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2012 DIGILAW 898 (GAU)

Najrul Islam (MD. ) v. State of Assam

2012-07-27

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 29.06.2002, passed, in CR Case 1659/1996, by the learned Chief Judicial Magistrate, while the present petitioner, Md. Najrul Islam, was 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 undergo rigorous imprisonment for 6 (months) and pay fine of Rs.500/- and, in default to pay fine, undergo rigorous imprisonment for a further period of 15 (fifteen) days, his co-accused, M/s New Kohinoor Bakery, was sentenced to pay fine of Rs.10,000/-. Aggrieved by their conviction and the sentences, passed against them, both the convicted persons aforementioned preferred an appeal, which gave rise to Crl. Appeal No. 32/2002. By judgment and order, dated 14.07.2004, passed in Crl. Appeal No. 32/ 2002 aforementioned, while the learned Additional Sessions Judge, Nagaon, has set aside the conviction of co-accused, M/s Kohinoor Bakery, and thereby partly allowed the appeal, the conviction of the present accused-petitioner and the sentence, passed against him, has been upheld by the learned Additional Sessions Judge, Nagaon. Aggrieved by his conviction and the sentence, passed against him, the accused-petitioner is, now, before this Court with the present criminal revision. 2. I have heard Mr. J. Roy, learned counsel for the accused-petitioner. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 07.06.1996, a Food Inspector (PW1), accompanied by his Office Peon (P W2), visited M/s Kohinoor Bakery and, upon serving notice, in Form No. VI, on the present accused-petitioner, who was present inside the Bakery and who identified himself as the proprietor of the said bakery, and also, upon making payment of a sum of Rs.9.00 only, purchased 3 (three)'pieces of bread weighing 200 grams each. The breads, so purchased, were put into three separate dry and clean polythene containers and the containers were, then, sealed and labelled, as prescribed by the procedure, laid down therefore, and sent, in course of time, the sample of the bread (Bread Kohinoor) to the Public Analyst, Government of Assam, for analysis. The Public Analyst opined that the sample was excessively fungus infested and unfit for human consumption. The report of the Public Analyst further read as under: “Physical : Excessively fungal growth developed. The Public Analyst opined that the sample was excessively fungus infested and unfit for human consumption. The report of the Public Analyst further read as under: “Physical : Excessively fungal growth developed. Total Ash : 1.35% Ash insoluble in Dil Hcl. : 0.02 Alcoholic acidity (with 90% Alcohol) :9.05 ml N Naoh/100gm” 4. Having, therefore, obtained necessary sanction for prosecution from the Local (Health) Authorities, the Food Inspector (PW1) submitted a complaint to the Chief Judicial Magistrate, Nagaon, seeking prosecution of the two accused aforementioned under Section 7 read with Section 16 of the PFA Act. 5. At the trial, when a charge, under Section 7 read with Section 16 of the PFA Act, was framed against the accused-petitioner, the accused-petitioner pleaded not guilty thereto. 6. Prosecution examined two witnesses in support of their case. Thereafter, the accused were examined under Section 313 Cr.P.C. and, in their examination aforementioned, the present accused-petitioner denied that he was the proprietor of M/s Kohinoor Bakery and claimed that the bakery belonged to his father. The present accused-petitioner also denied that he had received notice under Section 13(2) of the PFA Act, which PW1 had claimed to have been sent to the present accused-petitioner by registered post. Later on, the Court also examined the Public Analyst, as Court witness, who was cross-examined by the defence. 7. Having found both the- accused aforementioned guilty of the offence charged with, learned trial Court convicted them accordingly and passed sentences against them as mentioned above. 8. Aggrieved by their conviction and the sentences, passed against them, both the convicted persons, as indicated above, preferred appeal. Since the appeal has been partly allowed by upholding the conviction of the present accused-petitioner and the sentence passed against him by the learned trial Court, the accused-petitioner is, now, before this Court with the present revision putting to challenge his conviction and the sentence passed against him. 9. At the time of hearing of this revision, it has been submitted, on behalf of the accused-petitioner, that bread is a perishable article of food and there was inordinate delay in analyzing the sample of bread and thereby prejudice has been caused to the accused-petitioner. 10. 9. At the time of hearing of this revision, it has been submitted, on behalf of the accused-petitioner, that bread is a perishable article of food and there was inordinate delay in analyzing the sample of bread and thereby prejudice has been caused to the accused-petitioner. 10. While considering the above submissions, made on behalf of the accused-petitioner, one may take note of Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'PFA rules'), which provides that the Public Analyst shall send to the Local Health Authority a report of the result of analysis within a period of forty days from the date of receipt of sample for analysis. Thus, the outer limit for sending the report of analysis by the Public Analyst to the Local (Health) Authority is forty days. 11. In the present case, the sample was taken on 07.06.1996 and it was dispatched to the Public Analyst on 08.06.1996. The sample was received by the Public Analyst on 13.06.1996 and, according to the evidence of the Public Analyst, he examined the sample oh 17.06.1996. The Public Analyst signed the report on 22.07.1996 and on the same day, i.e., 22.07.1996, the report was forwarded to the Local (Health) Authority. Thus, the sample was analysed and the report of the analysis was forwarded to the Local (Health) Authority within forty days. There was, therefore, no violation of Rule 7(3) of the PFA Rules. 12. Coupled with the above, the standard of quality of bread, as provided by Appendix 18.14 of the PFA Rules, is as under: “(a) Alcoholic acidity (with 90% alcohol) shall not be more then equivalent of 7.5 ml. Sodium hydroxide per 100g of dried substances. (b) Ash insoluble in dilute hydrochloric on dry weight basis – (i) bread except masala bread or fruit bread - not more then 0.1 percent (ii) masala bread or fruit bread - not more then 0.2 percent Provided also that it shall be free from dirt, insect and insect fragments, larvae, rodent barirs and added colouring matter except any permitted food colours present as a carry over colour in accordance with the provisions of Rules 64-C, in raw material used in the products. *** *** ***” 13. *** *** ***” 13. In the present case, as per the Public Analyst's report, the quantity of alcoholic acidity (with 90% alcohol), contained in the bread (Kohinoor bread), was 9.05 ml per 100 gm., whereas the quantity of alcohol, as per the standard of the quantity of bread, as prescribed by Appendix 18.14 of the PFA Rules, shall not be more than 7.5 ml. Again, the quantity of total Ash, found in the sample (bread Kohinoor), was 1.33%, whereas, the quantity of Ash shall not exceed 0.2% as per the standard of quality prescribed. Thus, the sample of bread (Kohinoor bread) did not conform to the standard of quality as prescribed by the PFA Rules. Further-more, according to the Public Analyst, there was excessive fungal growth in the bread and it became unfit for human consumption. 14. Coupled with the above, the Food Inspector (P W1) has clearly deposed that a notice, under Section 13(2) of the PFA Act, had been sent to the present accused-petitioner by registered post and the Food Inspector also proved Exhibit 20 as the Postal acknowledgement card of the present accused-petitioner. This assertion of PW1 has remained unchallenged during his cross-examination. In such a situation, it cannot, but be held that the notice, as required under Section 13(2) of the PFA Act, had, indeed, been sent to, and received by, the accused-petitioner. 15. Because of the fact that the evidence on record clearly proves, as rightly observed by the learned Courts below, that the accused-petitioner was the one, who had sold the sample of bread to the Food Inspector and when the sample of bread was found to be adulterated, there could have been no escape from the conclusion, and it was rightly concluded by the learned trial Court, that the accused-petitioner was proved to have sold adulterated food article. This Court is, therefore, of the firm view that the accused-petitioner's conviction was wholly supported by the evidence on record and the law relevant thereto. 16. Situated thus, this Court does not find any merit in this revision. This criminal revision petition, therefore, fails and the same shall accordingly stand dismissed. Send back the LCR.