Dev Prasad Sharma vs State of Assam

By judgment and order, dated 08.06.2004, passed, in Complaint Case No.81C/99, by the learned SubDivisional Judicial Magistrate (Sadar) No.II, Guwahati, the accusedpetitioner stands convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954, (in short, ''the PFA Act) and, following his conviction, he has been sentenced to suffer simple imprisonment for six months with fine of Rs.2,000/ and, in default thereof, undergo simple imprisonment for a further period of three months.

The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 07.11.98, one Sri T.K. Barman, Senior Food Inspector, after disclosing his identity and after serving on the accusedpetitioner a notice in Form VI, purchased, for value, a sample of cow''s milk from the accusedpetitioner at Fancy Bazar, Guwahati, the quantityof milk being 750 ml. The milk, so purchased, was divided into three equal parts and kept the same in new, clean and dry bottles by adding 20 drops of formalin to each part of 250 ml of the sample and the bottle of the mouth was closed. In course of time, one of the samples was sent, for chemical examination, to the Public Analyst, Assam. The Public Analyst reported that the sample of milk did not conform to the standard. Thereafter, the Food Inspector obtained requisite sanction for prosecution of the accusedpetitioner and laid a complaint accordingly in the Court of the learned Chief Judicial Magistrate, Kamrup.

During trial, the accusedpetitioner pleaded not guilty to the charge framed against him under Section 16 read with Section 7 of the PFA Act.

In support of their case, prosecution examined two witnesses, namely, the Food Inspector and the Peon of his office. The accusedpetitioner was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accusedpetitioner denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was, however, adduced by the defence. Having found the accusedpetitioner guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above.

Aggrieved by his conviction and the sentences passed against him, the accusedpetitioner preferred an appeal, which gave rise to Criminal Appeal No.39/2004. By judgment and order, dated 07.09.2004, as the learned Sessions Judge, Kamrup, has dismissed the appeal and maintained the conviction of the accusedpetitioner and the sentence passed against him, the accusedpetitioner is, now, before this Court with the present revision.

I have heard Mr. N. Ahmed, learned counsel, appearing on behalf of the accusedpetitioner, and Mr. D. Das, learned Addl. Public Prosecutor, Assam.

Drawing attention of this Court to Ext.13, which is postal receipt in respect of the notice, which was issued under Section 13(2) of the PFA Act, whereunder Public Analyst''s Report was claimed to have been sent to the accusedpetitioner, Mr. Ahmed, learned counsel, has pointed out that this acknowledgement receipt shows that while the accusedpetitioner''s name is Dev Prasad Sharma, the report, with the notice in terms of Section 13(2) of the PFA Act, was received by one Om Prakash Sharma.

There is no dispute that it is mandatory, under Section 13(2) of the PFA Act, to send to the accused the report of the Public Analyst, on institution of the complaint against the accused, informing him that if he so desired, he could apply to the Court, within a period of 10 days from the date of the receipt of the copy of the report, to get the sample or article of food analysed by the Central Food Laboratory. (See State of Orissa Vs. Gauranga Sahu, reported in 2002 (2) FAC 110, and Radheshyam Singhal and another Vs. State of Assam, reported in 2009(1) GLT 618).

This Court cannot ignore the ground on which the finding of guilt has been challenged in this revision, because the evidence, given by the Food Inspector, is that Ext.13 is the acknowledgment due card in respect of the postal receipt (Ext.12), whereunder the copy of the Public Analyst''s Report had been sent to the accusedpetitioner.

However, what is pointed out, on behalf of the accusedpetitioner, is that while examining the accusedpetitioner under Section 313(1)(b) Cr.PC., the learned trial Court never put to the accusedpetitioner that Ext.13, which is the AD card, had been received by him. If the accusedpetitioner denies the receipt of the ''report'' of the Public Analyst, whatinference the learned trial Court would draw from such a denial, in the face of the fact that the accusedpetitioner, while crossexamining the Food Inspector, had not disputed that he had received the ''report'', is for the learned trial Court to determine by taking a holistic view of the evidence, adduced, as a whole, in this regard, by the prosecution. However, the fact of the matter remains that the attention of the accusedpetitioner, while he was being examined, under Section 313(1)(b) Cr.PC., had not been drawn to the incriminating piece of evidence given by PW1 that Ext.13 is the A.D. Card, which was in respect of the ''report'', which, according to the Food Inspector''s evidence, had been sent to the accusedpetitioner, by registered post with Acknowledgement Due, the postal receipt, in this regard, being Ext.12. As this incriminating piece of evidence had not been put to the accusedpetitioner, the same could not have been used against him. This aspect appears to have escaped attention of the learned appellate Court. At the same time, for the omission, on the part of the learned trial Court, prosecution cannot be made to suffer.

In the result and for the reasons discussed above, this revision partly succeeds. The impugned judgments and orders passed by the learned trial Court as well as the learned appellate Court are hereby set aside and the case is remanded to the learned trial Court for examining the accusedpetitioner appropriately, under Section 313 Cr.PC, in terms of the requirement of law and also in the light of the discussions held above and, in the examination, so directed, the learned trial Court shall remain free to put any such other question(s) as may be deemed necessary and permissible in law.

In order to avoid any delay in disposal of the case, the accusedpetitioner is hereby directed to appear in the Court of learned SubDivisional Judicial Magistrate (Sadar) (II), Kamrup, Guwahati, on 28.06.2012.

With the direction for remand, this revision shall stand disposed of.

Send back the LCR.