Gauhati High Court
Kamal Kumar Dhanuka vs The State Of Assam on 7 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 472
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/5
GAHC010008742010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 477/2010
1:KAMAL KUMAR DHANUKA
S/O LT. SRI GOPAL DHANUKA, R/O BHARALUMUKH, GHY-9.
VERSUS
1:THE STATE OF ASSAM
REP. BY SHRI T K BARMAN FOOD INSPECTOR SENIOR OFFICE OF THE
JOINT DIRECTOR OF HEALTH SERVICES, KAMRUP, GHY.
Advocate for the Petitioner : MR. S.S. SHARMA ,
ADVOCATE
Advocate for the Respondent : MR. B.B. GOGOI,
ADDL. P.P., ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
JUDGMENT & ORDER (ORAL)
Date : 07-01-2020 Heard Mr. S.S. Sharma, learned counsel for the petitioner/convict and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State respondent.
2. This criminal revision under Sections 397 read with Section 401 Cr.P.C., is directed against the judgment and order, dated 07.09.2010, passed by the learned Sessions Judge, Kamrup at Guwahati in Criminal Appeal No. 84/2009 upholding the judgment and order, dated 29.10.2009, passed by the learned Chief Judicial Magistrate, Kamrup at Guwahati in C.R. Case No. 2779 C/2001 whereby the petitioner/accused was convicted and sentenced to suffer simple imprisonment for a period of 6 (six) Page No.# 2/5 months and to pay a fine of Rs.5,000/- (Five Thousand) only, in default to suffer further simple imprisonment for another 1 (one) month and also convicted the original accused No. 3/Ambika Flour Mill to pay fine of Rs.10,000/- (Ten Thousand) only under Section 16(I)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (For short 'PFA Act').
3. The prosecution case, in brief, is that on 29.08.2001, the Food Inspector, Kamrup, Sri Hiren Gogoi visited the premises of Ambika Flour Mill, Maligaon, for inspection of the food stuff stored and manufactured for sale for human consumption. The Food Inspector disclosed his identity as food Inspector of Kamrup to Nemichand Sharma, who disclosed to him to be the In-Charge of the flour Mill and Kamal Kumar Dhanuka as PFA Nominee. Notice under Form VI was served upon Nemichand Sharma and thereafter, the Food Inspector purchased and took two samples of Besan; one from a sealed packet of 1 kg and another from a packet of 500 gms for sending the samples to Public Analyst, Assam for analysis of its purity. The Food Inspector divided the samples in 3 equal parts (total 6 parts) and they were packed and sealed following all the formalities of PFA Act and rules made thereunder. Thereafter, the Food Inspector prepared copies of memorandum. One part of each samples together with a copy of memorandum was sent to the Public Analyst, Assam for examination. Other 4 parts of the samples together with the copies of memorandum were deposited with the Local Health Authority.
4. The Local Health Authority received the reports of the samples from the Public Analyst, Assam wherein he held the opinion that (1) the sample bearing Code and serial No. HGSR (K) 2001 & 2001/11 is adulterated as per Rule 44A(f) of the PFA Act, 1954 and Rules 1955 and (2) the sample bearing Code No. and Serial No. HGSR (K) 2001 & 2001/10 is also adulterated as per Rule 44A(f) of the PFA Act, 1954 and rules 1955. Written consent was obtained from the authority to prosecute the accused persons under the PFA Act and thereafter, another Food Inspector, namely, Sri T.K. Barman filed 2 separate complaints before the Court of learned CJM, Kamrup to prosecute the accused persons under Sections 7(1), 17, 16(1) of the PFA Act. The Local Health Authority, after the institution of the case, sent copies of the Public Analyst's opinion to the accused persons as required under the provision of Section 13(2) of the PFA Act. After receiving the Public Analyst's report, the accused No. 2 Kamal Kumar Dhanuka made prayers in both the cases to send the second part of the samples to the Central Food Laboratory. Accordingly, second part of the samples were sent to the Central Food Laboratory, in connection with C.R. Case No. 2779/2001 and C.R. Case No. 2780/2001. After examining the samples sent in connection with C.R. Case No. 2780/2001, the Director of the Central Food Laboratory, Ghaziabad submitted a report holding the opinion that the sample does not conform to the standards of Besan laid under item A 18.04 of Appendix "B" of the PFA Rules (1955) Page No.# 3/5 as that sample showed presence of Khesari Dal and large number of dead insects and hence, the sample was opined to be adulterated. After examining the sample sent for examination in connection with C.R. Case No. 2779/2010, the Director of Central Food Laboratory, Ghaziabad submitted the report holding the opinion that the sample does not conform to the standard of Besan laid down under item No. A.18.04 of Appendix 'B' of the PFA Rules (1955) as that sample showed presence of khasari Dal and hence, the sample was adulterated.
5. In course of trial, the accused No. 1 Nemichand Sharma, the In-Charge of the Mill absconded and accordingly, the case against him was filed accepting the P&A report. The present convict petitioner and Ambika Four Mill were put on trial. The convict petitioner pleaded innocent on explaining the offence under Section 16 read with Section 7 of the PFA Act. Thereafter, the prosecution examined 3 (Three) witnesses. On closing the prosecution case, the statements under Section 313 Cr.P.C. were recorded. The defence case was of total denial and adduced no evidence in defence. Thereafter, the learned trial Court, on hearing the arguments of both sides and appreciation of the evidence, oral and documentary, convicted and sentenced the petitioner and the Mill as stated above, vide the impugned judgment and order, dated 29.10.2009, passed in C.R. Case No. 2779C/2001, which was upheld in appeal vide the impugned judgment and order, dated 07.09.2010, passed in Crl. Appeal No. 84/2009.
6. Mr. S.S. Sharma, learned counsel for the convict petitioner, submits that at the time of collection of the samples, the petitioner, who was the nominee of the Mill, was not present and no attempt was made to secure presence of any independent witness by the Food Inspector which was not taken into consideration by both the Courts below as required under Section 10(7) of the PFA Act. Mr. Sharma further submits that the learned trial Court consolidated C.R. Case No. 2779 C/2001, and 2780C/2001 under the provisions of Section 219 Cr.P.C. and passed the impugned common judgment and order in view of bar under Section 300 Cr.P.C. and Article 20(2) of the Constitution of India. Mr. Sharma also submits that the petitioner was an employee of the Mill at the relevant time, although made a nominee of the said Mill. According to Mr. Sharma, when the report of the Public Analyst did not disclose the presence of any alive or dead insects in the samples and the report of the Director of the Central Food Laboratory (For short 'CFL') disclosed the presence of the same, it clearly indicated that 3 parts of samples collected in each of the cases were not the representatives of each other and the said fact is evident by the two reports of the two different authorities, namely, the Public Analyst of the Govt. of Assam and the Director, CFL, since the Public Analyst did not find any live or dead insects, whereas the CFL found presence of dead insects in one of the parts of the samples sent to him for reanalysis. Therefore, Mr. Sharma submits that the petitioner ought to have Page No.# 4/5 got acquitted in the case and that his punishment would not serve any purpose of the PFA Act, which was allegedly committed more than 18 (Eighteen) years ago and further, in a trial during the said abnormally long period.
7. Per contra, Mr. B.B. Gogoi, learned Additional Public Prosecutor, submits that as the petitioner did not contest or dispute his nominee of the Mill and the expert opinions, the impugned judgments and orders of the learned Courts below cannot be said to have suffered any legal flaws requiring this Court's interference therein.
8. I have considered the above arguments advanced by the learned counsel of both sides and perused records.
9. In this case, it is noticed, the prosecution examined 3 (Three) witnesses, namely, P.W. 1 Shri Tarini Kanta Barman, Regional Food Inspector, who filed the offence report, after complying the necessary formalities under the PFA Act; P.W. 2 Shri Tulshi Sarma, who accompanied P.W. 3 Shri Hiren Gogoi, Food Inspector to Ambika Flour Mill, Guwahati and, was present at the place of detection (Mill) during 'besan' samples collection and P.W. 3 Shri Hiren Gogoi, Food Inspector, who detected the commission of the offence of adulteration of 'besan' at the said flour mill. It is seen that all the said prosecution witnesses have supported the prosecution case, so far, the formalities required to be observed by the Food Inspector (Here P.W. 3) as required under Sections 10 and 11 of the PFA Act while taking the samples of 'besan' at the said Flour Mill. It is also noticed from the evidence of P.Ws 2 and 3 that P.W. 3 performed his duty of collection of suspected adulterated food item 'besan' from the vendor namely, Nemichand Sharma, who absconded later on during trial of the case, making repeated attempt to call one or more independent persons present nearby to witness the collection under Section 10 (7) of the said Act, but they declined to stand as witness and as such, inability to comply with the aforesaid provision, in this Court's view, does not vitiate the validity of the prosecution, more particularly when the sample collection is not disputed by the defence.
10. A perusal of the report of the Public Analyst on the sample of the collected sample of 'besan' vide Ext. 43 shows that 'the sample of besan (Trichul Brand) is adulterated as per Rule 44A (f) of the Prevention of Food Adulteration Act, 1954 and Rules, 1955'. The CFL, in its report vide Ext. 51, held the opinion that "The sample does not conform to the standards of Besan laid down under item No. A.18.04 of Appendix 'B' of the PFA Rules (1955) in that sample shows presence of Khesari Dal. Hence, sample is adulterated." Thus, there is no material contradiction between the aforesaid two opinions that the collected samples of besan of the Mill of the petitioner was adulterated within the meaning of the definition 'adulterated' laid in Section 29(ia) of the PFA Act.
11. The crux of the whole dispute lies in the liability of the accused/ petitioner, who was Page No.# 5/5 nominated under Section 17(2) of the PFA Act by the Mill was responsible for the adulteration aforementioned. It is well settled that in spite of nomination of a Director or Manager to be responsible for the conduct of the business of the company, any other Director, Manager, Secretary or other officers of the company can also be made vicariously liable if it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of such persons. The relevant question in the present case is whether the accused petitioner, who was stated to be the Manager of the said Mill was vicariously liable to be punished for the offence being committed with his consent or connivance of or being attributable to his negligence. In this regard, the defence plea is that on the relevant day and time, the accused petitioner was not present as he was away outside the state and the samples in question were collected from the absconder accused Nemichand Sharma. The aforesaid defence plea finds force from the cross- examination of P.Ws 2 and 3, who have stated that at the time of collecting the samples, the accused petitioner was not found present. The evidence shows that it was Nemichand Sharma, the vendor, who stated that the petitioner was the Manager of the Mill on the day of collection of the samples of adulterated 'besan'. Even in his statement under Section 313 Cr.P.C., the accused petitioner stated that he was absent in the Mill and later on, after he returned, came to know about the said incident. Therefore, it is crystal clear that the adulteration of besan might have not taken place with his prior knowledge, consent or connivance or the act of adulteration was attributable to his negligence exposing him to punishment under the PFA Act beyond all reasonable doubt.
12. For the above stated reasons, the revision stands allowed setting aside the impugned judgments and orders, in respect of the accused petitioner and accordingly, the accused petitioner is acquitted of the charge under Section 16 (I)(a)(ii) of the PFA Act and set at liberty on benefit of doubt.
Send back the LCRs.
JUDGE Comparing Assistant