Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 497 (GAU)

Binod Kumar Sharma v. State of Assam

2016-06-02

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : Paran Kumar Phukan, J. This revision is directed against the judgment and order dated 20.12.2002 passed by the learned Additional Sessions Judge No.2, Sibsagar in Criminal Appeal No.10(2) of 2000 affirming the judgment and order dated 31.03.2000 passed by the learned Sub-Divisional Judicial Magistrates, Sibsagar in C.R. Case No. 57 of 1998 convicting the accused-petitioner under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (for short, "the PFA Act") and sentencing him to simple imprisonment for 6(six) months and to pay fine of Rs. 1,000/-, in default to simple imprisonment for another 1(one) month. 2. The factual background of the case, in a nutshell are that on 18.12.1997, Food Inspector Shri N.C. Goswami collected sample of Moong dal from the grocery shop of the accused-petitioner situated at Nazira. After observing all the formalities of the PFA Act and Rules, part of sample was sent to Public Analyst for examination. The Public Analyst, in his report dated 22.01.1998 opined that the sample of Moong dal (food grain) was artificially coloured with coal-tar colour tartrazine, which is not permitted to be used in Moong dal. On receiving the report, the Food Inspector submitted Offence Report against the accused-petitioner after obtaining sanction from the competent authority. 3. During the trial, prosecution examined the Food Inspector and the peon, who accompanied him to the shop of the accused-petitioner at the time of collection of sample. The accused-petitioner denied having committed any offence, but declined to adduce defence evidence. 4. The learned SDJM found the accused-petitioner guilty under Section 16 read with Section 7 of the PFA Act and convicted and sentenced him, accordingly, as stated above, hence this revision. 5. I have heard Mr. S.S. Sarmah, the learned Senior Counsel appearing on behalf of the accused-petitioner and Mr. B.J. Dutta, the learned Additional Public Prosecutor, Assam. 6. Perused the impugned judgment of the learned court below. 7. Mr. Sarmah, the learned Senior Counsel submitted that there has been total non-compliance of the mandates of PFA Act and Rules by the Food Inspector while collecting the sample and that the accused-petitioner was not present at the time of collection of the sample. 6. Perused the impugned judgment of the learned court below. 7. Mr. Sarmah, the learned Senior Counsel submitted that there has been total non-compliance of the mandates of PFA Act and Rules by the Food Inspector while collecting the sample and that the accused-petitioner was not present at the time of collection of the sample. It is further submitted that there being no evidence on record to hold that the accused-petitioner was the proprietor of the shop or that he sold the sample to the Food Inspector, the court was not justified to convict the accused-petitioner. 8. Mr. Dutta, the learned Additional Public Prosecutor in controversion submitted that the Food Inspector has complied with all the formalities and fulfilled the requirements of the PFA Act and Rules while collecting the sample from the shop of the accused-petitioner. It is also submitted that although the accused-petitioner has taken the plea of alibi, he has failed to discharge the burden of proving the same. He strenuously submitted that there has been concurrent finding of facts arrived at by the courts below and this revisional court has no reason to interfere with the concurrent findings arrived at by the courts below. 9. In the backdrop of the aforesaid contentions, I have carefully gone through the evidence on record and the impugned judgment of the learned courts below. 10. It is a settled proposition that ordinarily, it is not open to the High court to interfere with the concurrent findings of facts of the courts below, especially by re appreciating the evidence in its revisional jurisdiction, State of Karnataka v. Appa Balu Ingale, reported in 1993 CRLJ 1029 (SC). However, if it is found that on coming to the finding the learned trial court omitted to consider any material evidence or that any evidence was misread, the revisional court can interfere only if it is found that the findings have been arrived at without properly considering the evidence on record or without applying the principles of law correctly. 11. On scrutiny of the evidence of the Food Inspector and the peon, who accompanied him and who have examined as PW-1 and PW-2, respectively, it is found that the accused-petitioner himself had sold the sample of Moong dal to the Food Inspector. 11. On scrutiny of the evidence of the Food Inspector and the peon, who accompanied him and who have examined as PW-1 and PW-2, respectively, it is found that the accused-petitioner himself had sold the sample of Moong dal to the Food Inspector. Even though he claimed that he was not present and he had never sold Moong dal to the Food Inspector, but the plea of alibi taken by him is not found to be based on truth. No evidence has been adduced by him to prove the plea. The plea involves a question of fact and when both the courts below concurrently found that fact against the accused, this revisional court cannot upset the concurrent findings. Moreover, the evidence of PW-1 reveals that the accused-petitioner introduced himself as the proprietor of the shop and the other employees present in the shop also identified him to be the proprietor. In Form-VI notice prepared by the Food Inspector, the accused-petitioner himself put his signature and the acknowledgement by the vendor receipt Ext-2 also reveals that the accused-petitioner put his signature in Ext-2 acknowledging the price of the Moong dal on being tendered by the Food Inspector. The prosecution has also produced and proved the signature of the accused-petitioner on the sample. PW-2, who was present and who accompanied the Food Inspector to the shop fully corroborated the evidence of PW-1. There is no reason to disbelieve their evidence. When there is documentary evidence being Ext-1 and Ext-2, which were prepared by a public servant in the course of his duty, as such public servant and those documents having been proved by the Food Inspector, PW-1 and the peon, PW-2 and there having no reason to disbelieve their evidence, the only inference to be drawn is that the accused-petitioner himself was present at the time of collection of sample and he sold the same to the Food Inspector and it was the accused-petitioner, who had acknowledged the price of the Moong dal on being tendered to him by the Food Inspector. 12. In view of all these oral and documentary evidence, it is abundantly clear that the accused-petitioner was the proprietor of the shop and he sold the Moong dal to the Food Inspector. The accused-petitioner himself failed to prove the plea of alibi taken by him although the burden lies on him to prove the plea. 12. In view of all these oral and documentary evidence, it is abundantly clear that the accused-petitioner was the proprietor of the shop and he sold the Moong dal to the Food Inspector. The accused-petitioner himself failed to prove the plea of alibi taken by him although the burden lies on him to prove the plea. The statement of the accused-petitioner under Section 313 CrPC is not enough to brush aside the evidence tendered by the Food Inspector and the peon and concurrent findings of facts arrived at by the courts below. 13. Mr. Sarmah also asserted that there has been non-compliance of Section 10(7) of the PFA Act and the trial got vitiated for such non-compliance. The evidence of the Food Inspector unambiguously proved that he tried to procure the presence of independent witnesses, but none agreed to remain as witness and as such he requested the peon to remain as a witness. The Offence Report, Ext-16 and the Inspection Report, Ext-11 prepared by the Food Inspector also reveal that Food Inspector requested several persons including Samsul Ali and Ikram Ahmed to remain as witnesses at the time of taking sample, but none of them agreed, which compelled him to request PW-2 to remain as a witness. There is to disbelieve his evidence, which is corroborated by PW-2. I find no reason to discard their evidence and it cannot be said that there has been non-compliance of Section 10(7) of the PFA Act. 14. A feeble attempt has been made by the defence to show that there has been non-compliance of the mandates of Section 13(2) of the PFA Act, but the accused-petitioner himself in his defence statement admitted having received a notice from the court informing that Moong dal collected from his shop was found to be adulterated. But no step has been taken by him for getting the remaining part of the sample reanalyzed in the Central Food Laboratory. Moreover, this plea was not taken by the defence during the trial of the case and at the time of argument before the learned trial court also no argument was advanced by the learned counsel for the accused-petitioner before the learned trial court. Moreover, this plea was not taken by the defence during the trial of the case and at the time of argument before the learned trial court also no argument was advanced by the learned counsel for the accused-petitioner before the learned trial court. Although the accused-petitioner denied having received any notice under Section 13(2) of the PFA Act in his statement, but he admitted that he has received a paper along with a report of the Public Analyst and this being the admitted position, it cannot be said that he had not received the notice under Section 13(2) of the PFA Act. Consequently, the plea is not found to be sustainable in law. 15. Inviting my attention to the report of the Public Analyst, Mr. Sarmah, learned Senior Counsel submitted that there is in the report to show that use of the artificial colourant was injurious to health. The Public Analyst's report, Ext-13 clearly reveals that Moong dal was artificially coloured with coal-tar tartrazine which is not permitted to be used in Moong dal (food grains) as per Rule 29 of the PFA Act, 1954 and Rules, 1955. Since the colourant is not permitted to be used it must be presumed that it is injurious to health. Although it is not mentioned to be injurious to health in the report, it does not follow that because it is not mentioned to be injurious, it is non injurious. Consequently, I do not find any force in the submissions of Mr. Sarmah in this regard. 16. Having regard to the submissions advanced by the learned counsel appearing for the parties and having considered the evidence on record and the impugned judgment of the learned courts below, there is no doubt that the accused-petitioner was the proprietor of the shop and he was present at the time of collecting the sample by the Food Inspector. He failed to discharge the burden of proving the plea of alibi taken by him and no evidence has been adduced in support of the plea. There is to show that there has been any violation of the provisions of the PFA Act and Rules by the Food Inspector. 17. He failed to discharge the burden of proving the plea of alibi taken by him and no evidence has been adduced in support of the plea. There is to show that there has been any violation of the provisions of the PFA Act and Rules by the Food Inspector. 17. I do not find any infirmity in the judgment passed by the learned Additional Sessions Judge, Sibsagar affirming the judgment of the learned trial court convicting the accused-petitioner under Section 16 read with Section 7 of the PFA Act. Resultantly, the revision stands dismissed. 18. Send down the LCR to the learned court below. 19. The accused-petitioner is directed to surrender before the learned trial court within 30 (thirty) days from today to serve out the sentence.