Gauhati High Court
Anil Das vs The State Of Assam on 20 May, 2011
Author: P K Musahary
Bench: P K Musahary
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,
Mizoram and Arunachal Pradesh)
Criminal Revision Petition No.418 of 2003
Sri Anil Das,
S/o Sri Surendra Das,
Sarat Pally, Silchar Town,
District- Cachar, Assam.
- Petitioner.
-Versus-
State of Assam
..Opposite party
BEFORE
THE HON'BLE MR. JUSTICE P K MUSAHARY
Advocates for the petitioner : Shri N.Choudhury, Advocate
Shri S C Koyal,Advocate
Shri S K Ghosh,Advocate
Advocate for the State : Shri B.B.Gogoi,Addl. P.P. Assam.
Date of hearing : 21.04.2011
Date of judgment : 20 .05.2011
2
JUDGMENT AND ORDER (CAV)
The convict-petitioner has preferred this revision petition
against the judgment and order dated 17.6.2003 passed by the learned
Sessions Judge, Cachar, Silchar in criminal appeal No.9(1) of 2003
dismissing the appeal and affirming the judgment and order dated
17.2.2003passed by the learned Chief Judicial Magistrate, Cachar, Silchar in CR case No.1701 of 1997 convicting the petitioner under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.1000/- in default to suffer another term of one month.
2. Heard Mr.N.Choudhury, learned counsel for the petitioner and Mr. B.B.Gogoi, learned additional public prosecutor, Assam. Also perused the impugned judgment.
3. The prosecution case is that one Sri S.Dutta, a Senior Food Inspector visited the shop of one Munindra Chandra Paul at Fatak Bazar, Silchar where petitioner was found as a salesman in the said shop. The said Food Inspector purchased 300 gms of turmeric powder from the petitioner and then sent it for analysis whereupon it was found that the sample contained rice powder mixed with turmeric powder and accordingly an offence report was submitted to the court of learned Chief Judicial Magistrate, Cachar, Silchar against both Munindra Chandra Paul and the petitioner.
4. The learned Chief Judicial Magistrate, Cachar framed charge under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter in short, the Act‟) against both Munindra Chandra Paul, owner of the shop and Anil Das, salesman, which was read over and explained to them. Both of them pleaded not guilty and 3 claimed to be tried. In order to prove the charge, the prosecution examined two witnesses and the defence also examined three witnesses. The prosecution proved and exhibited 21 documents including the offence report Ext.16 and report of the public analyst, Ext.13.
5. The prosecution failed to prove that accused Munindra Chandra Paul was the owner of the shop and as such he was acquitted by the learned trial court. However the prosecution succeeded in proving that accused Anil Das, present petitioner is the owner of the shop from where the turmeric powder was recovered. On the basis of the report of the public analyst, Ext. 13 and on the basis of evidence on record the accused petitioner, Anil Das was convicted and sentenced as mentioned above. He preferred an appeal before the learned Sessions Judge, Cachar, Silchar and the same was dismissed upholding conviction and sentence awarded by the learned trial court.
6. The appeal petition so filed before the learned Sessions Judge, Cachar, Silchar was registered as Criminal Appeal No.9(1)/03. The petitioner stated that he is the owner of a foot path shop of Uddhri Bazar at Fatak Bazar, P.O- Silchar owned on temporary basis which was demolished by the Silchar Municipality with the help of excavator machine on 17.2.2003. His shop situated on the drain of Municipality at Fatak Bazar and he was residing in the house of accused Munindra Chandra Paul of Sarat Pally, P.O-Silchar as a tenant. Taking into consideration this statement of the petitioner, it stands as an admitted position that the accused petitioner Sri Anil Das was the owner of the shop and he was in possession of the alleged adulterated turmeric powder. In view of this position, this court feels it unnecessary to deal with the question as to whether the petitioner was the owner of the shop in question.
7. The accused petitioner, in his appeal petition before the learned Sessions Judge stated that he deals in lime, soda, soap, fitkari, 4 empty plastic jar, bottle, bleaching powder etc. as a petty shop keeper with a capital of about Rs.1000.00/ 1200.00 only. He is not paying any rent to the Silchar Municipality. The Municipal lessee , one Md. Anowar Hussian Sadial, used to collect tolls from accused Anil Das through his employee Md. Abdul Zahid Laskar, by issuing coupons to him. He also stated in the appeal petition that he was not selling any spices. One Sankar requested him to purchase 500 gms of turmeric powder as he was in trouble before two days from the date of occurrence. He being an illiterate person, purchased the said turmeric powder on good faith and he had no knowledge that said turmeric powder was adulterated and the Food Inspector, P.W.1, collected 300 gms of turmeric powder for analysis. The accused petitioner, in his evidence, has not denied the visit of Food Inspector, P.W.1 and collection of 300 gms of turmeric powder from his shop. He also did not deny the fact that samples of turmeric powder were collected from his shop in presence of some witnesses. One of such witnesses is Sankar Ch. Paul, who was examined as P.W.2. This P.W.2 is the owner of an adjacent „gur‟ shop, who testified that Food Inspector, P.W.1, visited the shop of accused-petitioner and collected samples of three pkts of turmeric powder for chemical analysis. The samples were packed and sealed in his presence. This P.W.2 has corroborated the evidence of Food Inspector, P.W.1, that he visited the shop of accused petitioner, collected samples of turmeric powder packed and sealed in presence of independent witnesses and sent them for public analysis. The said facts stood proved by the prosecution.
8. A technical ground was taken by the accused petitioner that the report of the public analyst was not furnished to him as required under Section 13(2) of the Act, which has caused prejudice to him. But the prosecution has proved the fact of furnishing the report through Exts. 18 and 19 and the said ground is of no avail to him. The accused petitioner also took another plea that the prosecution sanction was not obtained. In this regard the learned Sessions Judge on perusal of the records, particularly Ext.15, came to conclusion that the local health authority, after 5 due application of mind granted written consent for prosecution. I have verified it from Exb.15 and found that the local health authority (Food Inspector, Cachar, Silchar in his capacity of Joint Director of Health Services)Silchar on being vested with power, conveyed written consent for launching prosecution against the accused persons. The fact of obtaining prosecution sanctioned having been proved by the aforesaid evidence, in my considered view, the aforesaid technical ground is also of no avail to the accused petitioner.
9. The accused petitioner has taken yet another ground that he was a boy of 15 years only at the time of commission of alleged offence and the learned courts below committed error in not granting probation U/S 360 of the Cr.P.C. and as such the impugned conviction and sentence is liable to be set aside and quashed. Before dealing with this aspect, I feel it necessary to find out whether the turmeric powder in question falls within the meaning of "adulterated" articles of food as defined in Section 2( i-a) of the Act. Explanation to the aforesaid definition is important for the purpose of answering the question as to whether the turmeric powder in question is adulterated. It is, therefore, reproduced herein under:
" 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 donotes 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;"
10. As per report of the public analyst, Ext.13, the turmeric powder in question is mixed with powdered rice which is not injurious to health. The said report does not say that the turmeric powder in question was processed as to affect, injuriously the nature, substance quality thereof or it was prepared, packed or kept under insanitary condition whereby it 6 becomes contaminated or injurious to health. No evidence was led by the prosecution in this regard to prove that the turmeric powder in question is adulterated in any manner within the meaning of Section 2(i-a). There is no evidence to the effect that powdered rice found mixing with the turmeric powder is injurious to health. The operative portion of said report of public analyst, Ext.13 is quoted herein under:
" I further certify that I have/had caused to be analysed the aforementioned samle, and declare the result of the analysis to be as follows:
PHYSICAL: PALE YELLOE IN COLOUR.
Moisture .. 9.91%
Total Ash .. 5.60%
Ash insoluble in dil Hel .. 1.17%(by weight)
Test for lead chromate .. Negative.
Total starch .. 47.69%(by weight)
Added powdered Rice .. 30%(approx)
and am of the opinion that the sample of Turmeric (Powder) is adulterated ..."
11. Rule 5 of the Prevention of Food Adulteration Rules, 1954 (hereinafter referred to „ Rules‟ only), provides for definition and standards of quality of various articles of food specified in appendices B,C and D. Turmeric (Haldi) powder comes under Appendix B of the Rules at A.05.20.01,-TURMERIC (Haldi) POWDER obtained by grinding dried rhizomes or bulbous roots of the plant of curcuma Longa L. It shall be free from artificial colouring matter. The powder shall conform to the following standards:
"Moisture.............Not more than 13.0 per cent by weight. Total ash............ Nor more than 9.0 per cent by weight Ash insoluble in dilute HCl..Not more than 1.5 per cent by weight. Test for lead chromate.......Negative.
Total starch per cent by weight.....Not more than 60.0 per cent."7
12. In the present case, the adulterant is the added powdered rice which is 30% approximately. As per report Ext.13, it contains total starch 47.69% by weight which is much below the permitted limit of percentage of starch by weight at 60.0 per cent at the maximum as per said Rules quoted above. As per said report Ext.13 read with definition of adulterant U/S 2(i-a) and also definition of „adulterated‟ U/S 2 (i-a) and also the definition of turmeric (Haldi) powder under the Rules as quoted above, the turmeric powder in question is not found to be adulterated. If the food articles is not found adulterated within the definition provided under the Acts and Rules, in my considered view, the accused petitioner cannot be held guilty under the Act. The learned court below failed to apply judicial mind to the requirements of law for holding accused petitioner guilty.
13. In the aforesaid facts and circumstances of the case, the accused petitioner cannot be convicted and sentenced as has been done by the learned courts below. The conviction and sentence as awarded by the learned courts below against the accused petitioner, is therefore, liable to be quashed and set aside. Accordingly, the impugned judgment and order passed by the learned Chief Judicial Magistrate as well as the learned Sessions Judge, Cachar Silchar stands quashed and set aside. The accused petitioner is acquitted from the charges U/S 7/16 of the Prevention of Food Adulteration Act, 1954. Petition stands allowed.
14. The bail bond stands discharged.
15. Sent down the LCR forthwith.
JUDGE Nandi