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2017 DIGILAW 473 (CAL)

Dibakar Paul v. State of West Bengal

2017-05-15

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. Challenging the legality and validity of the judgment and order of conviction dated 30.09.2013 passed by the learned Additional District and Sessions Judge, 1st Fast Track Court in Criminal Appeal No. 102 of 2012 the petitioner herein has preferred this application. The learned First Appellate Court dismissed the appeal and affirmed the order of sentence recorded by the learned Municipal Magistrate 2nd Court Calcutta in Complaint Case No. 14D of 2011 under Section 16(1)a/7 of the Prevention of Food Adulteration Act, hereinafter to be called as PFA Act. 2. The grievance of the petitioner as ventilated in the revisional application is such that the learned trial court as well as the First Appellate Court erred in not appreciating the testimony of prosecution witnesses in its proper perspectives and overlooked the major contradictions appeared in their evidence. The petitioner further contended that statutory compliance of the provision of PFA Act, so far as it relates to the search, seizure and taking of sample and report of public analyst, were not in conformity with the said provisions. 3. Now, the need of the hour is to revisit the prosecution case. Shorn of unnecessary details, the prosecution case in a capsulated form is such that 27.07.2011 at or about 12.30 pm. the concerned food inspector inspected the aforesaid shop (M/s. Ganesh Bhandar) and found the accused person in the shop. After disclosing his identity and purpose of his visit to the petitioner he collected ‘Mustard oil’ which was stored in the said shop for the purpose of sale for human consumption. Out of suspicion he had collected 1,200 grams of said ‘Mustard oil’ out of 6,000 grams and paid Rs.96 to the accused as the value of the sample. After observing the legal formalities in terms of the PFA Act and Rules, he poured the said sample in three equal parts and sent one part of the said sample to the local public analyst for analysis and the rest two parts were sent to local C.M.H.O. After getting the report from the public analyst he found that those were adulterated ‘Mustard oil’ and thereafter he has submitted prosecution report. It further appears from the L.C.R. that the learned Magistrate has recorded the evidence and considered the documents viz. the seizure list, public analyst report and forwarding reports and thereafter convicted the present petitioner. 4. It further appears from the L.C.R. that the learned Magistrate has recorded the evidence and considered the documents viz. the seizure list, public analyst report and forwarding reports and thereafter convicted the present petitioner. 4. That finding of the learned trial court was challenged before the First Appellate Court. The said court also upheld the order of conviction after giving sound reasons therein. 5. The petitioner has challenged the finding of both the courts below herein by which he was convicted and since it is a conviction from the complaint case, it has been registered as revisional application. 6. Normally the High Court is not supposed to re-appreciate the evidence which has been considered by both the courts below. Yet in the interest of effective adjudication and to dispel the doubt this Court has scrutinized the evidence again. 7. On perusal of the evidence of the food inspector, I find that he has seized the adulterated articles in presence of his officers and in presence of a local shop owner. The said seizure list bears the signature of the independent witness also. In course of cross-examination, the said independent witness has admitted his signature but he told that he has put his signature in his shop. Mainly referring his such part of evidence, the petitioner contended that seizure was defective. It would not be out of place to mention that sometimes local witness does not want to incur wrath of his co-neighbours, either out of fear or for some extraneous reason. This independent seizure witness is also a shop owner of a close by shop. But in his evidence he categorically stated that he has mentioned the words ‘sample collected in his presence’ and he wrote it as per direction of the food inspector. His such version does not dismantle the prosecution story. Admittedly, he is the shop owner of a nearby shop. He did not deny his signature. He did not deny the fact it was not seized in his presence. It may be after the seizure is complete the food inspector has procured his signature because his shop is adjacent to the shop of the petitioner. 8. Public analyst report has not been challenged by the petitioner herein. Statutory notice was given to him but he did not respond. The petitioner could not show any reason that the food inspector had any axe to grind against him. 8. Public analyst report has not been challenged by the petitioner herein. Statutory notice was given to him but he did not respond. The petitioner could not show any reason that the food inspector had any axe to grind against him. A public servant discharged his official duty and so unless something is shown regarding his illegal act, or ill motive, his evidence cannot be brushed aside under the carpet. 9. Now-a-days some unscrupulous businessmen adulterate edible items for illegal gain. Those types of ‘Mustard oil’ are hazardous for human consumption and tells upon the health of the consumers at large. Both the courts below scrutinized the evidence in its proper perspectives and this court also does not find any illegality or irregularity in the impugned judgment of the First Appellate Court. At last a submission was made by the petitioner that the prosecution report has been submitted after the amendment of the said Act. It is perhaps needless to say that date of offence is to be considered and not the date of submission of prosecution report. It appears to me that the amendment of the said Act came into force about one month after the date of commencement of the offence. 10. Having regard to the facts and circumstances of the case and on consideration of evidence and documents, I have no hesitation to say that the finding of the First Appellate Court is quite justified. Accordingly, the judgment and order of conviction passed by the First Appellate Court stands affirmed. The criminal revisional application is thus dismissed. The learned trial court shall take all possible steps for execution of the sentence as awarded by the First Appellate Court. 11. Let a copy of this Judgment and the L.C.R. (if any) be sent to the learned trial court for information and strict compliance.