Calcutta High Court (Appellete Side)
S. K. Basu vs Paresh Vora & Ors on 15 March, 2016
Author: Ishan Chandra Das
Bench: Ishan Chandra Das
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Ishan Chandra Das
C.R.A. 109 of 1998
S. K. Basu
-Vs-
Paresh Vora & Ors.
For the Appellant : Mr. Madhusudan Saha Roy
For the opposite parties : Mr. Sandipan Ganguly,
Ms. Sreyashee Biswas
Heard on : 01.02.2016 and 16.02.2016
Judgement on : 15.03.2016
Ishan Chandra Das, J. :-
Heard the learned Counsel for both the parties.
Assailing the judgment and order of acquittal passed by Senior
Municipal Magistrate and Metropolitan Magistrate 1st Class, Calcutta, the
present appeal has been preferred where the order of acquittal of the
respondents from the charge levelled against them under Section
16(1)(a)(ii), read with Section 7 of the Food Adulteration Act, l954 has been questioned.
Briefly stated, the case of the appellant was that on 28th May, l988 at about 12.15 p.m. one Mr. Atal Behari Roy (P.W.1), Food Inspector of C.M.C. inspected an Ice-cream Company under the name and style as 'M/s. Jolly Chap' alias 'Sree Ganesh Icecream Company' located at 172, Ramesh Dutta Street, Calcutta-700 006 where he found one Ranjan Kumar Singhania (who has been designated as respondents no. 2 and 3 as person-in-charge and seller hereinafter referred to as the respondent no. 2 for the sake of convenience) before whom the complainant (P.W.1) disclosed his identity and came to know from him that the respondent no. 1 was the proprietor of the said business. During such visit-cum- inspection, the Inspector (P.W.1) suspected some milk ice-candies manufactured, stored or exposed for sale were of sub-standard quality and unfit for human consumption. Intending to draw one sample from the milk ice-candies, the complainant called one local witness named Birbahadur Singh of 9, Ramesh Dutta Street, Calcutta to the said establishment and a notice was served in Form no. VI upon the respondent no. 2 and thereafter he purchased 900 grams of milk ice-candies as sample from the said stock at a cost of Rs. 21/- after observing all necessary formalities, prescribed by the Act and Rules thereunder. Thereafter he divided the sample into three equal parts and put each part in three empty dry and clean phials and sent one part to the Public Analyst for analysis, received report in due course wherefrom it was seen that the sample of milk ice-candies (Jolly Chap) did not contain declaration regarding addition, extraneous colouring materials as required under Rule 24 and it was 'mis-branded'. Thereafter on perusal of the documents and records, the concerned authority accorded sanction to prosecute the respondents herein. Accordingly, on the basis of the petition of complaint, a case was registered, cognigance was taken, charge was framed on the basis of evidence taken before consideration of such charge and on conclusion of trial, after cross- examination of the complainant's witnesses on framing of the charge, learned trial court found the respondents not guilty of the offence as complained of and acquitted them from the charge levelled against them.
Now the point left for the decision before this court whether learned trial court was justified in acquitting the respondents by the judgement impugned or is it not sustainable in law?
Learned Counsel for the appellant at the very outset of his argument drew my attention to the petition of complaint (at page 1 of the paper book) and pointed out that the de facto complainant being appointed as a Food Inspector, in terms of Section 9 of the Act, filed the written complaint before learned trial court with the consent of the appropriate authority (i.e. local Health Authority and Chief Municipal Health Officer). Drawing my further attention to the paragraph 7 of the said petition of complaint (Exhibit-9, at page 1 (continuation) of the paper book), he also urged that the petition was filed before the court of competent jurisdiction upon compliance of all the formalities and in part 1 of the said petition of complaint, the allegations against the respondents were clearly averred giving rise to the cause of action to initiate the instant proceeding.
With reference to the report of the Public Analyst dated 29.06.l988 (at page 2 of the paper book), he also pointed out that the respondents herein committed the offence of selling seized articles which was declared 'mis-branded' by the Public Analyst in his report. To further his argument learned Counsel for the appellant urged relying on a decision of the Hon'ble Andhra Pradesh High Court in M/s. Hyderabad Beverages Pvt. Ltd. Vs. State of A.P., reported in 2006 Cri. L.J. 3988 and submitted that in the instant case, as the respondents did not apply for sending the sample for analysis to the central laboratory, no prejudice can be inferred. To advance his argument learned Counsel for the appellant relied on a decision of the Hon'ble Apex Court in Isher Das vs. State of Punjab, reported in AIR l972 SC 1295 and pointed out the verdict of the Hon'ble Court where it was held - "adulteration of food is a menace to public health. The prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food."
Clarifying the intention of the legislature in this context, he urged that learned trial court acquitted the respondents merely on technical grounds without appreciating the merits of the case and without considering its impact on the society at large. To conclude his argument relying on a decision of a Division Bench of this Court in Union of India vs. Sanwarmal Modi, reported in l992 C Cr.LR (Cal) 293, he urged that the order of acquittal passed by learned Magistrate long ago (i.e. on 31.05.l997) cannot be a good ground for refusing to act in order to promote the interest of justice.
Learned Counsel for the respondents herein, in course of his argument, drew my attention to the relevant portion of the judgment impugned and urged that learned trial court rightly passed the order of acquittal in favour of his clients. With reference to the relevant portion of the statement in cross-examination of the de facto complainant Atal Behari Roy (P.W.1), he pointed out that the said de facto complainant while collecting sample of icecream did not refer to in his report whether he collected 'in packed condition' or 'loose condition'. He further submitted with reference to the statement of P.W.1 that the de facto complainant admitted that he collected the sample of icecream from the Refrigerator after making it into pieces. Pointing out the manner of collection of samples, he submitted that learned trial court rightly held that the respondents herein had no scope to comply with the provisions of Rule 24 of the Prevention of Food Adulteration Rules, l955 and there was no mistake or perversity in the judgement impugned so that it can be interfered with in the present appeal.
Learned Counsel for the respondents, to fortify his argument in this context urged, with reference to the decision of the Hon'ble Apex Court in Tota Singh and Anr. Vs. State of Punjab, reported in l987 SCC (Cri) 381 and opined that the High Court's interference with order of acquittal is not opened merely because on a reappraisal of evidence an alternative conclusion may be drawn.
Further relying on a decision of the Hon'ble Supreme Court in Sunil Kumar Sambhudayal Gupta (DR) and Ors. Vs. State of Maharashtra, reported in (2011) 2 SCC (Cri) 375, he reiterated that the court "while dealing with the judgment of acquittal as an appellate court must consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable."
Placing reliance on a decision of the Hon'ble Supreme Court in Ghurey Lal vs. State of Uttar Pradesh, reported in (2009) 1 SCC (Cri) 60, he admitted with all fairness that "the appellate court's power is wide and extensive, but it must be used with great care and caution".
Pointing out the above noted decisions of the Hon'ble Supreme Court, he urged that the Hon'ble Supreme Court in Ghurey Lal (supra) formulated the principles to deal with the judgement of learned trial courts, ended in acquittal.
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Court/appellate courts must rule in favour of the accused.
In this context relevant portion of the judgment impugned is quoted below for critical appreciation of the same :
"I have already stated above that in the instant case petition of complaint has been marked as Ext. 9. I have carefully perused the same. It has not at all been stated in the petition of complaint that the sample in question does not contain any declaration as required under the Rule, i.e. there is no any reference of mis-branding as required under Rule in the petition of complaint.
No explanation is forthcoming from the side of the prosecution as to why such reference of misbranding as required under Rule has not been stated in the petition of complaint. And I have already stated above that it has been decided by His Lordship in the decision reported in1986 All India Prevention of Food Adulteration Journal, at page 509 that - ' if there is no any reference of misbranding as required under Rule in the petition of complaint then; the process cannot be issued on such complaint for violation of the rule in question'.
Except this, P.W.1 (Food Inspector) has stated nothing in his evidence during chief-in-examination in respect of such infringement of Rule 24 of the P.F. A. Rules, i.e. he has not at all stated in his evidence that he has not at all noticed and declaration on the sample in question as required under the Rule. On the other hand, he has stated in his evidence during chief-in-examination that he suspected the Milk Ice-candies as of substandard quality. Moreover, it is evident from his evidence during cross-examination before charge that Milk Ice-candies from which sample in question was taken, were kept in freeze for sale, and the same were unpacked. He has clearly stated in his evidence during cross-examination after charge that the Ice-Candy was inside the freeze and he collected the sample after making the said ice candy into pieces. And he cannot say how those ice candies used to be sold, i.e. loose condition or packed condition.
So, it can safely be said from the above evidence of P.W.1 that the Milk Ice-candies, from the which the sample was taken, were taken unpacked and the Food Inspector cannot say how those Ice- candies were used to be sold, i.e. in loose condition or in packed condition.
Rule 24 of the P.F.A. Rules clearly speaks that- "Where an extraneous colouring matter has been added to any article of food, there shall be written on the label attached to any package of food so coloured a statement in capital letters as below:
"CONTAINS PERMITTED COLOURS"
The word "Package" refers to the immediate container of the article intended for consumption by the Public.
So, I opine that the stage or labelling comes in after full completion of packaging.
Accordingly, it was rightly pointed out by the Ld. Defence Counsel that from the above evidence of the P.W.1 (Food Inspector) it cannot be said at all that Milk Ice-candies were exposed for sale for human consumption just before taking sample of the same.
According to him, the said Ice-candies were under manufacturing process and were not stored for sale". The judgement impugned as quoted above clearly reflects the grounds which were considered by the learned trial court in dealing with the merits of the case and in the given facts and circumstances of the case, I firmly held that learned trial court was correct in his approach and there was no mistake in arriving at the legitimate conclusion. Accordingly, I am of the opinion that there was no perversity in the findings of learned trial court in the judgment impugned.
In this context reliance may be placed on a decision of the Hon'ble Apex Court in Ramesh Babulal Doshi vs. State of Gujarat, reported in l996 SCC (Cri) 972, as submitted by the learned Counsel for the respondents - " while sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed."
In view of the discussions made above, I am of firm opinion that learned trial court rightly decided the merits of the case and I find no reason to interfere with the judgement which stands affirmed upon dismissal of the appeal.
Let a copy of the judgement along with the lower court record be sent to the learned trial court forthwith for information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(Ishan Chandra Das, J. ) skp.