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2016 DIGILAW 468 (CAL)

Mahavir Agency v. State of West Bengal

2016-06-08

SANKAR ACHARYYA

body2016
JUDGMENT : Sankar Acharyya, J. This revisional application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C.) has been filed on 09.01.2014 by two convict petitioners M/s Mahavir Agency and its proprietor Bhikham Chand Pugalia for setting aside and/or quashing the judgment dated 26th June, 2009 passed by learned Additional Sessions Judge, 4th Fast Track Court, City Sessions Court, Bichar Bhawan, Calcutta in Criminal Appeal no. 106 of 2007 rejecting the appeal of the petitioner and confirming the judgment and order dated 16.10.2007 of conviction and sentence of the present petitioners to suffer rigorous imprisonment of two years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment of three months awarded by learned Senior Municipal Magistrate, Calcutta holding the present petitioners guilty of the charges under Sections 16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration Act (in short P.F.A. Act) in Case no. 16 D of 1999. Delay in filing this revisional application has been condoned by Hon'ble Single Judge (R.K. Bag - J.) on 04.04.2014 in CRAN 73 of 2014. 2. Inter alia, in the revisional application, the petitioners have contended that in spite of various infirmities in the prosecution case and discrepancies in the evidence of the witnesses learned Senior Municipal Magistrate passed the judgment of conviction and sentence but in the appeal learned Additional Sessions Judge did not consider the written arguments of the petitioners and erred in law and facts in the impugned judgment. The impugned judgment is bad in law and facts and liable to be set aside. At the time of hearing learned counsel for the petitioners advanced his arguments that the petitioners were illegally made accused in the trial Court and that surprisingly the persons who were made accused initially were discharged and on their prayer these petitioners were made accused and convicted. According to him, report of chemical analyst is not sufficient to prove the article in question is adulterated food. He cited a decision of this High Court in the case of Lalit Kumar Gupta v. State of West Bengal and Another reported in (1996) 1 CLJ 10 and a decision of the Hon'ble Supreme Court of India in the case of Municipal Corporation of Delhi Vs. Kacheroo Mal reported in AIR 1976 SC 394 . 3. He cited a decision of this High Court in the case of Lalit Kumar Gupta v. State of West Bengal and Another reported in (1996) 1 CLJ 10 and a decision of the Hon'ble Supreme Court of India in the case of Municipal Corporation of Delhi Vs. Kacheroo Mal reported in AIR 1976 SC 394 . 3. Learned counsel for the opposite party no. 2 Food Inspector of the Kolkata Municipal Corporation submitted that the judgment and order of conviction and sentence passed by learned Senior Municipal Magistrate and the impugned judgment confirming such conviction and sentence do not suffer from any infirmity. He advanced his arguments that undisputedly the petitioner no. 1 is distributor of manufacturer namely, Kothari Products Limited and it sold the 'PAN PARAG' in question to 'Madhu Bon', the shop of the persons who were initially implicated as accused as vendors and on their information and prayer they were rightly discharged and the petitioners were made accused in view of the provisions under Section 19 (2) (a) read with Section 20 A of the P.F.A. Act. He also urged that prosecution successfully discharged its burden of proof. 4. In this revisional application legality, propriety and correctness of concurrent findings of trial Court and appellate Court regarding conviction and sentence of the petitioners are matters under consideration. At the very outset I like to mention that on scrutiny on the materials of lower Court records I do not find any written arguments of the petitioners. As such, contention of the petitioners made in paragraph - 19 of the revisional application to the effect that learned Additional District and Sessions Judge did not consider the written argument of the petitioner and never bother and/or feel it necessary to consider the same and by avoiding the written argument confirmed the order of learned Magistrate is unwarranted. In the matter of legality of impleading the petitioners as accused in trial Court the arguments of learned counsel for the opposite party no. 2 is accepted and I find that on the basis of prayer of the persons who were made accused in the complaint as vendors of adulterated food the petitioners of this case were rightly made accused under Section 20 A read with Section 19 (2) (a) of the P.F.A. Act. 5. 2 is accepted and I find that on the basis of prayer of the persons who were made accused in the complaint as vendors of adulterated food the petitioners of this case were rightly made accused under Section 20 A read with Section 19 (2) (a) of the P.F.A. Act. 5. It is pertinent to note that after appearance of the petitioners in the trial Court, on their prayer the seized sample of 'PAN PARAG' was examined in Central Food Laboratory also and there on scientific analysis the said 'PAN PARAG' was proved as adulterated food. In the certificate on such analysis in Central Food Laboratory, which has been marked exhibit- 11 during trial, presence of 'Ash insoluble in dilute HCL' content 1.9 % in the seized material was confirmed with opinion of the Director of Central Food Laboratory that the sample does not conform to the standards laid down for PAN MASALA under the PFA Act and Rules thereof with observation that Ash insoluble in which HCL content exceeds the maximum limit of 0.5 % on dry weight basis. In exhibit-7 the seized 'PAN PARAG' has been described as found adulterated in analysis. 6. The Hon'ble Apex Court has held in the case of Kacheroo Mal (Supra), "The opinion of the Public Analyst who examines and analyses the sample, as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence a Public Analyst is supposed to be specially skilled in the science of dietetics. As an expert in the science, he is competent to opine and testify about this fact". It was further held, "The report of the Public Analyst, including his opinion on this point, is per se evidence by virtue of Section 13 of the Act. But this does not mean that this ipse dixit would be conclusive and binding on Court. To treat it so, would be to leave the determination of the guilt of the accused to the whims and fancies of the Public Analyst. The Act would not countenance such abdication of its judicial function by the Court, leaving the case as it were - to be tried by the Analyst. It is for the Court to weigh his opinion and reach its own finding". 7. In the case under consideration it is well proved that the sample 'PAN PARAG' was examined twice. The Act would not countenance such abdication of its judicial function by the Court, leaving the case as it were - to be tried by the Analyst. It is for the Court to weigh his opinion and reach its own finding". 7. In the case under consideration it is well proved that the sample 'PAN PARAG' was examined twice. Once at the instance of prosecution in the laboratory of Public Analyst for Calcutta Municipal Corporation and on examination the Public Analyst reported it as adulterated with observation that in the sample ash insoluble in dilute Hydrochloric Acid 1.9 % weight (on dry basis) was found (vide exhibit- 7). Second examination of the sample was done at Central Food Laboratory at CFTRI, Mysore on prayer of present petitioners made in trial Court and in that examination also 1.9 % ash insoluble in diluted Hydrochloric Acid on dry weight in the sample 'PAN PARAG' was found present which exceeds the maximum limit of 0.5 % on dry weight basis (vide exhibit- 11). In exhibit- 7 the sample 'PAN PARAG' has been said to be adulterated. It implies the Public Analyst termed the sample adulterated in view of the definition of 'adulterated' under Section 2 (ia) (k) of the PFA Act. In order to rebut the said opinion of competent analysts they might have adduced evidence to prove the insoluble ash found in the sample of 'PAN PARAG' is not injurious to health or such percentage of insoluble ash is permissible in law for human consumption in respect of any other food so that the Court might have treated the certificate of Public Analyst is dogmatic. The petitioners took no step during trial to prove it. The ratio of the decision reported in AIR 1976 SC 394 (Supra) does not fortify the petitioners to improve their case. 8. In the case of Lalit Kishore Gupta reported in (1996) 1 CLJ 10 (Supra) determining question was whether mineral oil is absolutely prohibited from being used as foodstuff in connection with the matter of adulteration due to presence of mineral oil in black-pepper (whole). Referring to example of permissible presence of mineral oil in foodstuff the Hon'ble Judge was pleased to observe that mineral oil 'food grade' is not totally prohibited as a foodstuff. Referring to example of permissible presence of mineral oil in foodstuff the Hon'ble Judge was pleased to observe that mineral oil 'food grade' is not totally prohibited as a foodstuff. Said decision also does not improve the case of the petitioners due to their failure to establish permissibility of presence of 1.9 % or more ash insoluble in diluted Hydrochloric Acid on dry weight in any food stuff. 9. Learned Senior Municipal Magistrate considered all materials in minute details in his judgment which may be compared with a mirror of the judicial record. Having considered the facts, circumstances and evidence of both the parties and the concurrent findings of guilt of the petitioners in the trial Court and the Court of appeal I am not satisfied to differ with the findings of said Courts. Therefore, this revisional application is liable to be dismissed and it is dismissed. 10. Interim order, if any, stands vacated. 11. A copy of this judgment along with the Lower Court Records be sent to the Court of appeal below from the department. 12. Urgent Photostat certified copy of this judgment, if applied for, be given expeditiously to the parties or their advocates on record in compliance of usual formalities. Revisional application is dismissed.