Uma Sankar Tewari vs The State of Assam

Manisana, J.—The Petitioner Uma Sankar Tewari was charged with offence punishable u/s 16 r/w 7 of the Prevention of Food Adulteration Act for storing and selling of mustard oil which did not conform to the standards and turmeric powder which was adulterated. The learned Judicial Magistrate, 1st Class, Barpeta, in Case No. 6l5c/78, found the charge proved and convicted the Petitioner u/s 16 r/w 7 of the Act and sentenced him to R.I. for 6(six) months and to pay a fine of Rs. 2000/- (Rupees two thousand), in default to undergo R.I. for another 2(two) months.

Being aggrieved by the conviction and sentence, the Petitioner filed C.A. No. 12(K-3)/79 in the Court of the learned Additional Sessions Judge, Kamrup, Gauhati. The learned Additional Sessions Judge has held that the Petitioner could not be held guilty and convicted to respect of selling of the turmeric powder. But he has held that the Petitioner would be guilty for selling of the mustard oil which did not conform to the standards. Therefore, the learned Additional Session Judge has confirmed the conviction and sentence of imprisonment of the Petitioner u/s 16 r/w Section 7 of the Act. He, however, reduced the fine to Rs. 1000/-; hence this petition.

On perusal of the examination of the accused u/s 313, Code of Criminal Procedure, I find that there was insufficient examination. Section 313(1), Code of Criminal Procedure runs as follows:

In every inquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).

In Hate Singh Bhagat Singh Vs. State of Madhya Bharat, the Supreme Court has held:

We have a further comment to make. Both the Sessions Judge and the High Court have attached importance to the fact that both accused absconded, but at no stage of the case have they been asked to explaint his. We have stressed before the importance of putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it if he can. We regret to find that this rule is so often ignored.

(emphasis added)

In Ram Shankar Singh and Others Vs. State of West Bengal, the Supreme Court has held:

Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is a necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the section is to afford to the accused an opportunity of showing that the circumstance relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him.

Circumstances means attendant or accompanying facts, events or conditions. Subordinate or accessory facts; e.g. evidence that indicates the probability or improbability of an event. (See Black''s law dictionary).

The learned Magistrate has put only three questions to the accused. The questions and answers show that there was insufficient, and/or imperfect examination or the accused u/s 313, Code of Criminal Procedure. Examination u/s 313, Code of Criminal Procedure is not an idle formality. Imperfect examination means imperfect appreciation of evidence. But the Courts below have considered many materials or circumstances which were not put to the accused when be was examined u/s 313, Code of Criminal Procedure, for example, Ext. 12, the report of the public analyst. The report of the public analyst, Ext. 12, is one of the important circumstances, but this circumstance or material was not put to the accused.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Supreme Court has held:

It is not necessary for us to multiply authorities on this point at this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the Appellant in his examination u/s 313 of the Code of Criminal Procedure have to be completely excluded from consideration.

In view of the above decisions of the Supreme Court, Ext. 12 cannot be considered against the accused. Therefore, the conviction and sentence cannot be allowed.

The next question which arises for consideration is whether the case should be remanded for retrial from the stage of examination u/s 313, Code of Criminal Procedure, or whether the accused should be acquitted. On the over-all consideration of the facts and circumstances of the case including the fact that the adulteration of articles of food is an extremely anti-social act, I am inclined to remand the case to the learned Judicial Magistrate, 1st Class, Barpeta.

For the foregoing reasons, the conviction and sentence passed by the Courts below are set aside and the case is sent back for retrial in respect of the charge of the sale of mustard oil in accordance with law from the stage of the examination of the accused u/s 313, Code of Criminal Procedure to the Judicial Magistrate, 1st Class, Barpeta. The learned Magistrate shall examine the accused as contemplated u/s 313, Code of Criminal Procedure and in the light of the above observations. The learned Magistrate shall put all the material facts and circumstances including documents which are intended to be used against the accused. With the above observations and direction, the petition is allowed and disposed of.