State of Assam Vs. Banwarilal Pipalwa - Court Judgment

Excerpt:
- - --the principal contention raised by the learned counsel for the petitioner is that the sample of curd has not been taken in accordance with the well recognised practice which has hardened into judge made law. s.n. phukan, j.1. by judgment and order dated 14-10-1988 passed by the learned chief judicial magistrate, kamrup at guwahati in case no. 1485 c of 1986 and the accused person was found not guilty under section 16(1)(a) of the prevention of food adulteration act, 1954, for short act. this court by order dated 16-6-89 took suo-motu action. hence the present proceeding.2. the case was instituted on an offence report dated 30-4-86 filed by the food inspector, kamrup. according to the prosecution on 21-6-85 at about 2 p.m. shri goswami, the then food inspector, with his office peon visited the premises of m/s. mahabir mistanna bhandar, silpukhuri, guwahati and took sample of dahi stored for sale after observing all the formalities and by serving a notice in form vi on the owner; namely the.....

Judgment:

S.N. Phukan, J.

1. By judgment and order dated 14-10-1988 passed by the learned Chief Judicial Magistrate, Kamrup at Guwahati in Case No. 1485 C of 1986 and the accused person was found not guilty Under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, for short Act. This court by order dated 16-6-89 took suo-motu action. Hence the present proceeding.

2. The case was instituted on an offence report dated 30-4-86 filed by the Food Inspector, Kamrup. According to the prosecution on 21-6-85 at about 2 p.m. Shri Goswami, the then Food Inspector, with his office Peon visited the premises of M/s. Mahabir Mistanna Bhandar, Silpukhuri, Guwahati and took sample of Dahi stored for sale after observing all the formalities and by serving a notice in Form VI on the owner; namely the accused. The Food Inspector divided the sample into three parts -- one part was sent to the Public Analyst, Guwahati along with a copy of the memorandum affixing seal impression of the seal used in the said sample in a sealed cover. Another copy of the memorandum was separately sent to the Public Analyst. Other two parts of the sample were kept with the Local Health Authority.

3. The Public Analyst found the Dahi as sub-standard and accordingly after obtaining sanction for prosecution, an offence report under Section 7 read with Section 16 of the Act was filed. Prosecution examined two witnesses and the accused pleaded not guilty and stated in his statement Under Section 313, Cr. P.C. that the curd was prepared for his own use from the milk purchased from 'Nepali'. The accused also stated that he did not receive the report of the Public Analyst. According to accused the three samples of the curd were not taken as required under the law.

4. Heard Mr. S. S. Sharma, learned counsel for the accused and Mr. Kataky, learned Public Prosecutor.

5. From the impugned judgment I find that the trial court recorded that the notice under Section 13(2) of the Act stated to be sent by registered post but no evidence was adduced to show that actually it was so posted. Relying on the decision of a Division Bench of this Court in State of Assam v. Anukul Ch. Dey (1985) 1 GLR 521 the learned court gave the benefit of non-service of notice to the accused. In Anukul Ch. Dey (supra) this Court held that Section 13(2) of the Act is mandatory in nature and non-compliance of the same would vitiated the trial. In the said decision the Court found that there was nothing on record, of the trial court to show that copy of the report was sent or served on the accused. The Division Bench held that it is obligatory on the part of the authority to serve a copy of the report of the result of the analysis on the accused informing him to make an application to the court, if he so desire, within a period of 10 days from the date of receipt of the copy to the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory in view of the provision of Section 13(2) of the Act.

6. The above ratio laid down by the Division Bench of this Court squarely covers the case in hand and on this ground alone the accused is entitled to get acquittal, which was done by the learned trial court.

7. Regarding taking up of sample of Dahi Mr. S. S. Sharma, learned counsel has drawn the attention of this court to a decision of Punjab and Haryana High Court in Raj Pal v. State of Punjab 1984 (II) FAC 205. The single Bench of the court in para 3 of the judgment stated as follows:--

The principal contention raised by the learned counsel for the petitioner is that the sample of curd has not been taken in accordance with the well recognised practice which has hardened into Judge made law. There is catena of precedents that the curd has to be vertically cut and the entire cut compartment has to be taken out; that churned and later on divided into 3 equal parts for being put into sample bottles. The Food Inspector has no doubt stated at the trial that before taking the sample, he divided the curd in the kunda into 4 compartments vertically and then churned one of the compartments of curd in a garva to make it homogeneous but in the complaint it is nowhere but in the complaint it is nowhere mentioned that it was done so. Dr. Ram Kumar, P.W. 2, is also silent on this point. It is a matter of common knowledge that cream accumulates on the top of curd and if the curd is not properly stirred when the sample is taken, it is bound to be deficient in essential ingredients. The process of churning has not been adopted in the instant case and thus serious prejudice, to the petitioner has obviously been caused. The sample taken are not representative of the entire substance as these should have been. In any case, the petitioner has not to suffer for the fault of the prosecution.

8. With respect I am in agreement with the above ratio regarding taking of sample of curd as it stands on different footing. In my opinion the above procedure has to be followed at the time of taking sample of curd by the Food Inspector to make it homogeneous as cream accumulates on the top of curd. If this is not followed the sample taken of curd will not be of representation character of the entire article namely the curd.

9. In the case in hand also the above procedure was not followed and so the trial Court rightly acquitted the accused.

For what has been stated above I find no merit in the present proceeding and accordingly it is dropped. The impugned judgment and order dated 14-10-88 is upheld and in other words the accused was rightly acquitted.