State of Assam vs Amrit Lal Ghose

K. Lahiri, J.—This is an appeal from an order of acquittal passed by the Sessions Judge, Cacbar, at Silchar whereby he bas acquitted the accused of the charges under Sections 7/16 of the Prevention of Food Adulteration Act, 1954, for short, "the Act".

Way back on 27.6.77 the Food Inspector came to the shop of the Respondent took samples of "Dahi" and "Bundiya" for analysis and sent the samples to the Public Analyst for analysis and report. The Respondent was owner-cum-employee-cum- cook of the stall. It appears from the record of the case that he did not know English so his statement was recorded in the local language in which be could just put his signature. The Respondent is aged around 73 years. After the Food Inspector had taken the samples, he sent one part of the sample containing the signature of the accused to the public Analyst. The memorandum with the specimen impression of the seal were also seat to the public Analyst for comparison, as required under the provisions of "the Act" and "the Rules". The Public Analyst reported that the standard of the quality of "Dahi" was within the limits prescribed by the Prevention of Food Adultration Rules, 1955, for short ''the Rules'''' read with Appendix-B to "the Rules". The Public Analyst reported ''hat the sample of Bundiyas sent was adulterated as it contained prohibited colour, namely, metanil yellow, a non permitted colouring matter. When the records of the case were rent to the Magistrate he caused a sample to be sent to the Director, Central Food Laboratory for examination and report. The Director, Central Food Labor- atory submitted his report, vide Ext. 7. He opined that the added colouring material in "Bundiya" .was metanil yellow, a non permitted ooaltar dye and, accordingly, they were adulterated u/s 2(ia) (j) of ''the Act'' read with Rule 28 of "the Rules". Seen on 13 (5) of "the Act" provides that the report of the Director of Central Food Laboratory is final and conclusive evidence of the facts stated therein, it supersedes the report of the public Analyst. When the trial commenced two witnesses were examined in support of the allegations, namely, the Food Inspector and the Peon who had accompanied him. P.W. 1, Shri T.K. Dutta Choudhury, Area Food Inspector stated that the samples were taken in containers, they were labelled and addressed in compliance with the provisions of Rules 14 and 15 of "the Rules". The samples were packed, fastened and sealed as required by Rule 16. Thereafter, the containers of samples in a sealed packet alongwith the memorandum with the speciman impression of the seal were sent to the Public Analyst for analysis separately. The Food Inspector stated that on receipt of the report of the Public Analyst a case was instituted against the accused. On the evidence learned Magistrate convicted the accused and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs. 1000/-, "a default, to suffer simple imprisonment for one month. Learned Magistrate turned down the plea of the accused that he bad kept the coloured Bundiyas "for feeding birds". On appeal learned Sessions Judge also rejected the plea taken up by the accused. Indeed, if the Bundiyas were made for the birds there was so purpose for decorating the food with colour. Binds have no special fancy for colour; like human being. However learned Sessions Judge by the impugned order set aside the conviction and sentence on the ground that the Food Inspector had failed to comply with the provisions of Rules 17 and 18 of "the Rules". Learned Sessions Judge held that the provisions were mandatory and the Rules were violated, and, therefore, no conviction could be sustained on the basis of the report of the Public Analyst. IN short, the learned Judge held that the copy of the memorandum and the specimen impression of the seal used to seal the packet were not sent to the Public Analyst separately as was required to be done under Rule 18 of "the Rules". The breach of the rules caused prejudice to the accused and accordingly, the accused was acquitted.

The State has preferred this appeal against the order of acquittal. The first submission. In that the provisions of the Rules ware fully complied and the order of acquittal. In based on total non-reading of the evidence of P.W. 1, Shri T. K. Dutta Choudhury, Area Food Inspector, The second submission is that to any view of the matter the samples were seat to the Director, Central Food Laboratory after due compliance with the provisions of ''the Act'''' and "the Rules", and, the report of the Director clinched the issue that the sample of food sent was adulterated.

P.W. 1, Shri T.K. Dutta Cboudhury deposed that he had purchased Bundiyas, separated then into three equal parts and put in three bottles. They were labelled, packed and sealed He stated that material Ext. I was one of the samples which contained the signature of the accused and his signature. He stated that one part of the samples was sent "with the copy of filled up memorandum to the public Analyst by messenger for chemical examination". He further stated that another copy of the memorandum with the specimen impression of the seal used to seal the packet was "sent to the public Analyst for comparison". Ext. 2 was the copy of the memorandum and Exts. 2(2) and 2(3) were the specimen impression of the seal used. Other samples were kept with the Local Health Authority. He received the report of the public Analyst and proved it as Ext. 3. The Local Heath Authority accorded sanction for prosecution of the accused whereupon he sent the offence report to the court. The accused was served with the copy of the public Analyst s report informing him that if he wanted to get the sample analysed by the Central Food Laboratory be could apply to the Court for doing the same. He stated that another part of the samples was sent to the Central Food Laboratory as ordered by the Sub divisional Judical Magistrate, Karimgaoj and Ext. 7 was the report of the Director, Central Food Laboratory. There was no cross-examination of the witness questioning about the procedure of scaling, fastening and despatching of the samples to the public Analyst and/or the Director, Central Food Laboratory. It appears that the evidence of P.W. 1. Shri T.K. Dutta Cboudhury, Area Food Inspector extracted above escaped the notice of the learned Sessions Judge. Apart from this I find from Ext. 2, the memorandum prepared by the public Analyst under Rule 17 of "the Rules" that a copy of the memorandum and specimen impression of the seal used to teal the picket of samples was sent separately. Ext. 3, the report of the public Analyst shows that "the teal fixed on the containers sod outer cover of the sample tallied with the specimen Impression of the seal separately tent by the Food Inspector and the sample was in a condition fit for analysis, The notice Issued by the Local Health Authority to the accused about the receipt of the report from the public Analyst informing him that be could get the sample analysed lo the Central Food Laboratory, is marked as Ext. 6. Similarly, I find that the certificate of Analysis by the Central Food Laboratory bears the number of the sample of Bundiya received by the Central Food Laboratory with Memo. No. 467. It was certified that the condition of "the seals on the container and the outer covering tallied with the specimen impression of the seats received separately along with a copy of the Memorandum". It is, therefore, seen that not only the Food Inspector stated that he had complied with the provisions of Rules 17 and 18 and sent the copy of the memorandum and the specimen impression of the seal separately but they are borne out from the reports of the public Analyst and the Director of Central Food Laboratory. Situated thus, I have no hesitation in reaching the conclusion that the finding of the learned Judge that the memorandum and the specimen impression of the seal were not sent to the public Analyst was perverse occasioned due to non-residing or passing over the substractive evidence on record resulting in a failure of justice. On perusal of the evidence of P.W. 1. Shri T.K. Dutta Choudbury, Food Inspector, the copy of the memorandum and the reports of the Public Analyst and the Director, Central Food Laboratory I find that no breach of rules 17 and 18 of "the Rules" was committed by the Food Inspector, Under these circumstances the order of acquittal must be set aside, which I hereby do.

However, the acquittal was, in all probability, on the grounds of ripe old age of the accused and based on compassionate consideration. Indeed, the accused is an old person, now aged about 73 years. He was the owner-cum-cook cum- sales man, rolled into one. He comes from the poor bracket. He does not know English and apparently the colouring dye was bought by him from market and be is an innocent victim of his ignorance. There has been inordinate delay in disposal of the case and the old accused has suffered agonies, anxieties and miseries since 1977, There are authorities within this Court where instead of sentencing the accused to suffer imprisonment, they have been sentenced to pay only fine. There was a delay of 10 years and this Court in State of Assam v. Rameswar Prasad (1984) 2 GLR 88 imposed fine instead of Imposing sentence of imprisonment. In State of Assam v. Binode Agarwalla (1985) 2 GLR 332 in view of the delay the accused was sentenced to pay a fine in default to suffer imprisonment for six months. In State of Assam v. Sharon Agarwala (1983) 1 GLR (NOC) 16 the accused was acquitted in 1979 and the order was set aside by a Division Bench in 1985. The Division Bench held that the ends of justice and crime prevention would be met by sentencing the accused to a fine of Rs. 1000/-. In State of Assam v. Ramnarayan Basudev (1986) 1 GLR 273 the accused were let off with fine of Rs. 1000/- in default, to suffer R. I. for 3 months each. There are other decisions, namely, State v. Shankarlal Sharma, Government Criminal appeal No. 48 of 1970, decided on 5,2 86; State v. R. Oil Industries and Ors. Government Criminal appeal No, 17186, decided on 6.5,86 and Samsul Haque v. State Criminal revision No. 123 of 1981, decided on 8.4.86. The deleterious offences merit deterrent punishment to serve a warning note to others not to repeat the crime. These are offences against the public health and to preserve the health of the nation exemplary punishment should be given to the Food adulterators. These aspects stare on the face of the record. It is necessary to bear in mind that it is the Constitutional right of the accused to get quick justice. The right of quick trial has been breached and the accused is no way responsible therefore. The offence was committed in 1977. Should I send the accused to jail in 1986? The accused was aged about 62/63 years when the offence was committed and DOW be is an old man of 73 years, in the evening of his life. The accused is poor and suffered for long. He is se semi-literate. He is a pent-up force, in true sense of the term. Penal or the penalogical jurisprudence demands punishment which the accused deserves. The constitutional tight of speedy justice has been denied to the accused. Cold-hearted, pitiless, unmerciful and uncompassionate retribution is not the philosophy of our enlightened Constitution and the Law. The accused is not the manufacturer but Is an innocent victim of his illiteracy. He bought the colouring material from the market and used it, surely without knowing whether it was prohibited or non-prohibited colour. Therefore, considering the over all facts and circumstances of the case the status, standing, age, inordinate delay in disposal of the ease, upon setting aside the order of acquittal. I convict the accused u/s 7 read with Section 16 of "the Act'''' but sentence him to pay a fine of Rs. 1000/- in default, to suffer simple imprisonment for six months. The fine imposed should be paid within 4 (four) months from the date of receipt of the records.

In the result the appeal is allowed.

POSTSCRIPT-LET THE UNDERDOGS GET THEIR DUE. The adulterators are the devils. The provisions of "the Act" and "the Rule" has to be made to combat the evils of the devils. The law accords with the provisions of Articles 39 (e) and 47 of our enlightened Constitution. The questions: Whether the object and purposes of the law have been achieved? Whether the law needs changes in the socio-economic misc-e-scene prevalent in India? A bird''s eye view of the statute gives an impression that the English law on the subject has been bodily lifted and planted in Indian soil. In a country like ours where there is so much poverty, ignorance and illiteracy, would it be fair to presume that the highly technical law is understood by the pedlars, petty shop-keepers, who are enmassed, prosecuted and punished? The adulterated materials are manufactured somewhere. They are sold by long puised public and private distribution system, but the manufacturers and distributors go scot-free. The victims are the poor and the illiterates. They arc being caught and punished for (heir illiteracy and for their lack of legal knowledge. While upholding the prietory right of the litigants in civil actions the Supreme Court. in tune with the prevailing socioeconomic million obtaining in India has carefully observed that the ends of justice require large allowance to the masses who are ignorant, poverty stricken and illiterate. Vide Ram Sumiran v. D.D.C. AIR 1965 SC 606 eves where the period for substitution of heirs and legal rspresentatives of a deceased party is expressly limited by the'' statute, but their Lordships enlarged the statutory period and allowed substitution even after 6 years of the party. In Rafiq and Another Vs. Munshilal and Another, Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4 SCC 574 Smt. Lachi Tewari and Ors. v. Director of Land Records and Ors. AIR I984 SC 41, their Lordships directed restoration of the cases considering the disturbing feature prevalent under our present advesary legal system. The party may be " villager or from a rural areas but by and large they have no knowledge of courts proceedings and, accordingly, notwithstanding remiss or negligence of the lawyer the cases dismissed for default of the lawyers were directed to be resorted. It is thus seen that in our country where there is so such poverty, ignorance and illiteracy much allowance or latitude have been granted to the litigants to enable them to safeguard their property right. Now, what I find is that almost all the accused prosecuted and convicted under the Act are the poor, the illiterates and the ignorants. The law is sophisticated and technical. Analysing the entire situation I find that nothing positive and contrite has been done to inform them about the law. If the operation of the legal system is to secure justice, the uninformed should be informed about their duties and obligations under "the Act". Nothing has been brought to my notice to show that there is any effort to educate or inform the poor victims about the penal law. Do chanawalas, phuchkawalas, small stall-keepers know the provisions of the Act and the Rules? Have they any knowledge about the requisite standard of quality? Do they know which are prohibited colours and which are not? On one side we find sophisticated educated persons, who know the law and on the other side large number of illiterate and poor. That may be one of the reasons why the poor are being convicted and the educated end the rich are not notted. In almost all the eases the prohibited articles are purchased from market. The distributors or shop-keepers got them from the manufacturers. As such, the source of adulteration is somewhere else but punishments are inflicted on the poor. They blindly purchase food stuff from open market and use them without knowing it to be adulterated. If the pedlers or stall-keepers are given licence to prepare and vend food stuff, as a matter of right they get unadulterated materiaIs, permitted colour, etc. from earmarked public distribution system. In that event the poor may not suffer. If this system is followed and the licence holders are provided positive and urns purchase points to get their supplies, these persons shall not suffer. When a poor person is sentenced to imprisonment for six months, one year or so, it wrecks the family. The convictions and sentences of the poor bus far reaching impact on the society. The private and public distribution system must be protected to enable them to get unadulterated food. The cheek or vigil and supervision should be at the manufacturers end. The next place of constant supervision and vigilance should be the distributors and lastly the shop-keepers. If the distribution system is properly checked and controlled by the authorities the poor may be saved. There may be other modes and methods. However, what is seen is that the sole importance is given to catch small fry, who are really the victims of their ignorance. Is there any pedlar who knows which are the prohibited colours 7 When they go to shop, ask for colour and specify the colour they arc told and honestly believing that it could be used in food stuff they make the preparations. They can not read nor understand. It is the obligation of those who sell, Us make the purchasers understand that it is u prohibited colour for the preparation of the food stuff. I feel that in most of the cases the innocents are the victims There is some flaw in the entire system. Ono should concentrate more op the manufacturers and distributors rather than these tiny persons who honestly purchase goods oblivious of the nature and quality of the articles and become victims of their ignorance. Necessary provisions should be made to ensure and safeguard them by providing means to enable them to purchase "pure food stuff" from the public or private distribution system. There should be possitive efforts by the State to inform the poor fad the illiterates about the provisions of the law and to guide them properly, No person, in my opinion, unless he is a rank criminal, Knowingly uses adulterated or harmful materials in food stuff. They get them in open market and honestly believe that they are pure. India is perhaps the only country where we get "pure food". It Is indicative of the fact that side by side impure or adulterated articles are being sold. I strongly desire severe punishment to the guilty but the un-informed, the poor and the wretched who have no backing should not be made innocent victims. It is for the appropriate authorities to consider this aspect of the matter. This is why I stated let the underdogs. get their due.