Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1114 (GAU)

Ranjan Das, S/O Rasik Das v. State of Assam

2017-08-16

MIR ALFAZ ALI

body2017
JUDGMENT & ORDER : 1. Heard Ms. A Das, learned counsel for the petitioner and Mr. PS Lahkar, learned Addl. PP, Assam. 2. Both the revision petitioners were convicted by the Chief Judicial Magistrate, Lakhimpur under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, and sentenced to RI for 6 (six) months and fine of Rs.1,000/- with default stipulation. Both the revision petitioners filed two separate appeals challenging the conviction and sentence. The learned Addl. Sessions Judge dismissed both the appeal being Crl. Appeal No.11 (3)/2003 and Crl. Appeal No.12 (3)/2003 and thereby upheld the conviction and sentence awarded by the learned trial Court. 3. Challenging the judgment and order of the learned Addl. Sessions Judge, the revision petitioners Rasik Das and Ranjan Das have filed present Crl. Revision Petition Nos.783/2005 and 782/2005. 4. The prosecution case in a nutshell was that on 22.12.1998, Food Inspector Sri K.K. Doley visited the tea stall under the name and style of M/S Sri Guru Mistanna Vandar situated at N.T. Road, North Lakhimpur. At that time Ranjan Das was managing the affairs of the tea stall, which was owned by accused Rasik Das. After observing the formalities under the Prevention of Food Adulteration Act (in short PFA Act), Food Inspector purchased 600 gms of Boondia laddo (sweet) for the purpose of taking sample, which he packed and sealed as per the provisions of the PFA Act and prepared three samples. One part of the sample was sent to the public analyst. After examination of the sample, the public analyst submitted report, wherein the public analyst opined that the sample of Boondia laddo was artificially coloured with non permitted coal tar colour metanil yellow and hence, it was found to be adulterated and unfit for human consumption. Thereafter, the Food Inspector lodged a complaint with the sanction of the authority. Upon launching the prosecution, the local health authority sent a report of the public analyst to the accused persons informing the report of the public analyst. On the basis of the complaint lodged by the Food Inspector, learned Magistrate took cognizance and issued process. In obedience to the process, both the revision petitioners entered appearance and stood trial. 5. In course of the trial, the complainant side examined two witnesses being the Food Inspector and one employee of the Health Department. On the basis of the complaint lodged by the Food Inspector, learned Magistrate took cognizance and issued process. In obedience to the process, both the revision petitioners entered appearance and stood trial. 5. In course of the trial, the complainant side examined two witnesses being the Food Inspector and one employee of the Health Department. The accused revision petitioners have also examined three witnesses in their defence. On appreciation of evidence, learned Trial Court convicted both the revision petitioners and awarded the sentence as indicated above. On appeal, the learned Addl. Sessions Judge also upheld the conviction and sentence and thereby dismissed the appeal. Hence the present revision petition. 6. Learned counsel for the revision petitioner in both the cases assailed the impugned order of conviction and sentence on the following two grounds: (i) Both the witnesses examined by the prosecution were interested witness. (ii) The public analyst was not examined. 7. Out of the two witnesses examined by the prosecution side, Pw-1 was the complainant himself, being the Food Inspector and the person authorized under the law to collect sample and lodge complaint. Pw-1, Food Inspector being the authorized person under the statute, who launched prosecution, can by no stretch of imagination be said to be an interested witness. 8. Pw-2 was an employee of the Health Department. It has been contended by the learned counsel referring to the cross-examination of this witness that the Joint Director did not give him prior written permission to be witness and therefore, he was interested witness. There is no requirement of law that any employee of the Health Department needs to take prior permission from the authority to become a witness in a criminal proceeding and at the time of taking sample by the Food Inspector. Only because the Joint Director has not given him written order his testimony cannot be brushed aside labeling him to be interested witness. No material has been brought on record to show that this witness, Pw-2 was interested witness. 9. In the above view of the matter, I do not find any force in the submission of the learned counsel that Pws-1 and 2 were interested witnesses and therefore, point (i) is decided against the revision petitioner. 10. With regard to the second point that public analyst was not examined, Section 293 Cr.P.C may be pressed into service. 9. In the above view of the matter, I do not find any force in the submission of the learned counsel that Pws-1 and 2 were interested witnesses and therefore, point (i) is decided against the revision petitioner. 10. With regard to the second point that public analyst was not examined, Section 293 Cr.P.C may be pressed into service. Section 293 of the Cr.P.C reads as under: 293. Reports of certain Government scientific experts. 1. Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. 2. The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. 3. Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. 4. This section applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of- Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director , Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government. (g) any other Government scientific Expert specified by notification, by the Central Government for this purpose. 11. From a plain reading of the provisions of Section 293 of the Cr.P.C, it is abundantly clear that any document being a report by an expert can be read into evidence, without the expert being examined. However, the Court, in its discretion, may examine such expert as to the subject matter of his report. Therefore, non examination of the public analyst, which is not a mandatory requirement of the law, cannot adversely affect the prosecution case, if the same is otherwise found admissible. However, the Court, in its discretion, may examine such expert as to the subject matter of his report. Therefore, non examination of the public analyst, which is not a mandatory requirement of the law, cannot adversely affect the prosecution case, if the same is otherwise found admissible. Looking from another angle, this plea was never raised when the report of the public analyst was produced and admitted in evidence and therefore, cannot permitted to be raised at this stage. 12. The revisional Court is not supposed to interfere with the findings of the facts by the trial Court and the appellate Court, unless such finding is found to be perverse or against the weight of the evidence or the decision of the trial Court suffers from any illegality, impropriety or irregularity. We have already mentioned, that Pw-1 is the authorized person to lodge the complaint. Whether a witness is to be believed or not, or whether the testimony of the witness suffered from any infirmity are all questions of facts relating to appreciation of evidence. When the trial Court as well as the appellate court have found both the witnesses i.e. Pw-1 and Pw-2, to be reliable and inspiring confidence of the Court, this Court, sitting in revision, cannot replace such concurrent findings of the trial Court and the appellate Court by its own finding. 13. Evidently, there is no material to show that the judgment impugned has suffered from any illegality, impropriety or irregularity, nor any material has been brought on record to show that the judgment impugned suffered from perversity. This being the position, I do not find any cogent reason to interfere with the judgment impugned. 14. In view of what has been discussed herein before, both the revision petitions are found devoid of merit and hence dismissed. The revision petitioners are directed to surrender before the learned Trial Court within 2 (two) months and to serve out the sentence. 15. The revision petition stands disposed of accordingly. 16. Send back the LCR.