Sri Narayan Prasad Sharma vs State of Assam

This revision petition is filed challenging the legality, propriety and correctness of the judgment and order, dated 12.08.2008, passed by the

learned Sessions Judge, Kamrup, Guwahati in Criminal Appeal No. 16/2008 dismissing the appeal and affirming the judgment and order, dated

10.03.2008, passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati in CR Case No. 4023/2004 convicting and sentencing the

accused-revision petitioner under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, (hereinafter referred to as the

PFA Act) and sentencing him to simple imprisonment for one year and also to pay a fine of 2,000/- with a default clause.

Heard Mr. S Chamaria, learned counsel assisted by Mr. M Phukan as well as Mrs. SH Borah, learned Additional Public Prosecutor, appearing

for the State respondent.

I have perused the judgments of the learned trial court as well as the appellate court and have also perused the records of the learned trial court

including the evidence of the witnesses.

The fact leading to the complaint is that, on 17.08.2008, the Food Inspector, Kamrup (PW1) visited the shop, under the name and style M/s

Parbati Store situated at Narengi Tiniali, Guwahati. There the PW1, Food Inspector purchased 750 grams of Moong Dal (Food Grain) being

sample of such food articles after observing all necessary legal formalities, suspecting it to be adulterated.

The learned trial court, after exhausting all the required legal procedures, framed a formal charge against the accused-revision petitioner under

Sections 7/16 of the PFA Act, which was read over and explained to the accused-revision petitioner to which he pleaded not guilty and came to

be tried. Hence, the trial commended.

The prosecution examined 2 (two) witnesses and the defence examined 3 (three) witnesses.

The defence has taken the plea that the Moong Dal sample which was taken were kept inside the store not for sale because of its detoriating

condition.

I have thoroughly examined the evidence of the prosecution witnesses as well as the defence witnesses.

The learned trial court convicted the accused-revision petitioner, as aforesaid, and such order of conviction and sentence was upheld by the

learned appellate court. I have analyzed the evidence of the prosecution as well as the defence and has decided to take the lone issue raised by the

learned counsel for the revision-petitioner during the course of hearing for a decision.

The learned counsel for the accused-revision petitioner has submitted that the quantity of sample taken was 250 grams for each samples

totaling 750 grams but as per Item 38 of Rule 22 of the PFA Rules, the quantity of sample should have been 500 grams for each sample totaling

1500 grams. The learned counsel for the accused-revision petitioner, referring to this provision, has submitted that the sample was not collected as

per the standard prescribed under the Rules, and therefore, the whole prosecution is vitiated.

The learned counsel for the accused-revision petitioner has referred to the decision of the Hon''ble Supreme Court in the case of Rajaldas G

Pamnani vs. State of Maharashtra, reported in AIR 1975 SC 189. The Hon''ble Supreme Court in the said decision has acquitted the appellant on

the ground of non-compliance of the Rules relating that the quantity of sample to be collected. But after the aforesaid decision of the Hon''ble

Supreme Court, Rule 22(B) of the PFA Act was inserted.

The learned Additional Public Prosecutor has submitted that in view of the provisions of Rule 22(B) of the PFA Rules, there is no non-

compliance of the provisions in respect of collection of samples and the Public Analyst gave his report on the said quantity of the sample collected

by the Food Inspector/complainant.

The learned Additional Public Prosecutor has relied on the decision of the Supreme Court in the case of State of Punjab vs. Devinder Kumar

& Ors., reported in 1983 AIR 545. She has specifically referred to the following observations of the Hon''ble Supreme Court in the aforesaid

case:-

22-B. Quantity of sample sent to be considered as sufficent. Notwithstanding anything contained in Rule 22 quantity of sample sent for analysis

shall be considered as sufficient unless the public analyst or the Director reports to the contrary."" Even prior to the coming into force of Rule 22-B,

the legal position was the same as what was attempted to be achieved by Rule 22-B of the Rules. In State of Kerala etc. etc v. Alaserry

Mohammed etc. etc. (1) this Court held Rule 22 which prescribed the quantity of food that should be sent to the Public Analyst was only directory

and that a prosecution could not fail merely on the ground that the quantity sent to the Public Analyst was less than what was prescribed, provided

the quantity which was actually sent was sufficient for purposes of analysis. Untwalia, J. speaking on behalf of the five learned Judges who heard

that case observed at page 828 thus :

It would thus be seen that the whole object of section 11 and Rule 22 is to find out by a correct analyis subject to further verification and tests by

the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public

Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make correct analysis, then merely because the

quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the

quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient, there is an end of the

matter.

The legal position being as above, in the considered view of this Court, there is no non-compliance of the provisions in respect of quantity of

samples collected. Therefore, the argument on this score, advanced by the learned counsel for the accused-revision petitioner, does not have any

merit.

As stated above, there is no other ground raised during the course of hearing.

No interference is called for by this Court so far the conviction is concerned in exercise of its revisional jurisdiction, in view of the fact that the

judgments of both the learned Courts below are based on evidence on record. So far the sentence is concerned, considering that this is a very old

pending case, and as submitted by the learned counsel for the accused-revision petitioner, the petitioner has attained the age of 80, in the

considered view of this Court, if the statutory prescribed maximum punishment of 6 (six) months is awarded, it will meet the ends of justice.

Accordingly instead of rigorous imprisonment for one year, the same is reduced to simple imprisonment for 6 (six) months and the fine amount will

remain the same.

Criminal revision petition is partly allowed.

The accused-revision petitioner will surrender before the learned trial court to serve out the sentence.

Send down the LCR along with a copy of this judgment.