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GAUHATI HIGH COURT
BAHARUL ISLAM, J.
CHANDRIKA PROSAD RAI, ACCUSED
VERSUS
THE STATE OF ASSAM
Criminal Revn. No. 110 of 1973,
Decided on : 27 -8 -1975.
PREVENTION OF FOOD ADULTERATION ACT - SECTION 7 READ WITH SECTION 16 - FACTUAL COMPLIANCE WITH SECTION 10(7) - SECTION 13(2) - RIGHT TO SEND SAMPLE TO CENTRAL FOOD LABORATORY - SECTION 22 - QUANTITY OF SAMPLE TO BE SENT TO PUBLIC ANALYST - SUMMARY
Fact of the Case:
The petitioner was convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act for selling adulterated bundia (sweet). He challenged the conviction on the grounds that the prosecution deprived him of the right to send the sample to the Central Food Laboratory under Section 13(2) of the Act, that Rule 22 of the Rules framed under the Act was not complied with, and that Section 10(7) of the Act was not complied with.
Finding of the Court:
The court held that the petitioner was not deprived of his right to send the sample to the Central Food Laboratory under Section 13(2) of the Act as he did not exercise that right. The court also held that Rule 22 of the Rules framed under the Act was not violated as the bundia in question was not a "prepared food" within the meaning of the Rule. Finally, the court held that Section 10(7) of the Act was complied with as the Food Inspector called one or more independent witnesses to be present when he took the sample, even though they declined to come.
Issues: 1. Whether the prosecution deprived the petitioner of the right to send the sample to the Central Food Laboratory under Section 13(2) of the Act? 2. Whether Rule 22 of the Rules framed under the Act was violated? 3. Whether Section 10(7) of the Act was complied with?
Ratio Decidendi: 1. The right to send the sample to the Central Food Laboratory under Section 13(2) of the Act is a valuable right conferred on the vendor, but it is not an absolute right. The vendor must exercise this right by making an application and paying the prescribed fee. In the instant case, the petitioner did not exercise this right. 2. Rule 22 of the Rules framed under the Act does not apply to all food items. It only applies to "prepared food" as defined in the Rule. The bundia in question was not a "prepared food" within the meaning of the Rule. Therefore, Rule 22 was not violated. 3. Section 10(7) of the Act requires the Food Inspector to call one or more independent witnesses to be present when he takes a sample. In the instant case, the Food Inspector called one or more independent witnesses, but they declined to come. The Food Inspector cannot be held responsible for the unwillingness of the witnesses to come. Therefore, Section 10(7) of the Act was complied with.
Final Decision: The court dismissed the petition and upheld the conviction and sentence of the petitioner.
This is an application in revision by the petitioner, who was convicted by a first class Magistrate (Judicial); Gauhati, under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called 'the Act') and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for six months more. On appeal by the petitioner, the order of conviction and sentence passed by the Magistrate was upheld by the Sessions Judge, Kamrup. Hence this petition.
2. The prosecution case is that the District Food Inspector, Soba Prasad Sarma, visited Kapurba Restaurant at Bamunimaidan and purchased 600 grams of 'Bundia' (sweet) from the petitioner (who gave his name as 'Madhusudhan Rai', which was actually his father's name). The article was divided into 3 parts and each part was put in a container and one part was sent to the Public Analyst for chemical examination and another part in a container was given to the petitioner. The Public Analyst gave his opinion that the sample of bundia was coloured with "Metanil Yellow", which is prohibited. On receipt of the report from the Public Analyst, the Food Inspector, aforesaid, obtained necessary sanction from the Civil Surgeon of the District for prosecution of the petitioner and submitted an offence report against 'Madhusudhan Rai'. Madhusudhan was accordingly summoned and was allowed to go on bail of Rs. 1,000/-. On 17-4-1972 when the Magistrate proceeded to take evidence in the case, the Food Inspector pointed out that the man in the dock was not the man from whom he had purchased the bundia. The Magistrate then issued warrant of arrest against 'Madhusudhan Rao" to be identified by the Food Inspector. On identification of the Food Inspector, the petitioner Chandrika Prosad Rai, son of Shri Madhusudhan Rai, was arrested by police. Thereafter the prosecution examined two witnesses and having found a prima facie case charged the petitioner under Section 7 read with Section 16 of the Act.
3. The defence of the petitioner was that it was not he who sold the bundia in question and he pleaded not guilty to the charge.
4. One of the points that came up for decision before the Magistrate was whether the petitioner Chandrika Prosad Rai was the person who sold the bundia in question and he came to the finding that it was the petitioner who sold the bundia to the Food Inspector and that he gave his name as Madhusudhan Rai, which, in fact, was the name of his father. He further held that there was no mistake in the identity of the accused.
5. The prosecution examined two witnesses namely, P.W. 1, the Food Inspector, and P.W. 2 who was one of the witnesses to the sale of bundia, and on a consideration of the evidence oral and documentary, on record the learned Magistrate found the petitioner guilty as stated above and convicted and sentenced him as aforesaid.
6. Shri K. Lahiri, learned counsel appearing for the petitioner, first submits that the prosecution by their conduct deprived the petitioner of the right given to him under Section 13(2) and (5) of the Act. His submission is that the sample was taken on 24th July, 1971 which was received by the Public Analyst on 29th July, 1971. The public Analyst's report was sent on 1st September, 1971 and the complaint was filed in Court on 23-9-1971.
7. Sub-Section (2) of Section 13 of the Act provides that after the institution of a prosecution under the Act the accused vendor or the complainant may, on payment of prescribed fee, make an application to the Court for sending the part of the sample mentioned in sub-cl. (i) or sub-cl. (iii) of cl. (c) of Sub-Section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application, the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub-Sec. (1) of S.11 are intact and may then despatch the part of the sample under its own seal t
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