Dismissed

Arun Kumar Mahatha v. State of Jharkhand

Jharkhand HC13 Sept 2021Cr.Rev./492/2003

Case brief

AI extract

What is this about?

In a criminal revision, the High Court acquitted the petitioner who was convicted for running a food grains shop without a valid license. The Court set aside the conviction finding that it was unsustainable because no food grains were seized from the shop to prove it was operational, breaching the requirement to prove the case beyond reasonable doubt.

What did the court decide?

Petitioner acquitted; conviction and sentence set aside; bail bond discharged;

Arun Kumar Mahatha Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 492 of 2003

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Arun Kumar Mahatha S/o Late Kedar Nath Mahtha, resident of village – Bijulia, P.S. Chas (M.), District-Bokaro …. Petitioner

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Versus

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The State of Jharkhand …. Opposite party --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Petitioner : Mr. Sanjay Kumar, Advocate For the State : Mr. Abhay Kumar Tiwari, A.P.P.

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Through: Video Conferencing

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6/13.09.2021 Heard Mr. Sanjay Kumar, learned counsel appearing on behalf of the petitioner.

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Heard Mr. Abhay Kumar Tiwari, learned A.P.P. appearing on behalf of the opposite party - State.

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The present criminal revision has been filed against the Judgment dated 31.05.2003 passed by the learned Additional Sessions Judge, F.T.C.-II, Bokaro in Criminal Appeal No.126 of 1996, whereby and whereunder the appeal filed by the petitioner has been dismissed.

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The petitioner was convicted vide Judgment of conviction and the order of sentence dated 09.09.1996 passed by the learned S.D.J.M, Bokaro at Chas in P.F.A. Case No.34 of 90, Trial No. 525 of 1996 for the offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 and was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- and in default of payment of fine, he was directed to undergo further simple imprisonment for a period of one month.

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Arguments on behalf of the petitioner

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Learned counsel for the petitioner has submitted that the impugned judgments convicting the petitioner for offence under Section 16 (1) (a) (ii) of Prevention of Food Adulteration Act, 1954

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is ex facie perverse. He submitted that as per the allegation, the petitioner, in spite of expiry of license, was running the shop of food grains. Learned counsel submitted that no food grain was seized from the shop and no independent witness has been examined to support the prosecution case. He also submitted that no weighing machine or weight or balance etc. has been seized from the alleged shop. He submitted that no food grain has been recovered even from the possession of any buyer or any other person. He submitted that the petitioner has been convicted only on the basis of prosecution report which was supported by three witnesses who are official witnesses. The learned counsel submitted that the prosecution has not been able to prove the case beyond all reasonable doubt. He submitted that in absence of any food grain or any article having been seized from the alleged place of occurrence i.e. shop of the petitioner, no case of Prevention of Food Adulteration Act for the alleged offence is made out against the petitioner in the present case.

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Learned counsel has also submitted that there is material contradiction so far as P.W.-2 is concerned, who had stated in his deposition that it was food grain shop of another person namely, Arjun Mahatha, which was raided, and said Arjun Mahatha was already acquitted by the court of Sub- Judicial Magistrate, Bokaro in another case i.e. Prevention of Food Adulteration Act Case No.9 of 1990. Learned counsel submitted that Arjun Mahatha has nothing to do with the shop of the petitioner and accordingly, P.W.-2 has in fact not supported the case of the prosecution by naming Arjun Mahatha whose shop was raided.

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Arguments on behalf of the State

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Learned counsel appearing on behalf of the opposite partyState, on the other hand, has submitted that there are concurrent findings recorded by the learned courts below and it has come in evidence that the petitioner was found running his shop, although his license had expired. However, he does not dispute the fact

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that no recovery whatsoever was made from the shop of the petitioner including recovery of any food grains or any balance, weighing machine and weight etc. for measurement of food grain and admittedly, no independent witness has been examined and the prosecution witness have not even disclosed the name of any independent person, who was said to be present at the place and time of occurrence.

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Findings of the Court

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The case of the prosecution in brief is that on 9.11.1989, the food inspector, Chas alongwith licence supervisor and health supervisor had visited the food grain shop of the petitioner, where the petitioner was present and the shop was also open. On demand by the food inspector, the petitioner had produced his licence for running food grains shop, which was valid only till 31.03.1986. Therefore, the food inspector prepared the prosecution report and also obtained the signature of his other two aforesaid associates on the prosecution report. Thereafter the food inspector sent the prosecution report for sanction for prosecution to the local health authority and after receipt of the sanction order, the report was filed and the case was instituted, in which cognizance was taken. The charge was framed against the petitioner in the aforesaid provision of Prevention of Food Adulteration Act, 1954, to which he pleaded not guilty and claimed to be tried. The specific defence of the petitioner was that he has not committed any offence and he has been falsely implicated. The further defence was that after the expiry of period of license, the petitioner closed his shop and on the day of alleged occurrence also, the shop of the petitioner was closed.

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The prosecution examined altogether three witnesses. P.W.– 1 is the food inspector, P.W.–2 is the health supervisor and P.W.–3 is the licensing supervisor. All these three persons had jointly visited the place of occurrence.

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As per the evidence of PW-1, food inspector, on 9.11.89 at

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about 10 am, he along with PW-2 and PW-3 had visited the food grain shop of the petitioner, where he found the petitioner and the shop was open and when he asked for license of the shop, the petitioner had produced the license, which was valid till 31.03.1986. PW–1 further stated that on being asked, the petitioner had told him that he will get his license renewed. Thereafter, PW – 1 prepared the prosecution report (Ext.-1), on which he obtained the signatures of the other two associates, i.e. PW-2 and PW-3 and sent the proposal for sanction to local health authority and local health authority being satisfied given the sanctioned order, which was exhibited as Ext. 2.

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The evidence of PW-2 has been recorded in the trial court judgment, wherein, it has been recorded that PW – 2 stated that on the date and time of occurrence, he went alongwith PW- 1 and PW – 3 and visited the food grain shop of the petitioner, where they found that the shop of the petitioner was opened and sell was going on. He further stated that PW-1 had demanded the licence of the shop of the petitioner, which was found to be valid till 31.3.86 and after 31.3.86 and the petitioner was running the food grain shop without any licence on the date of inspection. He has also stated that food grain inspector had prepared the prosecution report, in which, he had given his signature.

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So far as PW – 3 is concerned, he is the licensing supervisor. He has also supported the prosecution case and has stated that he had accompanied the other two witnesses at the time of inspection and stated that he found the shop running and one or two customers were also present in the food grain shop of the petitioner. He has also stated that PW – 1 had demanded the licence of the shop, which was produced and was valid till 31^st March 1986 and the petitioner did not give any satisfactory explanation, nor he asked for time to get his licence renewed. Thereafter, the prosecution report was prepared, in which, he had put his signature. The learned court has recorded that the

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prosecution had also proved the prosecution report as well as the sanction of the prosecution issued by the local health authority, i.e. Ext.1 and Ext. 2. The other exhibits were with regard to the power of the local health authority to grant sanction for prosecution, which were the Ext.3 to Ext.-9.

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The defence had specifically contended that PW-1 and PW-3 had stated that at the time of inspection, some customers were also present, but none of them were made witness and the petitioner could not be convicted on the basis of the evidence of only the officers of inspecting team. 14. The learned trial court recorded that from the evidence of food inspector PW – 1, it transpired, that the customers who were present in the food grain shop of the petitioner had refused to become witness to the case and as such, none examination of independent witness was explained by the prosecution. The learned trial court also held that the examination of independent witnesses is not mandatory, because it was not the case where the sample of food articles were taken by food inspector for its analysis by the public analyst, in which examination of independent witnesses is mandatory provision under Section 10(7) of the provisions of Prevention of Food Adulteration Act, 1954. The learned trial court considered the case of the defence that the shop of the accused was closed from before the date of inspection on the ground that PWs-1, 2 & 3 had stated that the shop of the accused was open and accused was running his food grain shop and the customers were also present at the food grain shop of the petitioner. The case of the defence that the food inspector had not visited the shop of the petitioner and had submitted a false prosecution report was also rejected by the learned Trial Court by stating that the food inspector had given the description of the place of occurrence and he had stated that there is residential house of the petitioner inside the shop of the petitioner, which was corroborated from the evidence of PW – 3. Accordingly, learned trial court held that PW – 1 had inspected

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the food grain shop of the petitioner and concluded that the licence of the petitioner had expired on 31.03.1986 and the petitioner was found running his food grain shop without any valid licence in contravention of Rule 50 of Prevention of Food Adulteration Rule 1954, which is punishable under Section 16(1)(a)(ii) of the Food Adulteration Act and accordingly, held that the petitioner is guilty of the offence.

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So far as the appellate court is concerned, the petitioner had also argued that so far as PW – 2 is concerned, he had stated in his deposition that he went to the food grain shop of another person namely Arjun Mahatha and it was also stated that Arjun Mahatha was already acquitted by the Court of SDJM, Bokaro in another case being P.F.A. Act Case No.9 of 1990. It has been specifically argued by learned counsel appearing on behalf of the petitioner that the learned trial court has wrongly recorded the evidence of PW – 2 in para – 7 of the Judgment that he had stated that he had visited the food grain shop of the petitioner along with PW – 1 and PW – 3, rather PW – 2 had stated that he had visited the food grain shop of another person including Arjun Mahatha, in connection with which another case was instituted. 16. This Court finds that the learned appellate court has recorded the aforesaid submission and has considered the same by holding that the recording of the statement of PW – 2 that he had visited the shop of Arjun Mahatha could be a slip of pen or it may be a slip of tongue, which could not be a basis to disbelieve the other consistent corroborative and supportive evidence, but it is not in dispute that PW – 2 had stated that he had visited the shop of another person namely, Arjun Mahatha in connection with whom another case being SDJM, Bokaro, P.F.A. Act No.9 of 90 was instituted and Arjun Mahatha was acquitted in the said case in support of which Ext.-A was produced from the side of the defence witness, which was marked as exhibit with consent of both the parties. The appellate court held that it was admitted fact that the licence given by the petitioner was valid till

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31.3.1986 and was not renewed thereafter and also held that from the oral evidences adduced by the prosecution ,it was apparent that during the course of inspection, the shop was found open and some customers were also found in the shop, who refused to become the witness in the case and there was no enmity between the petitioner, with the informant and other witnesses which could indicate any false implication of the petitioner.

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From perusal of record of this case, it appears that with regard to place of occurrence, it is not in dispute that the food inspector had given the description of the place of occurrence and he had stated that there was residential house of the petitioner inside the shop of the petitioner, which has been corroborated by the evidence of PW–3. Although, it has been alleged that the petitioner was found running the food grain shop and some customers were also present, who refused to become a witness, but at the same time, the fact remains that the prosecution did not seize any food grain from the shop of the petitioner to show that a food-grains shop was running at the place of occurrence. Even if the customers refused to become a witness, then also it was open to the prosecution to seize food grain from the shop. The very fact that the prosecution has not seized any food grains from the shop, itself indicates that no such food grain was found in the shop. It is not in dispute that the residence of the petitioner was inside the shop premises. In such circumstances, the findings of the learned courts below that the petitioner was found running a food grains shop at the time and place of occurrence cannot be sustained in the eyes of law as admittedly, no food grain was seized from the place of occurrence i.e. the shop. The conviction of the petitioner on the allegation of running the food grains shop without valid licence cannot be sustained in the eyes of law in absence of any seizure of food grains from the place of occurrence shop.

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Considering the aforesaid facts and circumstances of the case, the judgment of conviction passed by the learned courts

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below for the offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 is unsustainable in the eyes of law as the prosecution cannot be said to have proved the allegation against the petitioner beyond all reasonable doubt.

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Accordingly, the Judgment dated 31.05.2003 passed by the learned Additional Sessions Judge, F.T.C.-II, Bokaro in Criminal Appeal No.126 of 1996, confirming the Judgment of conviction and the order of sentence dated 09.09.1996 passed by the learned S.D.J.M, Bokaro at Chas in P.F.A. Case No.34 of 90, Trial No. 525 of 1996 for the offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954, is set-aside and the petitioner is acquitted from the charges thereunder.

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This criminal revision application is hereby allowed.

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The bailors of the petitioner are discharged from the liability of their bail bonds.

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Pending interlocutory application, if any, is closed.

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Office is directed to send back the lower court records to the court concerned.

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Let this order be communicated to the learned court below through FAX/E-mail.

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(Anubha Rawat Choudhary, J.)

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R. Kumar/

Arun Kumar Mahatha v. State of Jharkhand

Case brief

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Arun Kumar Mahatha v. State of Jharkhand

Case brief

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