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2017 DIGILAW 1432 (GAU)

Tilak Sarma v. State of Assam

2017-11-13

MIR ALFAZ ALI

body2017
JUDGMENT : 1. Heard Mr. A.M. Bora, learned senior counsel for the petitioner and Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. The legality and propriety of the judgment and order dated 30.7.2008 passed by the learned Sessions Judge, Kamrup in Criminal Appeal No. 56/2007, whereby the petitioner was convicted under section 16 read with section 7 of the Prevention of Food Adulteration Act and sentenced to 6 months simple imprisonment and a fine of Rs. 1,000 in default further simple imprisonment for another 1 month, has been challenged in this revision petition. 3. The revision petitioner was convicted by the learned Chief Judicial Magistrate, Kamrup under section 16 read with section 7 of the Prevention of Food Adulteration Act (TFA Act) and sentenced to imprisonment for 6 months and to pay a fine of Rs. 1,000 with default stipulation. The revision petitioner preferred an appeal before the learned Sessions Judge and the learned Sessions Judge upheld the conviction and sentence of the petitioner by the impugned judgment. Aggrieved by the judgment of conviction and sentence of the learned Sessions Judge, the petitioner has preferred the instant appeal. 4. Mr. A.M. Bora, learned senior counsel for the petitioner submits that the petitioner was a petty grocer. He purchased the Arhar dal, of which, sample was taken by the Food Inspector, from one M/s. New Star Corporation with proper warranty and, therefore, he was protected under section 19(2) of the PFA Act. He produced the warranty before the Food Inspector and also proved during trial. However, the learned trial court erroneously rejected the plea of the accused. The further contention of the learned senior counsel is that the mandatory provisions of section 13(2) of the PFA Act was not complied with, which had the effect of vitiating the entire proceeding and, therefore, the accused/petitioner ought not to have been convicted in the instant case. 5. Learned Addl. P.P., appearing for the state submits that the defence could not produce adequate evidence to get the benefit of section 19(2) of the PFA Act and, therefore, the findings of the learned trial court while rejecting the case of the defence with regard to protection under section 19(2) of the PFA Act cannot be faulted. 6. 5. Learned Addl. P.P., appearing for the state submits that the defence could not produce adequate evidence to get the benefit of section 19(2) of the PFA Act and, therefore, the findings of the learned trial court while rejecting the case of the defence with regard to protection under section 19(2) of the PFA Act cannot be faulted. 6. From the contentions raised by the learned senior counsel appearing for the petitioner and the materials available on record, following two questions fall for consideration in this revision petition. (i) Whether the accused was entitled to the benefit of section 19(2) of the PFA Act? (ii) Whether the trial stood vitiated for non-compliance of section 13(2) of the PFA Act? Point No. 1 7. PW-1 the Food Inspector Sri Bhabendra Nath Pathak stated in his evidence that he took sample from an open bag containing approximately 70 kgs. of Arhar dal. According to him, the accused told that he purchased the said dal from M/s. New Star Corporation with cash memo dated 10.6.2004 containing warranty. The said cash memo which has been proved as Exhibit-3 and also Exhibit-A by the defence, transpires that a bag containing 50 kg. of dal was purchased vide the said cash memo. The petitioner produced another cash memo from the same dealer and proved as Exhibit-B. During cross-examination, the Food Inspector admitted that the cash memo was produced before him at the time of taking sample which demonstrated that 50 kgs. of such Arhar dal was purchased by the said cash memo, Exhibit-3, (Exhibit-A). He also stated in his cross-examination that he did not weigh the bag containing dal and only on assumption he stated that it was approximately 70 kgs. 8. PW-2 also stated in the same line that the accused had produced the cash memo showing purchase of 50 kgs. of Arhar dal from M/s. New Star Corporation. The accused examining himself as DW-1 proved the said cash memo/warranty as Exhibit-A and other cash memo as Exhibit-B. During cross-examination of the petitioner by the accused No. 2, who allegedly issued the Exhibit-3 as well as the Exhibit-B, did not deny the issuance of Exhibit-3 or Exhibit-A and Exhibit-B by M/s. New Star Corporation (accused No. 2). The accused examining himself as DW-1 proved the said cash memo/warranty as Exhibit-A and other cash memo as Exhibit-B. During cross-examination of the petitioner by the accused No. 2, who allegedly issued the Exhibit-3 as well as the Exhibit-B, did not deny the issuance of Exhibit-3 or Exhibit-A and Exhibit-B by M/s. New Star Corporation (accused No. 2). It has also been stated by the accused that the dal, of which sample was taken by the Food Inspector, was preserved and sold in the same condition as it was purchased from the accused No. 2. That the accused purchased Arhar dal 50 kg. and 70 kg. vide Exhibit-A and Exhibit-B from M/s. New Star Corporation was not in dispute, as the accused No. 2, while cross-examining the accused No. 1 did not deny issuance of such warranty for selling of Arhar dal. The only dispute raised in this case is with regard to the quantity of dal contained in the bag at the time of taking sample by the Food Inspector. The warranty shows that the accused produced dal containing 50 kg. and 70kg. When sample was taken by the Food Inspector from the open bag, according to the Food Inspector, the quantity of dal in the bag was approximately 70 kg. It was the case of the prosecution that since the bag from where the sample was taken by the Food Inspector containing 70 kgs, it could not be presumed that the said dal was purchased vide Exhibit-A, or Exhibit-3 warranty. The Food Inspector in his evidence has stated that he did not weigh the bag. He only stated on assumption that it contained only 70 kgs. of dal. When the warranty was not in dispute, and the Food Inspector did not weigh the dal, the evidence of the defence and the warranty proved by the accused cannot be brushed aside on the mere assumption of the Food Inspector. It is to be bom in mind, that the burden of the accused in a criminal case to prove its defence is not that strict, as is required in the case of prosecution. It is sufficient for the accused if it can prove its defence plea by the standard of preponderance of probability. Accused is not required to prove its defence beyond doubt. 9. It is sufficient for the accused if it can prove its defence plea by the standard of preponderance of probability. Accused is not required to prove its defence beyond doubt. 9. The DW-1 stated that Arhar dal, of which sample was taken by the Food Inspector was preserved properly and it was sold in the same condition as he purchased. This evidence of the accused was not controverted. Issuance of warranty by M/s. New Star Corporation in favour of the accused while selling Arhal dal, by the said warranty, was also not in dispute. It is also evident that the Arhar dal was kept properly and was sold in the same condition. 10. A combined reading of the provisions of sections 19, 14 and rule 12A of the PFA Act would show that to avail the protection under section 19(2) of the PFA Act, the accused need to prove that (i) he purchased the food article from a dealer, distributor, etc., by a warranty, (ii) he preserved the food article properly, and (iii) sold the food articles in the same condition as he purchased. The evidence of the prosecution and also the evidence of DW-1 coupled with the documentary evidence of Exhibit-A, Exhibit-B and Exhibit-3 tested in the touch stone of preponderance of probability clearly established that the accused purchased the dal, of which sample was taken, from M/s. New Star Corporation with warranty. The accused also proved by uncontroverted evidence that the dal was preserved properly and the same was sold in the same condition as he purchased it. Thus, the accused in my considered view succeeded in discharging his burden to get the benefit of section 19(2) of the Prevention of Food Adulteration Act and, hence, the point No. 1 is decided in favour of the accused. Point No. 2 11. The specific case of the accused in his examination under section 313, Cr.PC and also in his evidence was that he did not receive notice under section 13(2) of the PFA Act and the report of the Public Analyst. PW-1, the Food Inspector stated in his evidence, that after launching the prosecution, the Local Health Authority sent the notice under section 13(2) of the PFA Act to the accused with a report of the public analyst by Registered Post. He also proved a copy of the notice as Exhibit-19 and the postal receipt as Exhibit-20. PW-1, the Food Inspector stated in his evidence, that after launching the prosecution, the Local Health Authority sent the notice under section 13(2) of the PFA Act to the accused with a report of the public analyst by Registered Post. He also proved a copy of the notice as Exhibit-19 and the postal receipt as Exhibit-20. The Food Inspector stated that the accused received the notice, which of course, has been denied by the accused. Contention of the learned counsel for the accused is that mere sending of notice will not satisfy the statutory requirement of section 13(2) of the PFA Act. Prosecution also needs to prove that the notice was received by the accused. Now the question is, whether the evidence of PW-1 that notice along with the report of the public analyst was sent by registered post would be sufficient discharge of the burden of the prosecution with regard to compliance of the provisions of section 13(2) of the PFA Act. 12. The Apex Court dealing with this aspect of the matter in the State of Orissa v. Gauranga Sahu, 2003 Crl. LJ 3077 (SC) held as under: “It is argued on behalf of the accused that mere dispatch of the report is not enough; and that the prosecution is further obliged to prove that the letter so dispatched had reached the addressee, i.e., the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but also a statutory requirement to be mandatory observed in all the cases. Dispatch of such report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory.” 13. This, court in Sunil Nath v. State of Assam, 2012 (4) GLT 592 relying on the decision of the Apex Court in the case of Gangaram Sahu observed as under: “18. The law, so clearly laid down by the Supreme Court, in Gauranga Sahu (supra), leaves no room for doubt that compliance of section 13(2) will not be treated complete unless the prosecution discharges its additional obligation of proving by adducing cogent evidence, that the notice, issued under section 13(2), has been served upon, and/or received by, the accused.” “30. The law, so clearly laid down by the Supreme Court, in Gauranga Sahu (supra), leaves no room for doubt that compliance of section 13(2) will not be treated complete unless the prosecution discharges its additional obligation of proving by adducing cogent evidence, that the notice, issued under section 13(2), has been served upon, and/or received by, the accused.” “30. Since the object of section 13(2) is really to ‘inform’ the accused that he has the option to get the sample analyzed by the CFL, it is dear that for achievement of this object, the condition precedent is that the notice, under section 13(2), be received by, and/or served upon, the addressee. Hence, if the report of the public analyst is merely sent with a forwarding letter and even if the same is received by the addressee, the provision of section 13(2) will not be complied with, for, mere receipt of the report by the addressee does not fulfill under object of section 13(2) until the ‘information’ is also given to the addressee that he has the option to get the sample analyzed by the CFL.” 14. What, therefore, follows from the ratio laid down by the Apex Court in Gauranga Sahu (supra) and also of this court is that sending of the report of public analyst to the accused is not a mere ritual. The object of giving notice or sending a copy of the report of the public analyst is to inform the accused about his right to get the sample analysed by CFL. Since, the proceeding in a food adulteration case primarily based and conviction of the accused ultimately rests on the report of the public analyst and the statute has provided a valuable right to the accused to get the sample reanalysed by CFL, deprivation of the accused of such valuable right to get the sample analysed by CFL would certainly prejudice the accused and thereby vitiate the entire prosecution. What is apparent from the ratio laid down by the Apex Court and also by this court is that mere proving the sending of notice under section 13(2) of the PFA Act is not sufficient. Prosecution is also under obligation to prove the statutory requirement, that the report indeed reached the addressee or received by the accused, so as to, inform him about the right to get the sample analysed by CFL. 15. Prosecution is also under obligation to prove the statutory requirement, that the report indeed reached the addressee or received by the accused, so as to, inform him about the right to get the sample analysed by CFL. 15. Although the postal receipt has been proved to show that the notice was sent, no further evidence was adduced to prove the service/receipt of the notice. Prosecution could have proved the acknowledgement card. In absence of the acknowledgement card, the postal peon who served the notice could have also been examined by the prosecution to establish that notice was indeed received by the accused. From the evidence and materials on record, it appears that the prosecution has not endeavoured to adduce any such evidence to prove the service or receipt of the notice by the accused. In absence of such evidence, mere statement of the Food Inspector that it was received, is not sufficient to discharge its liability/obligation under section 13(2) of the PFA Act. When the prosecution has failed to prove by adducing adequate evidence that the notice was served and received by the accused and thereby he was duly informed of his right to get the sample analysed by the Central Food Laboratory, such failure of the prosecution, certainly resulted in deprivation of the accused of his right to get the sample analysed by the Central Food Laboratory. 16. Failure of the prosecution to duly comply with the statutory provisions which is required to be mandatorily followed certainly caused prejudice to the accused and vitiated the entire prosecution. Hence, the point No. 2 is also decided in favour of the accused. 17. In the teeth of the foregoing discussions, the revision petition is allowed. The conviction and sentence of the accused appellant is set-aside. 18. Send back the LCR.