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2013 DIGILAW 852 (GAU)

State of Assam v. Sadhan Sen

2013-12-06

INDIRA SHAH

body2013
Dr. Indira Shah, J.- This is an appeal against the judgment and order dated 03.05.2007 passed by the learned Sessions Judge, Darrang at Mangaldoi, in Criminal Appeal No. 27(D-4) of 2006, whereby the conviction of the respondent-accused under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and sentence of simple imprisonment for 6 months with fine of Rs. 1000/- in default, further simple imprisonment for one month passed by the learned SDJM in CR Case No. 913/2005 was set aside and respondent-accused was acquitted. 2. I have heard Mr. B. J. Dutta, learned Addl. Public Prosecutor appearing on behalf of the appellant/State of Assam, and Mr. C. Goswami, learned counsel appearing for the respondent-accused. 3. The prosecution case, in brief, is that: On 08.08.2005 at about 2.00 P.M., the Food Inspector of Udalguri (PW.1) along -with grade-TV employee of the office of the Joint Director of Health Services, Udalguri namely Sri. Bhabendra Deka (PW.2) visited the premises of M/s. Sadhan Sen at daily bazaar Rowta and inspected the food items kept there for sale for human consumption. That he collected the sample of suspected “Khesari Dal” from the stock of about 30Kgs stored in a open poly-bag for sale for human consumption. He purchased the sample of “Khesari Dal” weighting 1 and ½ Kg on payment of Rs. 24/- after issuing notice in Form-VI to the vendor Sri. Sadhan Sen. The sample of 1.500 kg of “Khesari Dal” was then divided into 3 equal parts and each part was packed, fasten and sealed as per provision of Rules of the Prevention of Food Adulteration Rules, 1955 (in short, the PFA Rules). One of the samples was sent to the Public Analyst, Govt. of Assam, along with a copy of memorandum for analysis and the remaining two samples were delivered to the local Health Authority, Udalguri along with the memorandum. 4. The Public Analyst, Government of Assam, submitted the report confirming that the sample was “Khesari Split Dal” and opined that it is a prohibited item which is not allowed to sell as per Rule 44 of the PFA Rules. 5. After obtaining necessary sanction to prosecute the accused, complaint was lodged against the accused. Cognizance under Section 7/16 of PFA Act was taken by the trial Court. The accused pleaded guilty to the offence explained to him under Section 7/16 of the PFA Act. 6. 5. After obtaining necessary sanction to prosecute the accused, complaint was lodged against the accused. Cognizance under Section 7/16 of PFA Act was taken by the trial Court. The accused pleaded guilty to the offence explained to him under Section 7/16 of the PFA Act. 6. The prosecution examined only two witnesses in support of its case. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied that he had kept any “Khesari Dal” in his shop or any sample of “Khesari Dal” was collected by the Food Inspector from his shop. However, admitted his signature on the Form-VI as well as in the acknowledgement. The learned trial Court convicted the accused and sentenced him as stated earlier. However, in the appeal, the learned appellate Court held that the prosecution could not prove that the “Khesari Dal”, in question, was kept for sale for human consumption. The sample was not taken in accordance with Section 10(2) of the PFA Act, which stipulates that while purchasing the sample of primary. Food Inspector must make his intention clear to the vendor that he was taking the sample of primary food concerned assuming the same to be intended to sell as such food. The appellant Court also held that the report of Public Analyst does not contain any certificate to the effect that he compared the seal found on the container with the subsequent impression of the seal supplied to him by the Food Inspector and found the same intact and Unbroken. 8. It is submitted by the learned counsel for the appellant that there was categorical assertion of PW.2 that the accused told the Food Inspector that “Khesari Dal” was kept for sale for human consumption but the appellate court erroneously held that the evidence of PW.2 is not admissible. Learned appellate Court also observed that no question was put to the accused while recording his statement under Section 313 Cr.P.C. that the “Khesari Dal” was kept for sale for human consumption which is perverse as the accused also told that he had kept “Khesari Dal” for sale for human comsumption, which he denied and alleged that no “Khesari Dal” was kept in his shop premises. 9. 9. It is submitted by the learned counsel for the respondent that although under Rule 44-A of PFA Rules, “Khesari Dal” is prohibited item but the possession or cultivation of “Khesari Dal” is not prohibited. Therefore the possession of “Khesari Dal” without any proof that it was kept for sale for human consumption is not an offence. In the cited case of State of Assam vs. Rakesh Ch. Paul, reported in 7990 (2) GLR 389, it was held that storage of an article of food for a purpose other than sale for human consumption would not construe an offence. 10. On a careful scrutiny of the evidence on records, it appears that PW. 1, the Food Inspector stated that he visited the shop premises of the accused. He asked the accused after inspecting the food item exhibited for sale, wherefrom he had purchased “Khesari Dal” but the accused could not produce any cash memo nor could he gave any satisfactory reply. Thereafter, PW.l served the notice in Form-VI wherein the vendor-accused as well as the witness (PW.2) put their signatures. 11. On receipt of the notice, the accused vendor weighed 1.500 kg. “Khesari Dal” and on receipt of Rs. 24/-, price of the dal sold to the Food Inspector, he acknowledged the receipt by putting his signature on the acknowledgment. The signature of the accused vendor in Form-VI as well as in the acknowledgment receipt was not disputed during the cross-examination. In Form-VI, it was clearly mentioned that the sample of “Khesari Dal” weight 1.500 kg was taken from the stock of 30 kgs in open poly-bag kept for sale for human consumption. The accused vendor put his signature in English. No plea was taken either in cross-examination or in the statement recorded under Section 313 Cr.P.C. that the accused vendor could not understand or had not gone through the content of Form-VI. Simple defence plea was that the “Khesari Dal”, in question, was not kept in his shop premises. 12. PW.2, in his cross-examination, specifically stated that the Food Inspector asked the vendor whether the “Khesari Dal” was kept for sale for human consumption and the vendor replied that yes, it was kept for sale for human consumption. The aforesaid piece of evidence of PW.2 was not, however, challenged during his cross-examination. Only a suggestion was given that no “Khesari Dal” was kept in the shop premises. The aforesaid piece of evidence of PW.2 was not, however, challenged during his cross-examination. Only a suggestion was given that no “Khesari Dal” was kept in the shop premises. The Form-VT itself indicates that after ascertaining the fact that the “Khesari Dal” was kept for sale for human consumption, Form-VI notice was issued. 13. When the prosecution could establish that the sample in question was sold to the Food Inspector and the food item “Khesari Dal” was kept for sale for human consumption, the burden shifts on the accused to establish that no “Khesari Dal” was kept in his shop premises or the “Khesari Dal” was kept there not for sale for human consumption but the accused failed to revert the prosecution evidence. 14. There is no dispute that although as per Rule 44-A, the sale of “Khesari Dal” is prohibited, the cultivation of “Khesari Dal” or sale of its products as cattle fodder i.e. food for animal and birds, have been allowed. 15. So far as sentence for violation of Rule 44-A of the Rules is concerned, first proviso to Section 16 of the Act says that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to 2 years and with fine, which shall not be less than Rs. 500/-. 16. Therefore, a discretion has been given to the Court to impose minimum sentence prescribed in the first and second proviso to Section 16 of the Act for violation of any Rules. In the case of Shamsul Hague vs. State of Assam, reported in PFA 1988 (II) page 23, the accused suffered for pendency of the case for 9 years, he had undergone imprisonment for 21 days and it was held that the sentence may be reduced to the period already undergone by him and he need not pay the fine. While reducing the sentence, His Lordship relied on the case State of Maharashtra vs. Baburao, 1984(2) FAC 265, wherein imposition of minimum penalty for 3 months imprisonment was held to be covered by first proviso to Section 16(1) of the Act. 17. Considering all, while setting aside the judgment passed by the appellate Court, the conviction of the accused/respondent by the trial Court is upheld. 17. Considering all, while setting aside the judgment passed by the appellate Court, the conviction of the accused/respondent by the trial Court is upheld. However, the sentence of simple imprisonment for 6 months with fine of Rs. 1000/- is reduced to 3 months with fine of Rs. 500/- in default of payment of fine, further simple imprisonment for 15 days. 18. With the above modifications, the appeal is partly allowed. The accused/respondent shall surrender before the learned trial Court to serve out the sentence.