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2012 DIGILAW 922 (GAU)

Uttam Kumar Sureka v. State of Assam

2012-08-03

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 25.05.2004, passed, in Criminal Appeal No. 44 of 2002, by the learned Additional Sessions Judge, Kamrup, Guwahati, the appeal of the present accused-petitioners was dismissed by upholding the judgment and order, dated 26.11.2002, passed, in CR Case No. 779 of 2000, by the learned Additional Chief Judicial Magistrate, Kamrup, whereby each of the accused-petitioners stood 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 a period of 6 (six) months and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 3 (three) months. The case of the prosecution may, in brief, be described thus: The accused-petitioner No. 1, namely, Uttam Kumar Sureka, is the Manager of Friends Chakki Mill, situated at Ambari Tiniali, Guwahati, with the accused-petitioner No. 2, Sajjan Kumar Sureka, as the proprietor of the said mill. On 10.03.2000, a Food Inspector (PW 1), accompanied by his office peon (PW 2), visited the said mill and, on inspection, having found turmeric powder kept exposed for sale for human consumption, the Food Inspector disclosed his identity to the said Uttam Kumar Sureka, who was managing the affairs of the said mill, at the relevant point of time, gave a notice, in Form VI, to accused Uttam Kumar Sureka and purchased 450 grams of turmeric powder by making payment of a sum of Rs. 27/-(Exhibit 1) and obtained receipt (Exhibit 2) therefor. 2. Thereafter, having divided the said sample of turmeric powder into three parts, as required by the procedure laid down in the PFA Act and the rules framed thereunder, the Food Inspector sent one of the samples, for analysis, to the Public Analyst, Assam, who, in turn, on analyzing the said sample of turmeric powder, opined that the sample of turmeric powder was adulterated. 3. 3. Having, then, obtained requisite sanction for prosecution of the two accused-petitioners, who were the proprietor and manager of the said mill, as mentioned above, the Food Inspector laid a complaint in the Court of the learned Chief Judicial Magistrate, Kamrup and, on institution of the case, a report of the Public Analyst, accompanied by a forwarding letter, was sent to the two accused-petitioners by registered post, with A/D, as provided by Section 13(2) of the PFA Act. 4. In course of time, a charge, under Section 7 read with Section 16 of the PFA Act, was framed against the two accused-petitioners. Both the accused-petitioners pleaded not guilty thereto. 5. In support of their case, prosecution examined the Food Inspector and his office peon as witnesses. The two accused-petitioners were, then, examined under Section 313 Cr PC and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that the accused-petitioners had not sold any article of food inasmuch as they merely grind articles of food brought to their said mill for grinding and that the turmeric powder, in the present case, was not kept exposed for sale for human consumption and though the accused-petitioner, Uttam Kumar Sureka, had objected to the purchase of turmeric powder by the Food Inspector for the purpose of analysis, and the signature, on Exhibit 2, which was the receipt (as indicated hereinbefore), as regards the price of the turmeric powder received by the accused-petitioner, Uttam Kumar Sureka, did not bear the signature of the accused-appellant, Uttam Kumar Sureka. 6. In support of their case, the defence, too, adduced evidence by examining both the accused-petitioners. 7. Having, however, found the two accused-petitioners guilty of the offence, charged with, learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence passed against them, both the accused-petitioners preferred an appeal, which, as mentioned above, has been dismissed by the learned Additional Sessions Judge, Kamrup, Guwahati, upholding the judgment and order of the learned Additional Chief Judicial Magistrate, Kamrup, whereby the accused-petitioners stood convicted and sentenced as mentioned above. 8. Aggrieved by their conviction and the sentence passed against them, both the accused-petitioners preferred an appeal, which, as mentioned above, has been dismissed by the learned Additional Sessions Judge, Kamrup, Guwahati, upholding the judgment and order of the learned Additional Chief Judicial Magistrate, Kamrup, whereby the accused-petitioners stood convicted and sentenced as mentioned above. 8. The convicted persons are, therefore, now, before this Court putting to challenge, with the help of this revision, the finding of guilt reached against them and the consequential sentence, which has been passed. 9. I have heard Mr. K. Agarwal, learned counsel for the accused/petitioners. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. 10. Before entering into the merit of the present revision, what needs to be noted is that a 'sale', for the purpose of analysis, is also a sale within the meaning of Section 2(13) of the PFA Act. When, therefore, an article of food is sold to a Food Inspector for the purpose of enabling him to get the article of food analyzed by Public Analyst, such a sale would be a sale, within the meaning of Section 2(13) of the PFA Act, and the vendor of such article of food would be liable to prosecution, under the PFA Act, if the article of food is found to be adulterated. 11. What is, however, imperative to note is that a sale to a Food Inspector has to be voluntary. Consequently, an involuntary act of 'sale' of an article of food by a person to a Food Inspector would not permit the prosecution of the vendor concerned. 12. Bearing in mind what is indicated above, let me, first, come to the complaint (Exhibit 10), which lays the foundation for prosecution of the accused-petitioners. It is noticeable, in this regard, that a complaint, as defined in Section 2(b) Cr PC. means any allegation, made orally or in writing, to a Magistrate with a view to his taking action under the Code of Criminal Procedure that some person, whether known or unknown, has committed an offence. Necessarily, therefore, unless an allegation is made, either orally or in writing, to a Magistrate in order to make him take action, under the Code of Criminal Procedure, by disclosing all such acts, which constitute commission of offence, the allegation would not constitute a complaint within the meaning of Section 2(b) Cr PC. 13. Necessarily, therefore, unless an allegation is made, either orally or in writing, to a Magistrate in order to make him take action, under the Code of Criminal Procedure, by disclosing all such acts, which constitute commission of offence, the allegation would not constitute a complaint within the meaning of Section 2(b) Cr PC. 13. In the case at hand, when the complaint (Exhibit 10) is read, it becomes crystal clear that the Food Inspector has, nowhere, mentioned, in the complaint, that the turmeric powder, sample whereof was taken, had been either kept stored for sale or had been kept exposed for sale. Unless an article of food is stored for sale, or kept exposed for sale, for human consumption, it cannot be regarded, in the light of the provisions of Section 7 of the PFA Act, adulterated article of food. 14. What logically follows from the above discussion is that Exhibit 10, having made no allegation that the turmeric powder, in question, had been kept stored for sale for human consumption, or had been kept exposed for sale for human consumption, did not constitute a valid complaint and could not have, therefore, become the basis for launching prosecution of the accused-petitioners. 15. Coupled with the above, what ought not to have been ignored, but has been ignored by the learned Courts below, is the fact that it was suggested to the Food Inspector (PW 1), while he was under cross-examination by the defence, that accused Uttam Kumar Sureka had not received the value for the alleged sale of the turmeric powder and he also denied that the signature, which appears on Exhibit 2, is his signature. The prosecution did not make even a faint attempt to prove, in accordance with law, that Exhibit 2, which is the alleged receipt as regards the sale of the said turmeric powder, bore the signature of the said Uttam Kumar Sureka. 16. When, therefore, the purchase of turmeric powder, in question, by the Food Inspector, was in consequence of an involuntary sale, it would not constitute, as already discussed above, offence under Section 7 of the PFA Act, particularly, the complaint, as indicated above, did not even allege that turmeric powder was kept stored at the said mill for sale for human consumption. 17. 17. Further more, one can also not ignore the fact that, while cross-examining the Food Inspector, the defence had suggested to him that the accused were not involved in sale of articles of food and that they grind articles of food brought to their mill for grinding. Though the suggestions, so offered by the defence, were denied by the Food Inspector, the fact remains that, when examining himself, as a witness, though accused, Sajjan Kumar Sureka, has repeatedly asserted, in his evidence, that the accused-petitioners do not, and did not, sell articles of food for human consumption and that he holds a trade licence for grinding and not for sale, his assertions went unchallenged by the prosecution. 18. Coupled with the above, it is also worth pointing out that DW 2 (accused Uttam Kumar Sureka) has given evidence to the effect that he had not sold the turmeric powder to the Food Inspector and, in this regard, except offering suggestions to DW 2 that he had sold the turmeric powder to the Food Inspector, the prosecution, while cross-examining DW 1 and DW 2, elicited nothing to show that the claim of the Food Inspector, that the turmeric powder, in question, had been found by him exposed for sale and/or that he had purchased the sample of turmeric powder, as claimed by him, was true. 19. Because of what have been discussed and pointed out above, when the prosecution could not prove, beyond reasonable doubt, that the turmeric powder, which has been found to be adulterated, had been voluntarily sold by accused Uttam Kumar Sureka to the Food Inspector, no offence, under Section 7 of the PFA Act, can be said to have been committed by either accused Uttam Kumar Sureka, as vendor, or by accused Sajjan Kumar Sureka, as the proprietor of the said grinding mill, and, when an offence is not committed under Section 7, the question of punishment, under Section 16 of the PFA Act, does not arise. 20. Situated thus, it becomes transparent that the conviction of the accused-petitioners, for sale of the turmeric powder, in question, which had been allegedly kept exposed for sale by the accused-petitioners, is not sustainable in the face of the evidence on record and the law relevant thereto. 20. Situated thus, it becomes transparent that the conviction of the accused-petitioners, for sale of the turmeric powder, in question, which had been allegedly kept exposed for sale by the accused-petitioners, is not sustainable in the face of the evidence on record and the law relevant thereto. Therefore, the conviction as well as the consequential sentence, passed against them, need to be interfered with by this Court in exercise of its revisional jurisdiction. 21. In the result and for the foregoing reasons, this revision succeeds. The impugned judgment and order are hereby set aside. The accused-petitioners are hereby held not guilty of the offence charged with and they are acquitted of the same. 22. The bail bonds of the accused-petitioners are cancelled and their sureties stand discharged. Send back the LCR. Petition allowed.