Calcutta High Court (Appellete Side)
Dinabandhu Barat vs The State Of West Bengal on 24 July, 2024
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.R. 525 of 1996
Dinabandhu Barat
-Vs-
The State of West Bengal
For the Petitioner : Mr. Moloy Bhattacharya
Mr. Subhrajyoti Ghosh
For the State : Mr. Avishek Sinha
Heard on : 08.01.2024, 26.02.2024, 03.05.2024
Judgment on : 24.07.2024
Ananya Bandyopadhyay, J.:-
1.The instant revisional application has been filed by the petitioner against an order passed by the Learned Additional Sessions Judge, 2nd Court, Bankura on 31st day of January, 1996 in Criminal Appeal No. 16 of 1994 upholding the order and judgment of conviction and sentence of rigorous imprisonment for 3 months and a fine of Rs.1,000/-, in default, rigorous imprisonment for 1 month for offence under Sections 7/16 of Prevention of Food Adulteration Act, 1954 passed by the Learned Judicial Magistrate, 2nd Court, Bishnupur in Case No. 102C of 1992 (C.R. Case No. 102/92) / (T.R. No. 11 of 1993).
2. The complainant, on inspection of the sweet meat shop situated at Patrasayar Bazar, Bishnupur, on 06.06.1992 at about 12 noon, 2 purchased 1.5 kg of sweet meat 'Kamala Bhog' under proper receipt and segregated the same in three bottles as samples which were analyzed by the Public Analyst who opined the same to be adulterated.
3. The complaint of the Food Inspector was the basis of the CR case no.102 of 1992 by TR no. 11 of 1993.
4. The prosecution examined 4 witnesses and exhibited certain documents. The defence cited 3 defence witnesses.
5. The Second Court of Learned Judicial Magistrate, Bishnupur, convicted the accused under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and sentenced the same to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a further period of one month.
6. An appeal was preferred against such order of conviction which was dismissed by the Learned Additional Sessions Judge, Second Court, Bankura on 31st day of January, 1996 in Criminal Appeal No.16 of 1994, confirming the order of conviction and sentence passed by the Second Court of Learned Judicial Magistrate, Bishnupur as aforesaid.
7. Considered the rival contentions of the Learned Advocates for the petitioner as well as the State.
8. Section 2 of the Prevention of Food Adulteration Act states as follows:-
2. Definitions.-- In this Act, unless the context otherwise requires,--
[(i) "adulterant" means any material which is or could be employed for the purposes of adulteration;] [(ia)] "adulterated"--an article of food shall be deemed to be adulterated--
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(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filthy, putrid, 5 *** rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
[(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; 4
[(l) if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) If the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health. then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;]....."
9. Section 7 of the Prevention of Food Adulteration Act states as follows:-
"7. Prohibition of manufacture, sale, etc., of certain articles of food.--No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute--
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority 2 [in the interest of public health; 3 ***]
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; [or] 5 [(vi) any adulterant.] [Explanation--For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture there from of any article of food for sale.]"
10. Section 16 of the Prevention of Food Adulteration Act states as follows:-
"16. Penalties.-- [(1) Subject to the provisions of sub-section (1A) if any person--
(a) Whether by himself or by any other person on his behalf, imports into India or manufacturers for sale or stores, sells or distributes any article of food--
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause
(ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) Other than an article of food referred to in sub-clause (I), in contravention of any of the provision of this Act or of any rule made thereunder, or
(b) whether by himself or by any other person on his behalf, imports into India or manufacturers for sale or stores, sells or distributes any adulterant which is not injurious to health; or
(c) prevents a food inspector from taking a sample as authorised by this Act; or
(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or
(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to health; or
(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract thereof for the purpose of advertising any article of food; or 6
(g) whether by himself or by any other person on his behalf, give to the vendor a false warranty in writing in respect of any article of food sold by him. he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:
Provided that--
(i) if the offence is under sub-clause (I) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or
(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which may extend to two years, and with fine which shall not be less than five hundred rupees: Provided further that if the offence is under sub-clause (ii) of clause
(a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.] [(1A) If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes--7
(i) any article of food which is adulterated within the meaning of any of the sub-clause (e) to (l) (both inclusive) of clause (ia) of section 2; or
(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which extend to six years and with fine which shall not be less than two thousand rupees:
Provided that if such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.] [(1AA)] if any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than one thousand rupees.
[(1B) if any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article which is found by magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of clause (ia) of section 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), then notwithstanding anything contained in sub-section (1AA), he shall be punishable with imprisonment for a term which shall not be less 8 than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.] (1C) if any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than five hundred rupees.
(1D) if any person convicted of an offence under this Act commits a like offence afterwards, then without prejudice to the provision of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act or in the rules made thereunder, stand cancelled.
(2) if any persons convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine."
11. The report submitted by the Public Analyst marked as Exhibit-17 mentioned "the sample sweetmeat 'Kamalabhog'"- "the sample is adulterated as it contains a non-permitted unidentified coaltar dye of orange colour". The Public Analyst did not categorically state as to whether the non-permitted unidentified coaltar die of orange colour was injurious to health. Though the ownership of the sweetmeat shop could not be proved, nonetheless the existence of the sweetmeat shop could not be denied. The sweetmeat shop dealt in manufacture and sale of this particular sweetmeat without any objection or complaint from the 9 consumers with regard to the same being noxious and deleterious. Moreover, the compliance under Section 13 of the Act providing the report of the Public Analyst to the appellant for further analysis by the Central Food Laboratory was not adhered to. The report of the Public Analyst being vague without mentioning of the same to be pernicious to the health of the consumers and non-compliance with the provisions under Section 13 of the Act, the appellant is to be acquitted.
12. In view of the above discussions, the order passed by the Learned Additional Sessions Judge, 2nd Court, Bankura on 31st day of January, 1996 in Criminal Appeal No. 16 of 1994 upholding the order and judgment of conviction and sentence of rigorous imprisonment for 3 months and a fine of Rs.1,000/-, in default, rigorous imprisonment for 1 month for offence under Sections 7/16 of Prevention of Food Adulteration Act, 1954 passed by the Learned Judicial Magistrate, 2 nd Court, Bishnupur in Case No. 102C of 1992 (C.R. Case No. 102/92) / (T.R. No. 11 of 1993) is set aside.
13. Accordingly, the instant criminal revisional application being CRR 525 of 1996 is allowed.
14. The instant criminal reivisional application being CRR 525 of 1996 stands disposed of. Connected application, if there be any, also stands disposed of.
15. There is no order to costs.
16. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 10
17. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)