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2019 DIGILAW 505 (GAU)

Prasanta Paul v. State of Assam

2019-04-25

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. This Revision is preferred against the judgment and order dated 05.08.2006 passed by the learned Chief Judicial Magistrate, Cachar, Silchar in CR No.2391/2001 convicting the petitioner under section 7/16 of the Prevention of Food Adulteration Act, 1954 and sentencing the petitioner to suffer imprisonment for 6 months and to pay a fine of Rs.1000/- in default to suffer imprisonment for one month more. 2. Heard Mr. SK Ghosh, learned counsel for the revision petitioners and Mr. D Das, learned counsel appearing on behalf of the State. 3. The prosecution case in brief is that on 24.05.2001 at about 1.30pm the Food Inspector Sri S Dutta complainant of this case accompanied by Sri HA Laskar, Executive Magistrate, Silchar and two officers of the Food & Civil Supplies visited the shop premises of M/S Raj Trading Co. At Lakhipur Road, Silchar. At that time accused Prasanta Paul was in the shop conducting the affairs of the business. He was the proprietor of the said trading company. They inspected various food articles kept in the shop premises for sale for human consumption. The complainant also introduced himself to the accused as Food Inspector. During the inspection he suspected some articles as substandard with relation to quality and found about two dozens of sterilised milk paneer packet in tins of "Gopal" Brand. Suspecting the quality of the aforesaid food item, the complainant after completion of all formalities as laid down in the Act and the Rules, purchased three sealed containers of paneer weighting 200 grams each on payment of Rs.75/-. Formal vouchers/cash memo were issued to the complainant. Thereafter the complainant again sealed, packed and levelled the three containers separately as per rules. All the formalities were completed in presence of the Inspector of Food and Civil supplies and the Executive Magistrate Sri HA Laskar. Thereafter one of the three sealed packed and levelled containers was sent to FSL as per the provisions of the PFA Act. The FSL after due analysis of the paneer found that the sample of sterilised milk paneer "Brand Gopal" does not conform to the standard and the said report of the public analysis was communicated to the public Health Authority who in their turn communicated to the complainant. The FSL after due analysis of the paneer found that the sample of sterilised milk paneer "Brand Gopal" does not conform to the standard and the said report of the public analysis was communicated to the public Health Authority who in their turn communicated to the complainant. The complainant thereafter obtaining written sanction from the Health Authority filed the complaint before the learned Chief Judicial Magistrate with an information to the accused that if the accused so desired he might apply to the learned Chief Judicial Magistrate to get the sample analysed again from the Central Food Laboratory. The accused though appeared in the court but did not apply for re- examination by the Central Food Laboratory. 4. The accused person face the trial before the court and denied the charge under Section 7/16 of the PFA Act that was framed by the learned trial court. Prosecution examined three witnesses in support of their case and defence also examined two witness in rebuttal. Plea of defence is of total denial. The learned trial court at the conclusion of the trial has convicted the accused person under section 7/16 of PFA Act and sentence him to SI for six months and to pay a fine of Rs.1000/- in default imprisonment for one month. 5. Being aggrieved the accused preferred an appeal before the court of Additional Sessions Judge, FTC Cachar, Silchar and appeal was dismissed by affirming the conviction and sentence of the trial court. 6. Challenging the aforesaid order, the present revision petition has been preferred on the ground that the trial court as well as appellate court has failed to appreciate the evidence in proper perspective of law and facts which has resulted miscarriage of justice. 7. According to the learned counsel for the petitioner the article seized by the Food Inspector was not kept in the shop premises for sale of human consumption rather it was kept in the godown at the back side of the shop for destruction as it was damaged. But, however, the article was seized by way of purchase by the Food Inspector from the godown itself and the same aspect has not been properly reflected in the complaint petition and suppressed by the Food Inspector in his evidence. But however, another prosecution witness PW-2 has supported the contention raised by the accused and also the evidence of DW-1 has supported the said aspect. But however, another prosecution witness PW-2 has supported the contention raised by the accused and also the evidence of DW-1 has supported the said aspect. 8. The learned Additional Public Prosecutor has however submitted that as the seized article was purchased by the Food Inspector by paying value thereof and as such the contention of the petitioner cannot be accepted that it was stored in the godown for destruction purpose. The report of FSL also reveals that such seized article does not conform to the standard set by the Act. Accordingly it has been contended that the prosecution has by all necessary evidence has proved that the accused has sold the article to the Food Inspector which was found to be adulterated so the accused is rightly convicted by both the forums. 9. I have considered the submission of both the parties and gone through the evidence on record. According to the Food Inspector/PW-1, he seized the article from the shop premises of the accused person which was kept for sale but his own witness PW-2 has stated that the said paneer was seized from the backside godown of the shop premises wherefrom damage food articles was kept. Pw-2 also admitted that while the sample was collected, accused told that articles was not for sale and was kept for destruction as date has expired. In view of such contradictory statement the contention of the accused/petitioner found to have sufficient force that he did not kept the article in the shop premises for the purpose of sale at the time of inspection made by PW-1. It is to be noted that the said Food Inspector/PW-1 neither in the complaint petition nor in course of evidence has specifically stated as to where from the article was seized. On the other hand no independent witness was examined by prosecution in support of such seizure. In view of the admission made by the PW-2 as discussed above it can be found that despite the revealment of the facts that the article was not kept for sale, the Food Inspector/PW-1 purchased the article which is not at all proper and legal. 10. The accused/appellant examined himself as DW-2 in support of the fact that the seized paneer was not kept in the show room of the shop but kept in the store room as it was damaged and not for sale. 10. The accused/appellant examined himself as DW-2 in support of the fact that the seized paneer was not kept in the show room of the shop but kept in the store room as it was damaged and not for sale. But, however, the Food Inspector in spite of appraisal of the matter took the sample only for examination purpose. It is also stated by him that there was no customer at the time of inspection made by the Food Inspector neither the Food Inspector tried to call any witness. 11. The above contention of the appellant is peculiarly supported by the witness who happened to accompany the Food Inspector on the faithful day. Mr. HA Laskar, SDO(E), Silchar named in the complaint petition who were along with the Food Inspector at the time of inspection of the premises of the accused/appellant, as DW-1, he has stated that he was the member of the team of inspection along with PW-1 and there was no specific allegation against the accused/appellant or his farm. No independent witness was sought for by the Food Inspector during the collection of the sample. He has also stated that sample of food article was collected from the article that was stored behind the shop premises. 12. Relying on the decision of 1992 Criminal Law Journal 1486 State of Assam Vs Rakesh Ch. Paul, the learned counsel for the appellant has submitted that while the prosecution failed to prove that the seized article was kept for sale for human consumption within the meaning of the Section 2(XIII) of PFA Act, no offence is made out under Section 7 of the Act. In the aforesaid case reference has been made to the law laid down by the Supreme Court in Municipal Corporation of Delhi vs Lakshmi Narayan Tandon (1976) 1 SCC 546 and Om Prakash Vs Delhi Administration (1976) 1 SCC 637 wherein it was held that storage or distribution of an adulterated article of food for the purpose other than for sale would not constitute the offence. It was also noted that even under the definition of sale it has to be kept for human consumption. Mere possession of such article would not amount the offence under Section 7/16 of the PFA Act. 13. It was also noted that even under the definition of sale it has to be kept for human consumption. Mere possession of such article would not amount the offence under Section 7/16 of the PFA Act. 13. In Lakshmi Narayan Tandon (supra) it has elaborately held that the expression store in Section 7 means "storing for sale" and consequently storing of an adulterated article of food for the purpose other than the sale would not constitute an offence under Section 16(1)(a). Storage of distribution of an adulterated article of food for a purpose other than the sale does not fall within the mischief of the Section. If an article of food is not intended for sale and is in possession of the person, who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in sub-section 1(a) and 2 of the section, the Food Inspector would not be competent under the law to take a sample and on such sample being found adulterated to lunch prosecution thereon. It is further held that the construction of the terms "store and distribute" in Section 16 will be further clear from a reference to Section 10. Under that Section the Food Inspector, whom the Act assigns a pivotal position for enforcement of its provisions, is authorised to take sample of an article of food only from particular persons indulging in a specified course of business activity. The immediate and ultimate end of such activity is the sale of an article of food. The Section does not give a blanket power to the Food Inspector to take sample of an article of food from a person who is not covered by any of sub clauses of the Sub-Section 1(a) or Sub-Section 2. 14. Similar view was taken in Municipal Corporation of Delhi vs Nand Kishore 1972 FAC 561 that it is no doubt true that sale to a Food Inspector for the purpose of analysis amounts to a sale within the meaning of Section 2(XIII) of the Act but if a Food Inspector insist upon taking the sample of an article of food which is not ready/kept for human consumption, then it will not amount to sale of an article of food within the meaning of definition of sale under Section 2 of the Act. 15. 15. The aforesaid view was reiterated in the subsequent decisions of 1985 (1) GLR 253 Sri Narayan Chandra Saha and another Vs State of Assam and other catena of cases. 16. Now in the instant case as has been discussed above the appellant has been able to prove that the sample that was taken by the Food Inspector was stored in the backside of the shop premises along with damaged article for destruction and despite being informed about the same the sample was taken by the Food Inspector and it same cannot be amount to sale as has been discussed above, neither there is any evidence to show that the article was sold to any customer for human consumption. The learned court below has mostly relied upon the evidence of Food Inspector without appreciating the other aspect that has been indicated above. The appellant has substantiated his plea by adducing evidence. I found sufficient force in the submission of the learned counsel for the petitioner that for non consideration of relevant facts and the provision of law as pronounced above, the impugned orders of both the courts suffers from serious illegality which is required to be interfered into. 17. For the reasons above, the impugned order of both the court below is hereby quashed and set aside and I acquit the accused petitioner from the charge and set him at liberty forthwith. 18. Send down the LCR along with copy of this judgment.