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2018 DIGILAW 1254 (GAU)

BABULAL AGARWAL v. STATE OF ASSAM

2018-08-27

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. The revision petitioner was convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration (PFA) Act, by the learned Chief Judicial Magistrate, Kamrup, in Case No.1785c/1994. The appeal filed by the petitioner was dismissed by the impugned judgment dated 29.12.2008 in Criminal Appeal No.25/2007. 2. The Food Inspector (PW-1) visited the shop under the name & style of Puspa Trading Corporation and collected sample of Moth dal, suspecting the same to be adulterous after complying the provisions of PFA Act and Rules. The sample was sent to public analyst for examination and the public analyst submitted a report proved as Exhibit-16, stating that the sample of Moth dal was artificially coloured with coal-tar colour tartrazine, which were not permitted to be used in Moth dal (food grain). The proprietor of M/S Puspa Trading Corporation informed the Food Inspector that the Moth dal, sample of which was collected, was purchased from M/s Glow White Industries, Jaipur and also produced a cash memo with warranty. Accordingly, the prosecution was launched against the proprietor of the business firm Puspa Trading Corporation as well as against the present petitioner, purportedly as sole proprietor of the Firm M/s Glow White Industries, Jaipur. The present petitioner raised a plea before the learned trial Court, that M/s Glow White Industries was not a proprieterial firm, and it was a partnership firm, of which, he was a sleeping partner. The petitioner further stated that he was not associated with the day to day activities of the partnership firm. However, the plea of the petitioner was rejected both by the learned trial Court as well as the appellate Court and convicted the petitioner holding him as the sole proprietor of the Firm M/s Glow White Industries. 3. Mr. OP Bhati, learned counsel for the petitioner and Ms. S Jahan, learned Addl. PP, Assam, were heard. 4. The sole question raised in this revision petition is whether M/s Glow White Industries was a proprietorial Firm and the present petitioner was the sole proprietor or it was a partnership firm, of which the petitioner was a partner. 5. 3. Mr. OP Bhati, learned counsel for the petitioner and Ms. S Jahan, learned Addl. PP, Assam, were heard. 4. The sole question raised in this revision petition is whether M/s Glow White Industries was a proprietorial Firm and the present petitioner was the sole proprietor or it was a partnership firm, of which the petitioner was a partner. 5. During the course of evidence the complainant examined the Food Inspector and also proved certain documents being Exhibit-22 to 28, which were correspondence between officials of Health Department, Kamrup as well as the Directorate of Industries, Jaipur and also the officials of Health Department, Jaipur. Pursuant to the correspondence through Exhibit 24 & 25, the Joint Director Health Department, Jaipur forwarded a letter purportedly written by the son of the petitioner, stating that the petitioner was the owner of the Glow White Industries, which was proved as Exhibit-27. The petitioner also examined one witness as DW1, who proved the partnership deed as Exhibit-A. The DW-1, who was employee of M/s Glow White Industries, deposed on oath, that M/s Glow White Industries was a partnership Firm, which was running from 1992 and there were five partners of the firm including the present petitioner. He also stated that the present petitioner was not in charge of the day to day activities of the firm. He further stated that he was working as accountant of the firm for about 9 (nine) years. During crossexamination of DW-1, it was elicited that there was no mention in the partnership agreement as to the date of effect or commencement of the partnership firm. Basically, relying on the Exhibit-27, the letter purportedly written by the son of the petitioner stating that the petitioner was the owner of the firm M/s Glow White Industries, learned trial Court convicted the petitioner. 6. Learned counsel for the petitioner submits that Exhibit-27 was a letter written by a private person and as such, no reliance could be placed on it without proving the same as per requirement of law. apparently, neither the author of Exhibit-27 nor any one acquainted with the handwriting or signature in Exhibit-27 was examined as a witness, however, it was tendered in evidence through PW-1, the Food Inspector, who stated in his evidence that neither the Director Health Services who forwarded Exhibit-27, nor the author of Exhibit-27 was examined. apparently, neither the author of Exhibit-27 nor any one acquainted with the handwriting or signature in Exhibit-27 was examined as a witness, however, it was tendered in evidence through PW-1, the Food Inspector, who stated in his evidence that neither the Director Health Services who forwarded Exhibit-27, nor the author of Exhibit-27 was examined. He also admitted that he did not know the signature of the author of Exhibit-27. PW-1 further stated he had no knowledge about the signature in Exhibit-28. The contention raised by the learned counsel for the petitioner was that Exhibit-27 having not been proved in accordance with Section 67 of the Evidence Act, no reliance could be placed on it. 7. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as is alleged to be in that person's handwriting must be proved to be his handwriting. Evidently, the author of Exhibit27 was not examined. Exhibit-27 was admittedly sent by the Director Health services, Jaipur, who was also not examined. It is also admitted by PW-1, who tendered Exhibit-27 in evidence, that he had no personal knowledge as to who had written or signed Exhibit-27. It is now well settled principle that mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Apparently, the Exhibit-27 was not proved in accordance with law. However, learned trial court took a presumption under Section 114 illustration (e) of the Evidence Act, that the Exhibit-27 having been received in course of official transaction, there was a presumption as to its genuineness. 8. The illustration (e) of Section 114 of the Evidence Act provides that "Court may presume that judicial or official acts have been regularly performed. Apparently, Exhibit-27 was a letter written by a private person and it was not a document prepared in the course of official function and as such, there could not be a presumption under Section 114(e), in respect of Exhibit-27. Therefore, unless such private document is proved as per requirement of law, it cannot be read in evidence, nor there can be any presumption under Section 114 of the Evidence Act as to its genuineness. 9. Therefore, unless such private document is proved as per requirement of law, it cannot be read in evidence, nor there can be any presumption under Section 114 of the Evidence Act as to its genuineness. 9. From Exhibit-A, the partnership deed proved by the accused and the evidence of DW-1, it appears that the M/s Glow White Industries was a partnership firm of which the present petitioner was a partner. Apparently, Exhibit-A was neither challenged nor controverted and the testimony of DW-1 also remained more or less unshaken. Exhibit-A, the partnership deed which was attested by notary and proved by DW-1, shows that the partnership firm was also registered under the Societies Registration Act. The learned trial Court as well as the appellate Court discarded the Exhibit-A, on the ground, that no date of commencement of the partnership firm was mentioned in the Exhibit-A. When the Exhibit-A partnership firm was not challenged, it could not be discarded merely for the reason that no specific date of commencement of the partnership firm was mentioned in the deed, reason being that, in absence of any specific date, it should be presumed that it took effect from the date when it was entered into or executed. By discarding Exhibit-A for the reasons stated above, both the Courts took the view, that the accused failed to establish that the M/s Glow White Industries was a partnership firm and convicted him, holding that M/s Glow White Industries was a proprietorial firm and the petitioner was the sole proprietor. 10. It is to be borne in mind that the standard of proof on the part of the accused to establish the defence plea and that of the prosecution in the criminal case is different. The prosecution needs to prove the case by the standard of proof beyond reasonable doubt. However, the burden of the accused or the defence is not that strict as in the case of prosecution, inasmuch as, the prosecution must prove the guilt of the accused beyond reasonable doubt, whereas, standard of proof so far the defence plea is concerned on the part of the accused is not higher than that of preponderance of probability. If the accused can adduce some evidence to probabalise his defence, the same is sufficient, but the prosecution needs to prove each and every ingredient of the offence by evidence beyond reasonable doubt. If the accused can adduce some evidence to probabalise his defence, the same is sufficient, but the prosecution needs to prove each and every ingredient of the offence by evidence beyond reasonable doubt. In the instant case, evidently the accused proved the partnership deed which was not controverted. The accused also examined a witness, who stated that M/s Glow White Industries was a partnership firm and there were five partners including the present petitioner and such evidence remained unshaken. 11. So far the truthfulness and veracity of the evidence is concerned, there cannot be two standard and evidence of both prosecution and defence has to be weighed by the same scale. In the present case, the evidence as indicated herein above demonstrated that the defence successfully discharged its burden to prove at least in the touch stone of preponderance of probability that M/s Glow White Industries was a partnership firm, of which, the petitioner was a partner and such evidence could not be brushed aside on the ground that no specific date was mentioned for giving effect to the partnership deed, inasmuch as, the Exhibit-A contains the date when it was executed. In view of above evidence adduced by the accused, unless prosecution could prove beyond reasonable doubt that the petitioner was the sole proprietor of M/s Glow White Industries or that it was a proprieteral firm, the petitioner could not be convicted, reason being that, it was the burden of the prosecution to prove each and every ingredient necessary to bring home the guilt of the accused beyond reasonable doubt and such burden could not be shifted to the accused. Surprisingly, in the instant case, both the learned trial Court and the appellate court shifted the burden to the accused/petitioner to prove that he was not the sole proprietor or that the firm M/s Glow White Industries was not a properiterial firm in spite of the evidence adduced by the accused that M/s Glow White Industries was a partnership firm. Surprisingly, in the instant case, both the learned trial Court and the appellate court shifted the burden to the accused/petitioner to prove that he was not the sole proprietor or that the firm M/s Glow White Industries was not a properiterial firm in spite of the evidence adduced by the accused that M/s Glow White Industries was a partnership firm. From the facts and circumstances of the case, it appears that both the Courts below fell in error by shifting the burden to the accused to prove that M/s Glow White Industries was not proprietorial firm or that he was not the sole proprietor of the M/s Glow White Industries, though it was the burden of the prosecution to prove that accused was the sole proprietor of the firm Glow White Industries. 12. Section 17 of the PFA Act reads as under: "........................... 17. Offences by companies.'- (1) Where an offence under this Act has been committed by a company'- (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation.'-Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this subsection in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. (3) The person nominated under sub-section (2) shall, until'- (i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii) he ceases to be a director or, as the case may be, manager of the company; or (iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority], whichever is the earliest, continue to be the person responsible: Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority: Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. (4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company [not being a person nominated under sub-section (2)] such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.'-For the purposes of this section'- (a) "Company" means any body corporate and includes a firm or other association of individuals; (b) "director", in relation to a firm, means a partner in the firm; and (c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it. ....................................." 13. A plain reading of the above provisions would show that when an offence is committed by a company or corporation or partnership firm, three categories of persons are held criminally liable viz., (i). the person who has been nominated under sub-section (2) of Section 17 of the PFA Act, as incharge of, and responsible to the company for the conduct of business. (ii) where no such person was nominated, every person, who at the time of committing offence was in charge of and was responsible to the company for the conduct of the business, (iii), the company itself. 14. Sub-Section (4) provides that besides the above three categories of persons, natural and juristdical, if it is proved that the offence was committed with the consent or connivance of any Director, partner, Manager, Secretary or officials of the Company or corporation, such person as Director, Manager, Secretary or Official shall also to be deemed to be guilty for the act and could be proceeded against. Therefore, in order to proceed against the 4th category of persons, prosecution must show that the offence was committed with the consent and connivance of such person or because of neglect on the part of such person. Therefore, in order to proceed against the 4th category of persons, prosecution must show that the offence was committed with the consent and connivance of such person or because of neglect on the part of such person. Evidently, in the instant case, the petitioner could discharge his burden to show that he was a partner of Glow white Industries , which was a partnership firm and he also stated that he was not associated with the day to day function of the firm and as such, the petitioner could not have been convicted in absence proof that either he was a person nominated under sub-section (2) of section 17 of the PFA Act, or he was responsible for the day to day conduct of the business of the firm or the offence was committed with his consent or connivance or for any of his negligence. There was absolutely no evidence to that effect and the petitioner was convicted on the presumption that he was the sole proprietor of the Glow White Industries, which was a proprieteral firm, whereas, from the evidence as discussed herein above, it was abundantly clear that the prosecution has not been able to prove beyond reasonable doubt that the Glow White Industries was a proprieterial firm and the petitioner was the sole proprietor thereof. In absence of such proof, the petitioner could not have been convicted for the offence in the instant case and as such, the conviction and sentence of the petitioner cannot be sustained. Accordingly, the conviction and sentence of the petitioner is set-aside and the revision petition is allowed. 15. The criminal petition stands allowed. Send back the LCR.