Ram Nath Prasad and Another vs State of Assam

R.S. Mongia, C.J.—The Revision petition is on behalf of Sri Ramnath Prasad, Manager and Sri Raghaw Prasad owner of a shop from where, the Food Inspector Sri B.N. Saikia PW1 collected sample of Chillies Powder on 9.2.1989, Food sample was collected and was got analysed from the Public Analyst and it was found to contain coal tar colour which is not permissible. After going through the due process the petitioners were sent up for trial. Prosecution examined two witnesses, i.e., the Food Inspector and his Peon Sri Kiran Chandra Das. Vide Judgment of the trial court dated 20.10.1993 the petitioners were convicted for storing and selling adulterated Chillies Powder violating Sub-section (1)(a) u/s 2 of the Prevention of Food Adulteration Act and they were convicted u/s 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act and sentenced them to R.I. for a period of Six Months and to pay a fine of Rs. 1,000 each and in default of payment of fine further R.I. for a period of two months. The appeal by the petitioner before the Sessions Judge Golaghat did not bear any fruit and. the same was dismissed on 10th June, 1994. Aggrieved by the aforesaid Judgment the present Revision has been filed.

The learned counsel for the appellant, raised same arguments as were raised before the Courts below.

The first point urged is that there was violation of Section 10(7) of the Act, inasmuch as no independent witness was called by the Food Inspector while taking sample, PW 1 the Food Inspector in his statement deposed that he had asked the customers present in the shop to become witnesses but they refused and on their refusal he had asked his peon to become a witness. This statement of PW 1 has not been seriously challenged in the Cross examination. However, this should not detain me inasmuch as taking of the sample from the shop was not denied or disputed by the accused Sri Ram Nath Prasad in his statement u/s 313 of the Code of Criminal procedure ; rather taking of the sample and dividing them into 3 packets was admitted.

That being so non-joining of independent, witnesses under the circumstances, as stated above, become meaningless. There was substantial compliance with the provisions of Section 10(7) of the Act inasmuch as the Inspector had tried to get independent witnesses while taking the sample.

The next point raised is that the sample weighing 600 gram; which was taken was not representative sample of the Food from the shop of the accused. The Witness PW 1 has stated that in fact only about 1 Kg, of Chilies Powder was at the shop and 600 Grain was taken out of 1 Kg. It cannot be said that this was not a representative sample. Even if the stock was of bigger quantity even then after mixing with Food article, 600 Gram taken under the circumstances cannot be said not to be a representative sample.

Learned counsel then submitted that the Public Analyst report regarding the sample was sent belatedly which would caste doubt over the prosecution story regarding food being adulterated. The sample was collected on 9.2.1989 and as per the statement of PW 1 the Food Inspector, the sample was sent to the Public Analyst on 13.2.1989. These 4 days delay was sought to be explained on the ground that intervening days were holidays which has not been challenged. The report of the Public Analyst was delivered on 3.5.1989 to the Local Health Authority. This was not in accordance with the prescribed period as per Rule 7(3) of the Food Adulteration Rules. Rule 7(3) prescribes the period for the Public Analyst to send his report. The accused can also send the sample in his possession for verifying or contradicting the Public Analyst Report. A right is conferred on the accused to produce evidence against the Public Analyst Report. Such a right must be exercised and if title Analyst comes to the conclusion that the sample sent by the Accused cannot be analysed because of the time gap between its collection and its sending naturally it could be said that prejudice has been caused to the accused to exercise his right. In the present case no such right was sought to be exercised by the accused as he did not send his sample for analysis. Had he sent the same for analysis and it was said that sample could not be analysed fox any reason perhaps it could be said that petitioner was prejudiced, Consequently, the delay in submitting public Analyst Report in my opinion will not effect the prosecution case.

It was argued that percentage of coal tar colour is not mentioned in the Public Analyst Report. It is not disputed that Chilies powder is not to contain any coal tar colour. The report of the Analyst says that it contain coal tar colour. No mention of the percentage under the circumstances, would not affect the case of the prosecution.

It was also argued that the sample was not kept in clean dry polythene bags. PW 1 in his statement has positively stated that the samples were kept in a clean dry polythene bags. This part of the statement was not subjected to any cross examination therefore it cannot be said that prosecution has failed to prove that the sample was kept in dry Polythene bags. There was no deviation regarding provisions of Rule 19 of the Rules. Lastly it was argued that the Food Inspector as well as the Public Analyst had used old forms. It is not being suggested as to how by the use of old forms the accused was prejudiced. As observed in the earlier part of the Judgment taking of the sample is admitted in the statement made u/s 313 of the Cr.PC. The Public Analyst Report has not been challenged inasmuch as the accused did not send his sample in their possession for analysis. In this circumstances the choosing of the old forms does not take away the contents of the form.

No other point has been raised.

For the foregoing reasons I find no merit in this Revision Petition which is accordingly dismissed.