The prosecution must prove the intended use of the food, the involvement of the accused, and the adherence to sampling procedures to establish liability under the Prevention of Food Adulteration Act.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. The instant criminal revisional application is filed by the petitioners against the judgment and order dated 22.08.2014 passed by the Learned Additional District & Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta in connection with Criminal Appeal No. 102 of 2013 arising out of judgment and order dated 08.10.2013 passed by the Learned Municipal Magistrate, 2nd Court, Calcutta in connection with Case No. 5D/10 under Section 7 read with Section 16(1)a(i) of the Prevention of Food Adulteration Act, 1954 thereby dismissing the Criminal Appeal No. 102 of 2013 and affirming the judgment and order dated 08.10.2013 passed by the Learned Municipal Magistrate, 2nd Court, Calcutta in connection with Case No. 5D/10 under Section 7 read with Section 16(1)a(i) of the Prevention of Food Adulteration Act, 1954.

2. The petitioner No. 1 had been a Private Limited Company, carrying on the business of running a hotel under the name and style of M/s Dee Empresa Hotel situated at 12/2A, Dr. Md. Isaque Road, Kolkata-700016 (hereinafter referred to as the ‘said premises’). Due to its quality of service, the hotel had gained sufficient repute and goodwill. The petitioner No.2 had been the Managing Director of the petitioner No.1, the petitioner No.3 and 4 were the directors of the petitioner No.1, whereas the petitioner No. 5 was the person-in-charge of the petitioner No.1’s hotel. The petitioner Nos. 2 to 5 were not actively involved in the day to day business of the petitioner No.1’s hotel but were merely executives of the petitioner No.1 Company.

3. On 9th December, 2009 at about 4 P.M. one Shaymal Kumar Chakraborty entered the said premises and introduced himself to the petitioner No.5 as the Food Inspector of the respondent No.1. The premises were inspected by him and certain quantity of ‘biscuit powder’ (hereinafter referred to as the ‘said article’) was found to be kept in the kitchen of the said premises. The petitioner No.5 was interrogated by the above-mentioned Food Inspector, wherein, the petitioner No.5 explained that the said article was merely kept in the said premises and not meant for cooking purposes or for sale.

4. A sample of the said article was taken by the Food Inspector allegedly for the purpose of testing. Such sample was taken in the presence of one Dhananjay Sinha Mahapatra (being PW-3) as the sample witness, who was also a Food Inspector of the respondent No.1. Despite the presence of local people and other nearby shop keepers the above-mentioned Food Inspector was chosen to be the sample witness. A part of such sample was to be sent to the Public Analyst for analysis, whereas the remaining parts of the sample were sent to the Local Health Authority & Chief Municipal Health Officer.

5. The Public Analyst’s report bearing No.JP/59/09 dated 5th January, 2010 was received from the office of the Local Health Authority wherein it was allegedly reported that the said sample was adulterated and unfit for human consumption under the Prevention of Food Adulteration Act, 1954 ( hereinafter referred to as the ‘said Act’)

6. The Food Inspector submitted incomplete records of the above inspection along with the report of the Public Analyst to the Chief Municipal Health Officer of the Kolkata Municipal Corporation. The Local Health Authority without considering the relevant documents evasively granted written consent to file prosecution case before the appropriate forum.

7. The petitioners neither admitted before the Trial Court nor before the respective Appellate Court that the said article was meant for human consumption and for sale as such. The said article was commonly found in both residential and commercial kitchens and had been a waste by product of the raw materials. Such article was not meant for human consumption and the petitioners observed due diligence to ensure the same. The petitioners kept such article in the premises without the intention to use the same for preparation of foo