Gauhati High Court
Shri Niranjan Kumar Agarwala vs The State Of Assam on 16 February, 2012
Author: P.K.Musahary
Bench: P.K.Musahary
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM AGALAND,MEGHALAYA,
MANIPUR,TRIPURA,MIZORAM AND ARUNACHAL PRADESH)
CRL.Rev.(P) No. 90/2004.
Shri Niranjan Kumar Agarwala,
Son of Radheshyam Agarwala,
Proprietor of M/S Shree Shanti
Store, F.A. Road, Kumarpara,
P.O.- Guwahati, Kamrup, Assam. ...... Convict/petitioner
-Versus-
The State of Assam. ....... Opp. Party
PRESENT
THE HON'BLE MR. JUSTICE P.K.MUSAHARY
For the petitioner :- Mr. O.P.Bhati,
Mr. M.K. Jain,
Mr. A. Biswas
Advocates
For the respondent: Mr. K.Munir, Addl.P.P,Assam.
Date of CAV : 23.01.2012.
Date of judgment :- 16.02.2012
JUDGMENT AND ORDER (CAV)
1. The petitioner was convicted and sentenced to undergo R.I.
for 6 (six) months and to pay a fine of Rs. 1,000/- in default to suffer another period of 1 month's R.I. U/S 7 read with Section 16 of the Prevention of Food Adulteration Act vide judgment and order dated 16.3.99 rendered by the learned Judicial Magistrate 1st Class, Guwahati in Case No. 514 C/94. The appeal preferred by him, being Criminal Appeal No. 3 /99, was dismissed by the learned Ad-hoc Additional Sessions Judge, Kamrup,Guwahati vide judgment dated 31.12.03 affirming the said conviction and sentence. Hence, the 2 petitioner has filed the present petition challenging the aforesaid conviction and sentence.
2. Shortly stated, the prosecution case is that one Shri Kamini Kanta Barman, Food Inspector (Senior), Kamrup, Guwahati visited the grocery shop (Shri Santi Store) situated at Kumarpara,Guwahati on 8.2.94.The accused Shri Niranjan Kumar Agarwal , the sole proprietor of the said shop, was present at the shop at that time. The Food Inspector inspected the articles of food kept at the shop for sale. He, disclosing his identity as Food Inspector, took samples of "Moong Dal" on payment of price thereof after duly serving notice in Form No. VI. The sample was taken in presence of one Shri Satin Bharali, an office peon (PW-2). The Food Inspector packed and sealed the samples after complying with the requirements under the provision of Food Adulteration Act and Rules. One part of the samples drawn along with necessary memorandum was sent to the Public Analyst, Govt. of Assam and the other two parts to the Local Health Authority. The Public Analyst after analysing the samples so received, submitted the report with opinion that the sample of "Moong Dal" was " artificially coloured with non permitted coal tar "
colour metanil yellow and hence was adulterated". The Food Inspector obtained necessary leave from the higher authority i.e. Local Health Authority and filed complaint before the learned C.J.M, Kamrup, Guwahati who, on consideration of materials on record, framed charge U/S 16 read with Section 7 of the Act against the petitioner. He pleaded not guilty.The prosecution examined 2 witnesses and exhibited as many as 14 documents to prove its case.
The petitioner,after being examined by the learned trial court U/S 313 Cr.P. was given chance to adduce his evidence. He denied all the incriminating evidence on record against him and examined himself only as defence witness. On conclusion of trial, the learned 3 court convicted and sentenced the petitioner which was affirmed by the learned Appellate court below as stated earlier.
3. I have heard Mr. O.P.Bhati, learned counsel for the petitioner and Mr. K.Munir, learned Addl.P.,Assam for the respondent-State.
4. Mr. Bhati, first of all submits that P.W-1, Food Inspector although claimed that he requested some persons to be witness at the time of drawing the samples, packeting and sealing of "Moong Dal" from shop of the accused/petitioner, none agreed to be witness , he did not disclose the names of those persons whom he met and called to be witness. The Food Inspector even did not disclose the names of the nearby shops he visited requesting the shopkeepers to be witness. In absence of such evidence, according to him, the conviction of petitioner on the basis of evidence of an office peon, who is not an independent witness in true sense, is not sustainable in law. Moreover, he submits that inspection report ( Ext.3) is silent about the claim of the Food Inspector that while he visited the petitioner's shop, he searched for independent witness and none was ready to be a witness. The prosecution led no evidence in support of the same and, therefore, it is apparent that there was non-compliance of mandatory provision U/S 10(7) of the Act vitiating the procedure of taking samples as well as the entire proceedings against the accused/petitioner.
5. The second limb of submission is that the learned courts below erred in law in appreciating the evidence of the petitioner who examined himself as DW-1 that he purchased the "Moong Dal" from M/S B.N.Traders,Jail Road,Guwahati in support of which the petitioner produced Ext. Ka, Cash Memo dated 6.2.94, in compliance 4 to the provision U/S 19(2) of the Act and he did not adulterate the same in his shop and in coming to a wrong finding that the said Exhibit Ka ( Cash Memo ) was not produced till 26.2.97 i.e. the date of deposition, on misconception of law and that the same is required to be produced by the petitioner before recording the evidence.
6. The law as regards adducing evidence on seizure and recovery of suspected food item has been settled in Narangalal Agarwalla Vs. State of Assam , reported in 1993(2) GLJ 143.The findings of the learned court below is that P.W-2 is not a peon under the Food Inspector P.W-1 but he is an employee of Local Health Authority whereunder P.W-1 is also serving and hence his evidence cannot be rejected on the ground that he is interested in the prosecution. In the above cited case, similarly an office peon of Local Health Authority was examined as a witness. It was held therein that a peon in the office of the Local Health Authority is not dependant on the Food Inspector and can be treated as an independent witness. It was also held therein that Section 10(7) of the Act does not require that the Food Inspector must call one or more persons from outside the shop. In view of the above settled position of law, the findings and decisions arrived at by the learned courts below on this aspect of the matter calls for no interference and the same is accepted as the correct position of law.
7. The law as regards production of cash memo and acceptance thereof as a piece of evidence to prove the purchase of food items in question, has been discussed by this court in several cases namely ;
5
(1) Babulal Jodhani Vs. State of Assam ;1989(2) GLR 407 (2) State of Assam Vs. Shyamlal Agarwal; 1993(1) GLJ
498. (3) Chandan Das Vs. State of Assam ;2005(2) GLT 379 In Babulal's case ( supra) the cash memo was produced by the accused but it was not seized by the Food Inspector. However, the accused appeared before the learned trial court and produced the cash memo which was exhibited as Ext. "Ka" in support of purchase of food item in question from the manufacturer. The learned trial court, without taking into consideration the cash memo so produced by the accused, convicted and sentenced him. The Appellate court also rejected the cash memo due to confusion over the date of purchase. In revision this court, set aside the conviction and sentence holding that the accused proved the warranty by producing the cash memo and the convict/petitioner was entitled to get protection U/S 19(2) of the Act.
8. This court took similar view in shyamlal's case ( supra) and held that the cash memo produced by the accused vendor before the trial court is a warranty in view of the proviso to Section 14 of the Act and it provides protection to him U/S 19(2) of the Act.
9. The learned counsel for the convict /petitioner largely relied on the decision of this court in Chandan Das's case ( supra). The ratio of decision in Babulal Jodhani's case ( supra) has been accepted and followed in the said case after making elaborate discussion on the provisions U/S 14 A and 19(2)(a)(b) of the Act . Section 14 provides for giving warranty by the manufacturers, distributors and dealers. It also provides for issuing bill, cash memo 6 or invoice in respect of the sale of any article of food given by the manufacturer or distributor or dealer to the vendor. The amended provision under Section 14 A of this Act requires the vendor to disclose the name and particulars of the person from whom the article of food was purchased by him. It is provided therein that every vendor of an article of food shall, if so required disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food. What is the consequence of non disclosure of names and particulars of the person from whom the food item was purchased, has been discussed in paragraph 9 of the said judgment which is quoted herein for better appreciation.
"9. Coming to the case in hand the accused petitioner has proved the warranty by producing the cash memo which was exhibited as ext. Ka. He has also stated on oath that while the ghee was in possession be stored the same properly and sold it in the same state. This has been proved by giving evidence on oath by the accused petitioner and in my opinion this is sufficient as there is no contrary evidence. I therefore, hold that the accused -petitioner is entitled to get protection under sub-section (2) of section 19 of the Act and as such he shall not be deemed to have committed any offence under the Act. I further hold that the learned appellate court below erred in law is not considering the above provisions of law vis-à-vis evidence on record and as such the impugned judgment and order is liable to set aside".
10. In the instant case, it is found from the evidence of DW-1 (convict/petitioner ) that he could not produce the cash memo as his Accountant was not present in the shop at the time when the Food Inspector visited his shop. The learned trial court as well as the appellate court also refused to accept the defence put up by the petitioner. It was observed by the learned trial court that the Food Inspector (P.W 1 ) took samples as far back as on 8.2.84 but the existence of Ext. "Ka" ( cash memo) was disclosed by the accused at the time of making deposition only in the court on 26.2.97 i.e. after 7 more than 3 years. This position is indisputable .The petitioner , admittedly produced the cash memo only after the commencement of the trial. But the Food Inspector (PW-1) in his evidence stated that he asked the petitioner from whom he purchased the " Moong Dal.He could not say from whom he purchased. He also stated that the convict/petitioner could not show any receipt ( cash memo). As against this evidence the petitioner, deposing as DW-1, stated that he purchased the " Moong Dal" from B.N.Traders but he could not produce the cash memo as his Accountant was not present in the shop.
11. The prosecution did not cross-examine the petitioner elaborately. However, it was suggested by the prosecution that the cash memo was manufactured subsequently for which the convict/petitioner could not produce the same as demanded by the Food Inspector at the time of taking the samples. But he denied the said suggestion. Apparently, the evidence of DW 1 is contradictory inasmuch as he could not show any cash memo to P.W-1 but if the explanation given by him is considered, the same is found to be acceptable as he stated that he could not produce the cash memo as his Accountant was not present at the relevant point of time . The prosecution could not demolish the evidence of the petitioner as no evidence was brought on record that the petitioner had no Accountant to look after affairs of his business. It is not unusual that the owner of the shop does not know or remember which of the items kept in the shop for sale have been brought from which particular manufacturer(s), distributor(s) or wholesaler(s) etc. It is possible that the cash memo and other documents of the shop are maintained by the Accountant. It was not even suggested by the prosecution that M/S B.N.Traders was not in existence at the 8 relevant point of time or even if it was existing, the Ext." Ka" cash memo was not issued by the said B.N.Traders. The learned appellate court simply disbelieved the defence story of existence of cash memo because it was produced by the convict/petitioner only at the time of recording evidence and it was never brought on record earlier. It must be noted that during trial the prosecution raised no objection to marking of the cash memo as an exhibit. It was exhibited and marked unopposed. The law of evidence is that when a document is proved and exhibited during trial without any objection from the other side, it must be acceptable as a valid piece of legal evidence and such document can be taken into consideration in deciding the relevant issue involved. In my considered opinion the prosecution is precluded from questioning the admissibility and or acceptability of the Exhibit " Ka" as a piece of evidence and the learned courts below erred in law in rejecting the evidence adduced by the convict/ petitioner by way of producing and proving the Exhibit "Ka" cash memo. There is no law in criminal trial, that the defence is bound to disclose its supporting documentary evidence before hand i.e. before the trial commences. The accused is called upon for entering into his defence only after conclusion of recording evidence of prosecution witness and examination U/S 313 CrPC. In the instant case, at the time of examination U/S 313 CrPC, the convict/petitioner expressed his desire to adduce evidence and accordingly, he examined himself as DW-1 and during recording of his evidence he produced the cash memo and got it proved and exhibited as stated earlier. No fault can be attributed to proving of the said cash memo at the time of recording the evidence. In view of the above discussion, I come to the conclusion that the convict/petitioner by producing the cash memo has been able to prove the fact that he was in possession of the cash memo issued by 9 M/S B.N.Traders from whom he purchased the " Moong Dal" in question and he is not liable to be punished under the existing provisions of the Act. As held by this court in Chandan Das's case ( supra), when the dealer or a distributor who had issued the bill or cash memo declines or refuses to appear before the court , the vendor may be at liberty to prove the cash memo or bill as required under the law and the benefits available to him U/S 19(2) may not be denied to him. From the said decision, it can be held that the vendor is not under legal obligation to produce the dealer or the distributor who issued the bill or cash memo, to prove that the bill or cash memo was issued by him or it.
12. From the above discussion made on the basis of the ruling /decision of this court and also the provision under the existing Act, there is no difficulty for this court in coming to a conclusion that the learned courts below misconstrued themselves in convicting the petitioner by misinterpreting the existing law under the Act and also by mis-appreciating the evidence on record.
13. In the result, the present petition is allowed. The conviction and sentence recorded by the learned trial court and affirmed by the appellate court are set aside. The convict/petitioner is acquitted. It is stated that the convict/petitioner is on bail and hence the bail bond stands discharged.
14. Return the LCRs.
JUDGE