P.W. 1) and his peon (P.W. 2) while the petitioner examined himself as D.W. 1 and one Sitaram Prasad as D.W.-2. The trial Court after meticulous consideration of fact, evidence of record, oral and documentary recorded conviction of the petitioner under Section 7/16 of the PFA Act and accordingly, awarded sentence as indicated hereinabove. The trial Court after meticulous consideration of fact, evidence of record, oral and documentary recorded conviction of the petitioner under Section 7/16 of the PFA Act and accordingly, awarded sentence as indicated hereinabove. Being aggrieved thereby, the petitioner preferred an appeal before the Court of ad hoc Additional District Judge, Hojai, Sankardev Nagar. The aforesaid appeal was however, dismissed and affirmed the judgment and order of conviction and sentence awarded by the trial Court. 5. In regard to the ground No. 1, it is submitted by Mr. B.M. Choudhury, learned counsel for the petitioner that there was no evidence on record to show that the mustard oil from which the sample had been taken kept in a container was meant for sale to the customer(s). It is submitted by him that he being the proprietor of the Mill as indicated above, had grinded wheat, mustard seeds and various other spices of customers for price. The day in which P.W. 1 visited the mill premises D.W. 2. Sitaram Prasad had given 10 kg. of mustard seeds for grinding purpose in between 9 a.m. and 10 a.m. said D.W. 2, Sitaram Prasad was to come back to the Mill premises for taking delivery of the mustard oil and accordingly he visited at about 12 noon/1 p.m. In the meantime, the Food Inspector arrived in the Mill premises and had taken the sample of mustard oil from the container. It is submitted that neither, P.W. 1, the Food Inspector, nor P.W. 2, the peon deposed in respect of sale of mustard oil from within the Mill premises to the customers. It is submitted by Mr. B.M. Choudhury, learned counsel for the petitioner that when the mustard oil from which the sample had been taken is not meant for sale. Section 7 of the Act would not come into operation and therefore, the conviction awarded under Section 7 read with Section 16 of the PFA Act would not stand as against the petitioner herein. Section 7 of the Act states as under -- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute". Section 7 of the Act states as under -- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute". (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority (in the interest of public health). (v) any article of food in contravention of any other provision of this Act or of any rule made there under. 6. It says that no person for himself or on his behalf shall manufacture for sale, store, sell or distribute of any of the food items as indicated in (i) to (v) and if any person by himself or through other person(s) for himself does such acts would be punishable under Section 16 of PFA Act. Doing of such acts by the petitioner being wanting in the testimony of P.W. 1 and P.W. 2. it is argued by Mr. B.M. Choudhury learned counsel for the petitioner that it would be unreasonable to hold that the mustard oil found inside the mill premises from where the sample had been taken was for sale. 7. In view of argument advanced by Mr. B.M. Choudhury, learned counsel for the petitioner. Mr. B. Gogoi learned Addl. P.P. in his usual fairness advances his argument that the testimony of P.W. 1 and P.W. 2 being wanting on this point, conviction so recorded under Section 7/16 of the PFA Act would not stand. He fairly submits that there is no evidence to the effect that the mustard oil was kept for sale within the mill premises. On meticulous perusal of the evidence on record, it would appear to us that there is no evidence that the petitioner was selling mustard oil to his customer(s) from inside the mill premises. This Court thus finds force in the submissions of Mr. B.M. Choudhary learned counsel appearing for the petitioner. He in the context of ground No. 2 submits that there is apparent violation of provision of Section 10 (7) of PFA Act. This Court thus finds force in the submissions of Mr. B.M. Choudhary learned counsel appearing for the petitioner. He in the context of ground No. 2 submits that there is apparent violation of provision of Section 10 (7) of PFA Act. He submits that the Food Inspector (P.W. 1) did not make any attempt to call independent witnesses to witness the sample taking though there is evidence forthcoming that in the vicinity of the mill premises there were shops of which some were closed and some were opened but without attempting to adhere to the provision of Section 10(7) of the PFA Act. P.W. 1 tried to have the presence of the persons found inside the mill premises who evidently denied to be witness to the sample taking process. Mr. B.M. Choudhury. learned counsel for the petitioner in support of his contention relied on the ratio laid down in the case between Shri Ram Labhaya v. Municipal Corporation of Delhi, reported in (1974) 4 SCC 491 . In the case of Shri Ram Labhaya (supra), the Apex Court held that non-presence of one or two independent witnesses at the relevant time would not vitiate the trial or conviction. The obligation called upon the Food Inspector is to call independent witnesses to witness the sample taking process. When there is no evidence on record to show that P.W. 1 did make any attempt to have the presence of independent witness(s) from the neighbouring shops, it is strenuously argued that there is violation of Section 10(7) of the PFA Act and this being so the conviction recorded by the Trial Judge cannot obtain any sanction in law. Though it is testified by the P.W. 1 that he tried to obtain presence of two persons found inside the mill, they refused to be witness to the sample taking process but there is no evidence on record to show that he made further attempt to have the presence of the shop keepers or other persons present at the shops situated nearby the mill. In the case of Shri Ram Labhaya (supra), in paragraphs 3, 4 and 5 of the judgment, the Apex Court held as under : 3. Great reliance was placed by counsel for the appellant on the circumstance that as required by Section 10(7) of the Act the Food Inspector did not take the sample in the presence of independent persons. In the case of Shri Ram Labhaya (supra), in paragraphs 3, 4 and 5 of the judgment, the Apex Court held as under : 3. Great reliance was placed by counsel for the appellant on the circumstance that as required by Section 10(7) of the Act the Food Inspector did not take the sample in the presence of independent persons. It is urged that Section 10(7) is mandatory and its contravention would vitiate the conviction. 4. Section 10(7) provides : Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his of their signatures. There can be no doubt that "one or more persons" must mean one of more independent persons. The legislative history of sub-section (7) further shows that at least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the sub-section. Prior to its amendment by Act XLIX of 1964, subsection (7) ran thus : Where the Food Inspector takes any action under clause (a) of sub-section (1)......he shall, as far as possible call not less than two persons to be present at the time when such action is taken and take their signatures. By the amendment of 1964, the words "as far as possible" were deleted. This deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory and it has been so held in Food Inspector, Corporation of Calicut v. Vincen and Ram Sarup Tara Chand v. The State. 5. We are of the opinion, particularly in view of the legislative history of Section10(7), that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present When he takes action. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present When he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat it was held by this Court after noticing that Section 10(7) was amended in 1964, that noncompliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence along, if believed, can sustain the conviction. The Court observed that this ought not be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excess or unfair practices by the Food Inspector. 8. From the narration of facts and evidence as well it would appear that the Food Inspector (P.W. 1) while visiting the mill premises belonging to the petitioner did find presence of two persons therein whom he requested to be witness in the sample taking process. P.W. 1 in his evidence testified that those two persons whom he requested refused to become witness to the sample taking process and finding no alternative took the sample in presence of his accompanying peon (P.W. 2). From the evidence of P.W. 1, it also appears to this Court that at the vicinity of the mill there were shops and on refusal by the two persons found inside the mill premises not to become witness to the sample for taking process, no evidence is forthcoming that P.W. 1 ever tried to have the presence of the shop-keepers whose shops were situated nearby the mill. Therefore, it goes to show that the P.W. 1, the Food Inspector did not make an honest attempt to secure the presence of independent witness to witness the sample taking process. Therefore, it goes to show that the P.W. 1, the Food Inspector did not make an honest attempt to secure the presence of independent witness to witness the sample taking process. The Apex Court while dealing with the case of Shri Ram Labhaya v. Municipal Corporation of Delhi, reported in (1974) 4 SCC 491 calling of the independent witness by the Food Inspector while taking action under any of the provision of sub-section considered to be a mandatory obligation on the part of the Food Inspector. However, in the case of Babu Lal Hargovindas (supra), it was held by the Apex Court that non-compliance of the provision of Section 10(7) would not vitiate the trial since the Food Inspector was not in the position of an accomplice. His evidence if believed can sustain conviction. Taking ratio laid down in Babu Lal Hargovindas ( AIR 1971 SC 1277 ) (supra), the learned Addl. P.P. representing the State submits that the evidence of P.W. 1 would be sufficient to record conviction as against the petitioner. Therefore, the contention of the petitioner that conviction and sentence cannot sustain in view of non-following the provision of Section 10(7) of the Act would not be sustainable. 9. Admittedly, there being shops at the vicinity of the mill, P.W. 1, the Food Inspector could have called one or two shop keepers to be witness to the sample taking process. Such attempt being not made by P.W. 1. it would indicate that the P.W. 1 did not try to respect his obligation as provided in the sub-section. Therefore, submissions advanced by Mr. B.M. Choudhury, learned counsel for the petitioner appears to have leg to stand. By amendment of 1964, the words "as far as possible" were deleted. The Apex Court in paragraph 4 of the judgment rendered in Shri Ram Labhaya (supra) observed that such deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory and such observation has been so held in Food Inspector, Corporation of Calicut v. Vincen and (sic) Ram Sarup Tara Chand v. The State. From the facts and circumstances and the evidence appearing on the face of the record, it would appear to us that the Food Inspector (P.W. 1) did not make an honest attempt to call one or two independent persons to be the witness in the sample taking process. 10-11. From the facts and circumstances and the evidence appearing on the face of the record, it would appear to us that the Food Inspector (P.W. 1) did not make an honest attempt to call one or two independent persons to be the witness in the sample taking process. 10-11. In regard to the ground No. 3, it is submitted by Mr. B.M. Choudhury that the Food Inspector (P.W.1) did not follow the provision of the Rule 9(e) of the Rules 1955 while taking sample of the mustard oil from the mill belonging to the petitioner. Non-following the provision of Rule 9(e) of the Rules 1955, therefore would severely affect the trial as against the petitioner and conviction so recorded would not therefore stand in law. There is ample evidence on record to show that the Food Inspector (P.W. 1) prepared a Memorandum of his actions while taking sample of the mustard oil from the mill of the petitioner. After taking of the sample, P.W. 1 applied for sanction for prosecution by placing all relevant documents necessary for consideration of the Local Health Authority including the diary prepared under Rule (e) of the Rules 1955. The Local Health Authority after meticulous consideration of the materials placed before him accorded sanction for prosecution of the petitioner under Section 7/16 of the PFA Act. It would not be appropriate to say that no diary is prepared of the actions taken by the Food Inspector (P.W. 1) while taking sample of mustard oil. In the face of the evidence on record, this court finds no force in the submission of Mr. B.M. Choudhury. 12. Mr. B.M. Choudhury, learned counsel appearing for the petitioner during the course of his argument to substantiate the case of the petitioner submits that the mustard oil was not meant for sale and tries to lead this Court to make a survey of the evidence of D.W. 2 as well as D.W 1. D.W. 1 is the petitioner himself who testified that on the day of taking sample by the Food Inspector, P.W. 1, D.W. 2 came to his mill and gave 10 kgs, of mustered seed for grinding and he was to take delivery of the mustard oil at about 12noon/1p.m. The mustard oil contained in the container was the mustard oil meant for D.W. 2. D.W. 1. D.W. 1. the petitioner himself stated that he grinds wheat, mustard oil and various other spices in his mill on payment of price. On the relevant date, D.W. 2 gave 10 kgs. of mustard seeds for grinding. D.W. 2 while deposing on oath also stated that he gave 10 kgs of mustard seeds to D.W. 1 for grinding and came to the mill at about 12 noon/1 p.m. to take delivery of the mustard oil. Mr. B.M. Chouduary taking assistance of the testimony of D.W. 1 and D.W. 2 tries to impress upon the Court that the mustard oil from which the sample was taken was not meant for sale. Therefore, there cannot be any violation of the provision of Section 7 of PFA Act and resultantly the petitioner would not be liable under Section 16 of PFA Act. The manner in which D.W. 1 and D.W. 2 testified, their evidence in face of it is not liable to be discarded since it appears not tainted or exaggerated. Mr. Choudhury, learned counsel for the petitioner therefore, contends that there is no reason to disbelief the case of the petitioner that the mustard oil from which sample was taken was not made for sale. Mr. B. Gogoi, learned Addl. P.P. also taking note of the testimony of D.W.1 and D.W. 2 subscribes the argument advanced by Mr. Choudhury. When two views are possible, the view found in favour of the accused is required to be adopted. The testimony of D.W.1 and D.W. 2 being not tainted with embellishment, exaggeration, the case projected by the defence can be believed. In the fact of their testimony, evidence of Food Inspector (P.W. 1) cannot prevail that the mustard oil from which the sample had been taken was kept inside the mill for sale to the customers. 13. Though a contention is raised by the petitioner herein that the Food Inspector (P.W. 1) also did not follow the provision of Section 13(2) of the PFA Act cannot hold good in view of the sending of the other part of the sample to the Central Food Laboratory for analysis. The analysis report submitted by the Public Analyst and the Central Food Laboratory offered same opinion that the sample did not conform to the standard. 14. The analysis report submitted by the Public Analyst and the Central Food Laboratory offered same opinion that the sample did not conform to the standard. 14. So, taking ratio laid down by the Apex Court, the fact and circumstances of the case and evidence on record, both oral and documentary, this Court is of the considered view that the conviction against the petitioner is erroneously and illegally recorded by the trial Magistrate and the appellate Court which cannot sustain in law. 15. In the result, this Criminal Revision is allowed. The impugned judgment and order of conviction and sentence passed by the trial Magistrate dated 25-7-2002 and affirmed by the appellate Court by its judgment dated 30-8-2003 are set aside and quashed. The petitioner is entitled acquittal and accordingly acquitted. 16. It is submitted that the petitioner herein is on bail and not in jail. Therefore, this Court considers appropriate not to issue release order. Transmit the Lower Court records forthwith.