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2023 DIGILAW 273 (JHR)

Raj Kumar Sao v. State of Jharkhand

2023-03-01

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This criminal revision application is directed against the judgment dated 24.8.2006, passed by the learned Addl. Sessions Judge, F.T.C. 7th, Dhanbad in Criminal Appeal No. 66 of 1993, dismissing the appeal and upholding the judgment of conviction and modifying the order of sentence dated 19.4.1993, passed by the Sub-Divisional Judicial Magistrate, Dhanbad in P.F.A. No. 28 of 1991, whereby the petitioner has been convicted and sentenced to undergo R.I. for six months along with a fine of Rs.1000/- for offence punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and he was directed to undergo S.I. for one year in default of payment of fine amount. However, the appellate court has modified the sentence to the extent that in default of payment of fine the petitioner shall undergo S.I. for three months. 3. The prosecution case in brief is that the salt purchased by the complainant on 20.8.1990 from the shop of the petitioner was found adulterated due to its low iodine content. 4. Learned Amicus appearing for the petitioner assailed the impugned judgment on the ground that there is no evidence to show that the appellant has committed any offence. Learned Amicus contends that in the instant case no independent witness has been examined on behalf of the prosecution. She further contended that the report of the Public Analyst cannot be taken into consideration in view of the fact that the public analyst, who had examined the sample, has not been examined during the trial, as such relying upon the said document (Ext.4) would not be sufficient in convicting the petitioner. She further contends that the Exhibit 4 cannot be considered a material piece of evidence as the complainant deliberately failed to give proper sample to the Public Analyst while a statement has been made by the complainant that the same was kept in a plastic packet which means that the container has not been prepared in accordance with the provisions of the relevant Act. She concluded her argument by submitting that merely accepting the document unless the content in the document is proved in due manner is bad in the eye of law. Relying upon the aforesaid argument, learned Amicus prays for acquittal. 5. She concluded her argument by submitting that merely accepting the document unless the content in the document is proved in due manner is bad in the eye of law. Relying upon the aforesaid argument, learned Amicus prays for acquittal. 5. Learned A.P.P. supports the impugned judgments and submits that there is no illegality in the order and the impugned judgments also does not suffer from any infirmity. 6. Having heard learned counsel for the parties and after going through the L.C.R. it appears that the public analyst, who examined the sample has not been examined in course of trial and as such no reliance can be placed on the report prepared by him. Hon’ble Apex Court, in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 has held that merely exhibiting a document in a case is not enough unless the content of the document is proved in due manner. Para 37 of the said judgment is quoted herein-below: “37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.” It further transpires that the container in which the sample was kept was not proved by any authority to be free from any adulterous article. All these aspects have been ignored by the learned trial court as well as by the learned Appellate court. Last but not the least, no independent witness was present there while the sample was being taken. Further, non-examination of the public analyst clearly proves the failure of the prosecution to prove that the container was free from any adulterous article. All these aspects have been ignored by the learned trial court as well as by the learned Appellate court. Last but not the least, no independent witness was present there while the sample was being taken. Further, non-examination of the public analyst clearly proves the failure of the prosecution to prove that the container was free from any adulterous article. This court is of the opinion that the learned court below did not consider the case of the prosecution on proper appreciation of the evidence, facts and circumstances as the prosecution has not been able to prove the guilt of the petitioner beyond all shadow of reasonable doubts and therefore, the petitioner is entitled to the benefit of doubt. In view of the aforesaid finding, the order 19.4.1993 passed by the learned trial court and the judgment dated 24.8.2006 of the appellate court vide are liable to be set aside. 7. As a result, the instant criminal revision is allowed. 8. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills, Rs.5,000/- per hearing, as professional fee subject to the maximum ceiling as per the existing guidelines. 9. Let the copy of this order be communicated to the court below the Secretary, Jharkhand High Court Legal Services Committee and also to the petitioner through the officer-in-charge of concerned police station. 10. Let the lower court record be sent to the court concerned forthwith.