Chitta Ranjan Ghosh vs State of Assam

I.A. Ansari, J.—By the judgment and order, dated 31.03.2004, passed by the learned Chief Judicial Magistrate, Bongaigaon, in CR Case No. 461 of 1999, the accusedpetitioner was convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the PFA Act'') and, following his conviction, he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/ and, in default of payment of fine, undergo simple imprisonment for one month.

I have heard Mr. K Agarwal, learned counsel for the accusedpetitioner, and Mr. D Das, learned Additional Public Prosecutor, Assam.

The case against the accusedpetitioner, as unfolded at the trial may, in brief, be described thus: PW1 Food Inspector visited, on 12.08.1999, the shop of M/S Ghosh Diary, situated at AOC Road, Bongaigaon. On visiting the said shop, PW1 found that the present accusedpetitioner had kept stored for sale Dahi (curd) made from buffalo milk. PW1 gave his identity to the accusedpetitioner, who was functioning as the vendor, and gave him a notice, in FormVI, expressing his intention to buy 600 grams of Dahi from the accusedpetitioner and paid a sum of Rs. 24/(Rupees Twenty four only) therefor. The accusedpetitioner acknowledged the receipt of the notice and also the price of the Dahi and sold 600 grams of Dahi to PW1. Thereafter, PW1 (Food Inspector) divided the purchased sample of 600 grams of Dahi into three equal parts and took each part in clean container, sealed and wrapped the same in presence of the vendor and witnesses. Thereafter, PW1 sent one part of sample to the Public Analyst, Govt. of Assam, for chemical examination. The Public Analyst''s reported that the sample of Dahi did not conform to the standards. Having received the said report, PW1 obtained requisite sanction from the Joint Director, Health Services, Bongaigaon, and laid a complaint, in writing, in the Court of the learned Chief Judicial Magistrate, Bongaigaon, seeking prosecution of the accusedpetitioner, under Section 16 read with Section 7 of the PFA Act, for selling and storing for sale the adulterated Dahi of buffalo milk.

Based on the complaint, so made, which gave rise to CR Case No. 461 of 1999, a charge, under Section 16 read with Section 7 of the PFA Act, was framed. To the charge, so framed, the accusedpetitioner pleaded not guilty.

In support of their case, prosecution examined, altogether, two witnesses, namely, the Food Inspector (PW1) and his office peon (PW2). The accusedpetitioner was, then, examined under Section 313(1)(b) Cr.P.C. and, in his examination aforementioned, the accusedpetititoner denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that no adulterated curd was ever sold by the accusedpetitioner. No evidence was, however, adduced by the defence.

On finding the accusedpetitioner guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above.

Aggrieved by his conviction and the sentence passed against him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 8(2) of 2004. By judgment and order, dated 09.09.2004, as the learned Sessions Judge, Bongaigaon, has dismissed the appeal and upheld the conviction of the accusedpetitioner and also the sentence passed against him, the accusedpetitioner has, now, come to this Court with the present revision petition.

While considering the present revision, what needs to be noted is that in the present case, the article of food is curd. There is not even an iota of evidence on record to show that the 600 grams of curd, which had been purchased and taken as sample, was churned before the same was divided into three parts. Is it permissible, in law, to treat such a sample of curd a representative sample and can the result of the chemical analysis of such a sample of curd be made foundation for conviction of the vendor ? This is the moot question, which has fallen for consideration in the present revision.

While considering the question, posed above, what needs to be noted is that this Court, in Santosh Kr. Sarma Vs. State of Assam, reported in 2005 (Suppl) GLT 494: 2005 (1) GLR 382, has held, thus:

"21. What crystallizes from the above discussion of the evidence on record visavis the law relevant thereto is that the sample of curd should be obtained, if the curd has set, only after taking out the same vertically? This apart, in order to make the sample a representative sample of the curd, in question, the sample has to be drawn by churning the curd, in question, as a whole and only when the sample is drawn after churning the curd that the sample drawn from such churned curd can be regarded as representative sample. In the case at hand, as already discussed hereinabove, the offence report is completely silent regarding the factum of churning. Even the evidence given by P W 1 also remained completely silent in this regard inasmuch as P W 1, who took the sample, nowhere claimed that the curd was churned before the sample was taken out. In the face of these facts, the assertion made, for the first time, in the crossexamination, by PW 2. (sic) That the curd was churned before the sample was drawn could not have been, in the absence of any other corroborative evidence, readily relied upon. In this regard, as candidly conceded by the learned Public Prosecutor, there was no direct or indirect corroborative evidence on record. The learned trial Court as well as the appellate Court did not, however, take into account these glaringly material aspects of the case.

Considering, therefore, the matter in its entirety, I am firmly of the view that on the strength of the evidence on record, it could not have been confidently held that the sample, in question, was a representative sample. This fact alone was enough to accord, at least, benefit of doubt to the accusedpetitioner."

From what have been pointed out in Santosh Kr. Sarma (supra), it is abundantly clear that the sample of curd should be obtained, if the curd has set, only after taking out the same vertically. Moreover, in order to make the sample a representative sample of the curd, the sample must be drawn by churning the curd, in question, as a whole, and only when the sample is drawn after churning the curd that the sample can be regarded as a representative sample. It is only when a sample of curd is representative sample of curd, such a sample can, in an appropriate case, be made foundation for conviction of a vendor if such a sample of curd is found to be adulterated.

In the case at hand too, the offence report is silent with regard to the factum of churning. Even the evidence, given by P Ws 1 and 2, is completely silent, in this regard, inasmuch as neither PW1 nor PW2 claimed that the curd was churned before the sample was taken out. The sample, which was so drawn and chemically analysed, was, thus, not a representative sample and chemical analysis of such a sample cannot, in law, be made foundation for conviction of the accusedpetitioner.

At any rate, in a case of present nature, it cannot be confidently held that the sample, in question, was a representative sample and in such a case, the accusedpetitioner deserved to be accorded, at least, benefit of doubt. However, these aspects of the case have not been paid attention to by the learned Courts below. The conviction of the accusedpetitioners cannot, therefore, be sustained.

In the result and for the foregoing reasons, this revision is allowed. The impugned judgments and orders shall stand set aside. The accusedpetitioners shall accordingly stand, under benefit of doubt, acquitted of the offence charged with. His bail bonds shall stand cancelled and sureties shall stand discharged.

With the above observations and directions, this revision shall stand disposed of.

Send back the LCR.