Calcutta High Court (Appellete Side)
Ramprasad Gupta & Anr vs State Of West Bengal & Anr on 21 September, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE PRESENT : The Hon'ble Mr. Justice Indrajit Chatterjee C.R.R. No. 1057 of 2004 Ramprasad Gupta & Anr.
-vs-
State of West Bengal & Anr.
For the Petitioner : Mr. Tirthankar Ghose,
Mr. Satadru Lahiri.
Mr. Manab Kumar Gupta.
For the KMC : Mr. Anindya Sunder Chatterjee,
Mr. Goutam Dinda.
For the State : Mr. Imran Ali
Heard On : 08-09-2016 & 15-09-2016
Judgment on : 21-09-2016
Indrajit Chatterjee, J.:- This Court is hearing this revisional application under Sections 401 and 482 of the Code of Criminal Procedure in which the judgment and order dated 30th March, 2004 as passed by the learned Additional Sessions Judge, Fast Track Court No.3, Bichar Bhawan, Calcutta, in Criminal Appeal No. 5 of 2002, has been assailed before this Court.
The learned First Appellate Court vide that judgment was pleased to affirm the judgment and order of conviction dated 18th December, 2001 passed by the learned Metropolitan Magistrate and Municipal Magistrate, (2nd Court), Calcutta, in Case No. 11 D of 1996 under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 and sentenced the present revisionists to suffer simple imprisonment for six months each and further directed to pay fine of Rs. 1000/- each, in default to suffer further imprisonment for one month.
It may be noted that the accused-convict no.1, Ramprasad Gupta, was the proprietor of M/s. Kunal Enterprise of 204, Maharshi Debendra Road, P.S. Jorabagan, Calcutta-6 and the convict-revisionist no.2 was found present in the shop at the time of inspection.
The fact relevant for the purpose of adjudication of this revisional application can be stated in brief thus :-
That on 02-07-1996, one B. N. Paul, the Food Inspector, appointed under Section 9 of the Prevention of Food Adulteration Act of 1954 (hereinafter called as the said Act of 1954) inspected the shop, named and style as M/s. Kunal Enterprise where Arahar Dal (lotus brand) was stored and exposed for sale for human consumption.
The said Food Inspector found the accused-revisionist no.2 there to whom he disclosed his identity and thereafter took a sample of 750 gms. of such Dal from the said accused no.2 in presence of two witnesses, namely, Rama Kanta Das and Barun Dey as contemplated and prescribed under the provisions of the said Act of 1954.
One part of the sample was forwarded to the Public Analyst and the Public Analyst opined that the sample was adulterated and as such, unfit for human consumption. On receipt of such report, such Arahar Dal weighing 48 kgs. were seized and sealed. Written consent was obtained from the CMHO and prosecution was lodged against both the revisionists-convicts in respect of the offence punishable under Section 16(1)(a)(i) read with Section 7 of the said Act of 1954. It may be noted that report of the public Analyst was not challenged by the convict petitioner No.2.
This revisional application has been preferred mainly on three grounds:
1) Non-compliance of Section 13(2) of the said Act of 1954;
2) Non-projection in the report of the Public Analyst how he arrived at the conclusion; and
3) That the learned Trial Court only in one question examined the accused persons under Section 313 of Cr.P.C. which has caused prejudice to the revisionists.
The scope of any revisional application is very limited and that too when trial court and the Appellate Court already decided the matter against the convicts revisionists.
This court must restrict itself to see whether the courts below did not follow the established procedure of law and interpretation of the section involved.
On the point no.1, Mr. Ghose, learned Advocate, appearing on behalf of the petitioners by taking me to the evidence of P.W.-2, Amalesh Bhowmick, one employee of CMHO, tried to convince this Court that the report of the Public Analyst was not at all forwarded to the revisionist no.1, Ramprasad Gupta. The learned Trial Court proceeded to say that the accused person who got copy of the report never applied for examination of the sample by the Central Food Laboratory. Thus, Mr. Ghose contended that there is specific non- compliance of Section 13(2) of the said Act of 1954 and as such, no conviction can sustain as against the said revisionist.
On this point, the learned counsel cited a decision of the Hon'ble Apex Court as reported in 1996 SCC (Cri) 75 (Rameshwar Dayal -vs- State of U.P) wherein the Apex Court held that non-supply of the report of the Public Analyst to the accused will cause serious prejudice to him and conviction cannot be sustainable on that score only.
Regarding point no.2, it was submitted by Mr. Ghose by taking me to the report of the Public Analyst dated 31-07-1996 (marked as Exhibit-6 before the Trial Court) to convince this Court that the Public Analyst came to the opinion that the Arahar Dal was adulterated only because unpermitted coal tar dye, namely, Metanil Yellow was used which was injurious to health. He took me to the Single Bench decision of this Court as reported in 2003 C Cr.LR. (Cal) 276 (Ashok Kapri -vs- Iswar Chandra Jana) wherein the Single Bench in paragraph-19 proceeded to say "in my opinion, such report of the Public Analyst does not contain the result of analysis in a manner from which it can be inferred that the article of food was adulterated and having regard to the nature of the Act in question, its penal provision and its far reaching consequences, nothing can be left to uncertainty. The Single Bench further proceeded to say that such case demands dotting of every 'i' cutting of every 't'.
Mr. Ghose also took me to paragraph-10 of the said judgment wherein the report of the Public Analyst as placed before the learned Trial Court in that case was reflected along with the report of the Central Food Laboratory.
"10. The report of the Public Analyst dated 17th August, 1993 which had been marked 'Ext.9' contains the following opinion :-
"The sample is adulterated as it contains a non-permitted coaltar dye, Metanil Yellow which is injurious to health". The report of the Director, Central Food Laboratory dated 14th October, 1993, which had been marked 'Ext. 17' gives the following opinion :-
"Sample contains non-permitted coaltar dyes vis. Metanil Yellow and Orange II and hence contravenes Rule 28 of the P.F.A. Rules, 1955".
Thus, Mr. Ghosh, submitted that in this case, even the second accused ought not to have been convicted in respect of the charge only on that ground itself.
Regarding, point no.3, Mr. Ghose submitted by taking me to the examination-sheet of the accused person under Section 313 of Cr.P.C. in respect of accused, Kamalesh Prasad Gupta (page 49 of the L.C.R.) wherefrom he tried to convince this Court that questions were clubbed together and as such, prejudice was caused to the accused persons.
Mr. Ghose concluded his argument by saying that the matter is pending since 1996 and the long pendency of the case may also be taken into consideration by this Court while disposing of this criminal revisional application.
On behalf of Kolkata Municipal Corporation Mr. Anindya Sundar Chatterjee, learned Advocate submitted by taking me to Section 13(2) of the Act of 1954 to convince this Court that the report of the Public Analyst only ought to have been forwarded to the person who was selling the product at the material point of time and as such argument of Mr. Ghosh on that score cannot be tenable.
Regarding the judgment of the Apex Court as passed in Ramprasad (Supra) he submitted that on fact this decision will not apply as in that case before the floor of the Apex Court only one accused was there and here two persons were tried, one was found selling the articles and another was the owner of the shop. Regarding the report of the Public Analyst Mr. Chatterjee argued by taking me to the report (Exhibit 6) that the said report is perfectly in order as the Public Analyst found along with others, unpermitted 'Coal Tar Dye' viz, Metanil Yellow which is injurious to health. He tried to substantiate his argument that this report was in order took me to Appendix B (A 18.06.09) of the Prevention of Food Adulteration Rule, 1955 (hereinafter called the said Rule) wherein it has been described what one 'Arhar Dal' will contain.
Regarding examination of the accused persons under Section 313 of the Criminal Procedure Code, he has left the matter to the discretion of the Court.
In reply Mr. Ghosh submitted by taking me to the report of the Public Analyst again to say that the said report of the Public Analyst did not decipher the word 'Metanil Yellow' prepared under the said Act of 1954. He further submitted by taking me to the decision of the Apex Court in the case of State of Gujrat & Anr. Vs. Shaileshbhai Mansukhlal Shah and Anr., reported in (2007) 3 SCC 313 to say that the Supreme Court in that decision always used the word accused person. He submitted by that if one accused is entitled to get a copy of the report of the Public Analyst then it cannot be said that the second accused cannot claim such a report and if that be the interpretation that the second accused is not entitled to get a copy of the report then the right of the accused will be prejudiced as it will not be possible for him to challenge the report of the public Analyst before the Central Food Laboratory.
Before I give answer to the arguments of the learned Advocates appearing for the respective parties I must quote here the relevant portion of Section 13(2) of the said Act of 1954 :-
"13(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory." (emphasis supplied by me).
As regards point no.1: that is non-service of the report of the public analyst to the owner of the shop that is the revisionist No.1 this court on reading and rereading Section 13(2) of the Act of 1954 is of the opinion that this convict/revisionist was not entitled to receive the said report. I get support of my view from the language used in that Sub- Section itself, "................. from whom the sample of the article of food was taken and the person, if any, in whose name, address and other particular have been disclosed under Section 14A ................". Section 14A of the said Act of 1954 indicates the person from whom the vendor purchased the article of food. Here in the instant case, there is nothing on record to show that the revisionist No.2 who was the vendor disclosed the name of the person from whom he purchased the food item. The owner revisionist No.1 also did not disclose the same.
Thus, there is no relevance to attract Section 14A of this Act of 1954 in this case before the floor of this court. The decision of the Apex Court as passed in Rameshwar Dayal (Supra) will not apply in the instant case as in that case before the floor of the Apex Court there was only one accused/appellant and naturally the Apex Court was not asked to answer as to whether the co-accused from whom sample was not taken was entitled to get a copy of the report of the public analyst.
The other decision of the Apex Court as passed in S. M. Shah (supra) will not apply on fact as it was regarding the payment of fees for the second analysis by the Central Food Laboratory and in that case the Apex Court was not asked to interprete as to the claim of the co-
accused who get a report of the public analyst even though such sample was not taken from him.
Regarding the point No.2 as to whether the report of the public analyst was not in consonance with the established principles of law. This court prefers to say that public analyst found in his report (Exhibit
6) found "unpermitted Coaltar namely Metanil Yellow which is injuries to health. Hence it is adulterated and unfit for human consumption." The Chromato graphic Test conforms to the presence of 'Metanil Yellow'.
Rule 5 of the Rules of 1955 as prepared under the Act of 1954 has defined the standards of quality of various articles of food as specified in Appendices B, C and D to those rules are defined in those Appendices. Appendix B (A 18.06.09) of the said Rule has prescribed the standard of Arohar Dal. This standard has not prescribed any use of colour. The report shows that the said Arohar Dal was adulterated as per Chromato Graphic Test Metanil Yellow (Coltar Die) was found in the sample. It is not required to say in the report wherefrom the public analyst came to that finding. The crude example may be given by me suppose a patient goes to pathological laboratory for assessing his Haemoglobin percentage of his blood and if the pathological laboratory reports that the HB percentage was 13.5 can the pathologist be asked to say how he arrived at the said conclusion unless his report is challenged before the proper authority.
In the instant case, before the floor of this court this report (Exhibit 6) of the public analyst was not challenged by the Revisionist No.2 before the Central Food Laboratory and as such on scrutiny of this Exhibit 6, I can safely say that both the courts below came to correct finding that sample of Arohar Dal as seized was adulterated and based their findings relying on the said report.
This court is not unmindful of the decision of this court in Ashok Kapri (supra) but on fact it is distinguishable from this case as in that case the report of the public analyst was challenged before the Central Food Laboratory and contrary report was given by the Central Food Laboratory.
It is true that as per Rule 28 of the Rules of 1955 some permitted colours have allowed to be used. 'Yellow' colour may contain 'Tartrazine Sunset Yellow FCF' thus even the permitted food colour cannot cover 'Metanil Yellow' which is a Coaltar. Thus, on scrutiny of the relevant Rules this Court is satisfied that the said Arohar Dal which was taken as sample was adulterated and there is nothing on record to impeach the report of the public analyst.
This court is of the opinion that it cannot be said that the report of the public analyst was not in consonance with the established principles of law.
The third point agitated by the learned advocate on behalf of the revisionists was that the accused persons were prejudiced as the questions were not asked when they were examined under Section 313 Cr.P.C. The learned counsel took me to the examination sheet as recorded by the learned Magistrate under Section 313 of the Cr.P.C. On reading the answers given by the revisionists in answer to the questions put by the learned Magistrate this court is satisfied that no prejudice was caused to the accused/revisionists.
It is now a settled law that unless specific prejudice is shown as regards examination of the accused/appellants under Section 313 of the Cr.P.C no conviction can be set aside on that score. I cannot concede to the argument of Mr. Ghosh that the accused persons were prejudiced in the way how the 313 examination was recorded. Thus, on scrutiny of the entire record, the judgment passed by the learned trial court, judgment of the court of Appeal, the oral and documentary evidence relied upon by the prosecution this court is satisfied that there was no material irregularity in the said proceedings either before the trial court or before the first appellate court and as such this court is not incline to exercise its revisional power in favour of the accused/revisionists. It is true that this revisional application is pending since last 12 years but it is the system and none can go beyond the system. The accused/revisionist cannot get any special benefit for the long pendency of this revisional application.
Thus, in view of the discussion so long made, this court is pleased to dismiss the revisional application. All interim orders granted by this court earlier are hereby vacated.
The accused/revisionists must surrender before the learned Municipal Magistrate, 2nd Court, Calcutta, within 15 days from this day, to serve out the sentence as imposed by the trial court and to pay fine as directed.
Failure to surrender will entitle the learned trial court to issue warrant of arrest against the both these revisionists.
Department is directed to forward the Lower Court Record to the learned trial court at once by special messenger along with a copy of this order for necessary action on its party.
Certified copy of this order, if applied for, be given to the parties as per rules on priority basis.
(Indrajit Chatterjee, J.) Later:-
After the judgment is delivered, it is submitted by Mr. Manab Kumar Gupta, learned Advocate, appearing on behalf of the convicts/revisionists that let the operative portion of the judgment be stayed for a month as his clients will prefer Special Leave Petition before the Hon'ble Apex Court.
None is there to oppose the prayer as made out.
Considering the legal proposition involved in this matter, let the operative portion of the judgment be stayed till 2nd November, 2016 considering the fact that Puja Vacation intervenes.
It may be noted for future reference that this stay order will not be extended further.
Department is directed to forward a copy of this order also to the learned trial court.
(Indrajit Chatterjee, J.)