Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 1308 (GAU)

Md. Tayez Ali, S/o- Zodib Ali v. State of Assam

2025-08-07

PRANJAL DAS

body2025
JUDGMENT : PRANJAL DAS, J. Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor for the State. 2. The revision petitioner, namely, Md. Tayez Ali , has filed this petition aggrieved by the concurrent decisions of the learned courts below convicting and sentencing him under Section 7 r/w Section 16 of Prevention of Food Adulteration Act, 1954 (herein PFA Act). 3. The case was initiated based on a complaint dated 07.11.2008 by the Senior Food Inspector, Bongaigaon, during normal checking and the present petitioner, who was a milk vendor, was checked with regard to the milk that he was stated to be selling at Chapaguri, Bongaigaon. The sample sent to the public analyst also returned an adverse finding, stating that the milk was deficient in milk fat and solids, not fat as per standards prescribed in Appendix B of the PFA Act and Rules and hence, was adulterated as per the same law. 4. The complaint resulted in the prosecution of the revision petitioner and during the trial, the Senior Food Inspector and one peon working in the office of Joint Director of Health Services, Bongaigaon were examined as prosecution witnesses, being PW-1 and PW-2, both of whom were cross-examined. Various documents were exhibited by the prosecution. After appreciating the evidence and hearing the parties, the learned trial court being the court of the learned CJM in CR Case No. 46/2009, vide judgment and order dated 23.02.2010 convicted and sentenced the revision petitioner as already mentioned above. The said judgment and order was taken up in appeal before the learned Sessions Judge, Bongaigaon and the consequent appeal, being Criminal Appeal No. 9(1)/2010 was disposed of by the learned Additional Sessions Judge, FTC, Bongaigaon vide judgment and order dated 27.07.2012 by upholding the conviction and sentence without making any changes therein. Accordingly, the convicted appellant is before this Court with the revision. Original trial court records were procured. 5. The learned counsel for the petitioner who based his submissions mainly on two contentions/points- No. (i) that before taking the sample of milk, there was no stirring of the same on the part of the senior food inspector; (ii), that the sample was sent to the public analyst after three days instead of the stipulated two days as required by Rule 18 of the PFA Rules. The aforesaid Rule 18 of the PFA Rules 1954, may be reproduced herein below- “18. Memorandum and impression of seal to be sent separately- A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working days.” 6. In support of his contentions, the learned counsel for the petitioner has placed before this court a judgment of this court rendered in the case of Jitendra Lal Gope vs. State of Tripura , reported in (2011) 2 GLR 829 . In the said judgment, this Court referred to two decisions relied upon by the learned counsel in that case being Food Inspector, Municipal Corporation, Baroda vs. Madanlal Ramlal Sharma & Anr., reported in (1983) Crl. LJ 337 and State of Haryana vs. Daya Nand , reported in AIR (2004) SC 4358 7. In para 7 of Madanlal Ramlal Sharma (supra), the Court reproduced para 8 of Daya Nath (supra), in which the Honorable Supreme Court held as- Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample.... 8. In para. 8 of the judgment also of Jitendra Lal Gope (supra) this court held that in the case of Daya Nand (supra), the Hon’ble Supreme Court reiterated that stirring of milk before taking sample is mandatory. 9. 8. In para. 8 of the judgment also of Jitendra Lal Gope (supra) this court held that in the case of Daya Nand (supra), the Hon’ble Supreme Court reiterated that stirring of milk before taking sample is mandatory. 9. I have also heard the learner Additional Public Prosecutor for the State who submits that the concurrent findings of fact recorded by the learned courts below upon appreciation of evidence are correct and there is no scope for interference with the same. It is submitted that therefore the appellate judgment upholding the conviction and sentence recorded by the learned trial court should be affirmed in this revision and the revision dismissed. 10. I have perused the relevant materials – the judgment of the learned trial court; the judgment of the learned appellate court; the decisions submitted with the bar and other relevant materials. 11. I have also considered the submissions of the learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State. 12. The learned trial court upon appreciating the evidence, did not find any infirmity in the procedural aspects of the prosecution case regarding drawing of sample, making of packets and seals, sending it to the public analysts, the report of the public analysts and other such relevant documentary evidence. The testimony of the two prosecution witnesses was found to be believable by the learned trial court and it came to the conclusion that the prosecution case was cogently proved by meeting all the procedural requirements that the milk which was tested on that day was adulterated. The learned Additional Sessions Judge and the first Appellate Court also appreciated the evidence and recorded a similar finding about the prosecution case not suffering from any infirmities. The present proceeding being a criminal revision against conviction, this Court will not be at liberty to reappreciate the factual aspects again in any detailed manner. The scope of the revisional jurisdiction in adjudicating the correctness of the conviction and sentence would be restricted to ascertain whether the impugned judgments suffer from any perversity, material irregularity or any other fatal legal infirmity. 13. With regard to the aspect of the sample being sent to the public analyst after three days even if the same is accepted, the same would be a procedural infirmity. 13. With regard to the aspect of the sample being sent to the public analyst after three days even if the same is accepted, the same would be a procedural infirmity. No decision has been placed for guidance as to whether any such procedural infirmities by way of delay would be fatal to the prosecution case. Moreover, the learned Appellate Court in para 14 of the judgment has given a cogent reason for rejecting the contention as the same fact was not challenged by the defense during the trial and held that the said delay in sending the sample will not initiate the trial and accordingly, the sample will not vitiate the trial. 14. In para 8 of Madanlal Ramlal Sharma(supra) the Hon’ble Supreme Court has observed that there is no provision in the PFA act other rules which require stirring of the milk before taking a sample. However, it ensures that the food in question, that is the milk would be a homogeneous mixture from which a proper sample can be taken. In that judgment, the Hon’ble Apex Court also held that there is no particular manner by which such stirring is necessary. As already stated above, the para 8 of Jitendra Lal Gope (supra), this court has held after referring to Daya Nand (supra) that in case of milk stirring is necessary. Thus, it is clear from the case laws that though statutorily not provided, but in case of food items like milk, with the objective of securing a homogeneous mixture for sample taking, stirring is required by law. In this context, coming back to the facts of the case, the learned Additional Public Prosecutor has rightly contended that no suggestion was put forth by the defense with regard to such stirring. 15. At this stage, I have perused again the examination-in-chief of PW-1 during the trial. Once again, I did not notice any statement in the examination-in-chief of PW-1 about any stirring of the milk before taking such samples. Of course, as rightly contended by the learned Additional Public Prosecutor that short cross-examination is also silent on the respect. 16. Nevertheless, since the governing law lays down that in case of food items like milk, such stirring is necessary, the evidence from the prosecution side regarding such stirring could be one of the foundational facts of the prosecution case in my considered view. 16. Nevertheless, since the governing law lays down that in case of food items like milk, such stirring is necessary, the evidence from the prosecution side regarding such stirring could be one of the foundational facts of the prosecution case in my considered view. Accordingly, the prosecution is required to adduce evidence regarding such foundational fact and compliance with the said procedure. 17. In a criminal trial, it is well settled that the foundational facts have to be proved by the prosecution before there is any shifting of proof or rebuttal to the defense side. The foundational facts have to be proved by the standard of proof beyond reasonable doubt and any rebuttal thereof by preponderance of probability, as is well settled. Despite the fact that the prosecution of the petitioner has encompassed considerable period of time i.e. about 17 years, I find at this later stage of a criminal revision assailing the conviction by both the courts below that there was a deficiency of a foundational fact in the prosecution case right from the beginning. Therefore, since the said infirmity constitutes violation of a mandatory requirement of law; hence this Court is persuaded to interfere with the impugned judgment and order of sentence. 18. Consequently, allowing the revision, the impugned judgment and order dated 27.07.2012 passed by the learned Additional Sessions Judge FTC, Bongaigaon in Criminal Appeal Number 9(1)/2010 is hereby set aside in exercise of revision of jurisdiction. Thus, the revision stands allowed and disposed of accordingly. 19. Return back the trial court records.