Tarun Saha Vs the State of Assam and Anr.

Heard Mr. H. Buragohain, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent.

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2 . By way of the present criminal revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, the petitioner has called in question the judgment dated 13.12.2012 passed by the learned Sub-Divisional Judicial Magistrate, Bijni, in C.R. Case No. 19/2007, whereby the petitioner was convicted under Section 16 read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act of 1954”) and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-, with a further sentence in default. The petitioner has also assailed the judgment dated 03.08.2016 passed by the learned Sessions Judge, Chirang, Kajalgaon, whereby the appeal preferred by the petitioner was dismissed and the judgment of conviction and sentence passed by the trial Court was affirmed.

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3 . The prosecution case, in brief, is that on 30.08.2006, the Food Inspector, Bijni, accompanied by staff of the office of the Sub-Divisional Medical and Health Officer, Bijni, visited the grocery shop of the petitioner, namely M/s Tarun Saha, for inspection of food articles stored for sale and intended for human consumption. During inspection, the Food Inspector suspected the quality of masur dal kept in an open

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gunny bag containing approximately 25 kilograms. Consequently, he purchased 1500 gram thereof after serving notice in Form 6 and paying the sale consideration of Rs.36/-. The sample was thereafter processed in accordance with the procedure prescribed under the Act and the Rules framed thereunder and one part thereof was forwarded to the Public Analyst for analysis. The Public Analyst, upon examination of the sample, reported that the same was adulterated. Thereafter, upon obtaining the requisite sanction from the competent authority, the Food Inspector instituted a complaint before the learned trial Court. The statutory communications, including the analyst’s report, were also duly forwarded to the petitioner.

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4 . Upon taking cognizance of the offence under Section 7 read with Section 16 of the Act of 1954, the learned trial Court issued process against the petitioner. Charge under Section 16 read with Section 7(i) of the Act of 1954 having been framed, the petitioner pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined three witnesses and exhibited several documents.

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5 . The statement of the petitioner under Section 313 Cr.P.C. was thereafter recorded, wherein he denied the incriminating circumstances appearing against him. No evidence was adduced in defence. Upon appreciation of the evidence adduced by the prosecution, the learned trial Court found the petitioner guilty and convicted and sentenced him accordingly. Aggrieved thereby, the petitioner preferred an appeal before the learned Sessions Judge, Chirang, Kajalgaon. The learned appellate Court, upon re-appreciation of the evidence and materials available on record, affirmed the findings recorded by the trial Court and

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dismissed the appeal by judgment dated 03.08.2016.

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6 . Mr. H. Buragohain, learned counsel appearing for the petitioner, submits that both the Courts below committed serious errors in law and on facts while recording conviction against the petitioner. It is contended that the sample collection process stood vitiated as no independent witness was associated with the collection of the sample. According to the learned counsel, the only witness present during the collection process was one Ramani Ray, a Grade-IV employee attached to the office of the Sub-Divisional Medical and Health Officer, Bijni, and therefore the mandatory requirement under Section 10(7) of the Act of 1954 stood violated. It is further contended that the learned trial Court failed to consider the applicability of the provisions of the Probation of Offenders Act, 1958 while imposing sentence.

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7 . Per contra, Ms. A. Begum, learned Additional Public Prosecutor appearing for the State, submits that the evidence on record clearly establishes that the Food Inspector had made sincere efforts to secure independent witnesses before proceeding with the sample collection. However, none agreed to witness the process. In such circumstances, Ramani Ray, who was accompanying the Food Inspector, was requested to witness the proceedings. It is further submitted that PW-2, namely Ramani Ray, has fully corroborated the testimony of PW-1 and the prosecution case stands independently supported by the reports of both the Public Analyst and the Central Food Laboratory. Accordingly, no interference is warranted in exercise of revisional jurisdiction.

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8 . I have considered the submissions advanced by the learned counsel for the parties and have carefully examined the records of the

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case.

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9 . PW-1, Sri Jayanta Kr. Das, the Food Inspector, has deposed in detail regarding the collection of the sample, issuance of notice in Form 6, payment of the sale consideration, division and sealing of the sample, forwarding of the same for analysis and compliance with all statutory formalities prescribed under the Act and Rules framed thereunder.

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10 . PW-2, Sri Ramani Ray, corroborated the testimony of PW-1 regarding the inspection and collection of the sample from the petitioner’s shop.

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11 . PW-3, Dr. Tarini Choudhury, the then Sub-Divisional Medical and Health Officer, proved the sanction accorded for prosecution and the subsequent statutory communications made to the petitioner.

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12 . The evidence on record unequivocally demonstrates that the Food Inspector followed the prescribed statutory procedure while collecting, preserving, sealing and forwarding the sample for analysis. The report of the Public Analyst (Ext.-13) disclosed that the sample of masur dal had been artificially polished with sunset yellow, a coal-tar colour not permitted for use in food grains under Rule 29 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the “Rules of 1955”). Significantly, upon the request of the petitioner, the sample was also examined by the Central Food Laboratory. The report of the Central Food Laboratory (Ext.-25) independently confirmed the presence of water-soluble synthetic colouring matter in contravention of Rule 29 of the Rules of 1955 and further disclosed moisture content exceeding the prescribed permissible limit. The findings of the Central Food Laboratory

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conclusively establish that the sample was adulterated within the meaning of the Act of 1954.

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13 . The principal contention advanced on behalf of the petitioner pertains to the absence of an independent witness at the time of collection of the sample. The said contention does not impress this Court.

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14 . The evidence of PW-1 clearly reveals that before collecting the sample, he attempted to secure independent witnesses from the locality. During cross-examination, PW-1 specifically stated that he searched for witnesses and waited for approximately twenty minutes, but no person agreed to witness the proceedings. It was only thereafter that PW-2 was requested to witness the sample collection process.

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15. The testimony of PW-1 on the aforesaid aspect stands fully corroborated by PW-2. The law is well settled that Section 10(7) of the Act of 1954 obliges the Food Inspector to make a genuine effort to secure independent witnesses at the time of collection of the sample. However, the mere absence of an independent witness does not ipso facto vitiate the proceedings where the evidence demonstrates that sincere efforts were made to secure such witnesses. The learned trial Court has elaborately considered the decisions rendered in Ram Labhaya vs. Municipal Corporation of Delhi reported in MANU/SC/0206/1974 , Sipahi Pd. Gupta & Anr. vs. State of Assam reported in MANU/GH/0036/2001 and Lalit Das vs. State of Assam in MANU/GH/0357/2002 and correctly concluded that once a bona fide attempt to procure independent witnesses is

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established, the requirement under Section 10(7) stands substantially complied with.

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16 . In the present case, the evidence of PW-1 and PW-2 has remained consistent and trustworthy. Nothing has been elicited during crossexamination to cast any doubt upon the sample collection process or the procedural safeguards observed by the Food Inspector. This Court, therefore, finds no reason to disbelieve the prosecution version merely because no independent witness ultimately participated in the sample collection process.

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17 . This Court is exercising revisional jurisdiction under Sections 397 and 401 Cr.P.C. The scope of interference in revision is well settled and limited. A revisional court does not function as a second appellate court and ordinarily refrains from re-appreciating evidence unless the findings recorded by the courts below suffer from patent illegality, perversity, jurisdictional error or manifest miscarriage of justice. Upon examination of the evidence available on record, no such infirmity is discernible in the present case. On the contrary, the findings recorded by both the courts below are founded upon cogent oral and documentary evidence and do not warrant interference.

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18 . The reports of both the Public Analyst and the Central Food Laboratory unequivocally establish that the food article sold by the petitioner was adulterated. The evidence further demonstrates due compliance with the mandatory procedural requirements prescribed under the Act and Rules. Accordingly, this Court finds no infirmity in the concurrent finding of guilt recorded against the petitioner under Section 16 read with Section 7(i) of the Act of 1954.

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19 . The next contention advanced on behalf of the petitioner is that the learned trial Court failed to consider the applicability of the Probation of Offenders Act, 1958 while imposing sentence. The records reveal that the learned trial Court specifically observed that the offence related to public health and safety and consequently declined to extend the benefit contemplated under Section 360 Cr.P.C. Food adulteration strikes at the health and well-being of the community and constitutes an offence against society at large. Having regard to the nature of the offence and the object sought to be achieved by the Act of 1954, this Court finds no justification to interfere with the sentence imposed.

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20 . In the facts and circumstances of the present case, this Court finds no error in the approach adopted by the learned trial Court while imposing sentence.

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21 . The learned appellate Court, upon an independent scrutiny of the evidence and materials on record, affirmed the findings and conclusions recorded by the learned trial Court. I do not find any illegality, perversity or miscarriage of justice either in the judgment of conviction or in the sentence imposed.

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22 . For the reasons recorded hereinabove, this Court finds no merit in the present criminal revision petition. The judgments passed by the learned trial Court and affirmed by the learned appellate Court do not warrant interference in exercise of revisional jurisdiction under Sections 397 and 401 Cr.P.C.

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23. Accordingly, the criminal revision petition stands dismissed.

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24 . Let the records of the courts below be remitted forthwith.

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25 . No order as to costs.

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JUDGE

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Tarun Saha v. the State of Assam and Anr.

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