Swarup Sen vs The State Of West Bengal
2021 Latest Caselaw 4457 Cal

                        In the High Court at Calcutta
                       Criminal Appellate Jurisdiction
                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                        C.R.A No.460 of 2019
                                 With
          IA NO: CRAN 2 of 2020 (Old No. CRAN 2987 of 2020)
                                  &
          IA NO: CRAN 3 of 2020 (Old No. CRAN 2988 of 2020)



                                Swarup Sen
                                     Vs.
                          The State of West Bengal




For the appellant                      :      Mr. Anjan Bhattacharya,
                                              Ms. Anita Shaw

For the State                          :      Mr. Ranabir Roychowdhury

Hearing concluded on                   :      31.08.2021

Judgment on                            :      01.09.2021



Sabyasachi Bhattacharyya, J:-



1.

The appellant, who is in custody, has preferred a challenge against his

conviction under Sections 272 and 273 of the Indian Penal Code

(hereinafter referred to as "the I.P.C.").

2. The moot ground of challenge is that the evidence produced in the

matter does not incriminate the appellant under either of the aforesaid

Sections of the Indian Penal Code.

3. Sections 272 and 273 of the I.P.C are quoted below:

"272. Adulteration of Food or drink intended for sale.--Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

273. Sale of noxious food or drink.--Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

4. It is argued that the appellant was merely sitting in the hotel, which is

run by his father, at the juncture of his apprehension.

5. It is argued that none of the documents seized or produced in

evidence indicate that the appellant was connected in any way with

the alleged cooking of rotten meat.

6. Learned counsel hands over photocopies of certain documents, being

the trade license and other connected permissions issued by several

authorities in the name of the appellant's father, to lay stress on the

contention that the hotel-cum-restaurant business is run by the

father of the appellant and that the appellant is in no way connected

with the running of the said business.

7. Learned counsel appearing for the State contends that the appellant

was apprehended by the officials of the Bongaon Municipality while

the appellant was engaged in cooking such rotten food items in the

restaurant. As such, it ought to be presumed that the yardsticks of

Section 272 of the I.P.C are clearly satisfied.

8. A perusal of the relevant provisions clearly indicates that Section 273

of the IPC pertains to sale of noxious food or drink. Since there is

nothing on record even to indicate that the appellant was connected in

any way with the sale of any such article-in-question, the said

provision is not attracted at all in the present case.

9. As far as Section 272 of IPC is concerned, the only allegation which

might have been levelled against the appellant is that the appellant

adulterated the rotten food, intending to sell such article as food, or

knowing it to be likely that the same would be sold as food.

10. However, mere evidence of the Bongaon Municipality officials that the

appellant was "engaged" in cooking such food, without an iota of

evidence that such food was being "adulterated" by the appellant with

the intention to sale, or even knowing it to be likely that the same

would be sold as food, is vague is utterly insufficient to incriminate

the appellant of any violation of Section 272 of the IPC at all.

11. Even if the appellant was seen to be engaged in cooking the rotten

food, the expression "engaged" is as vague as can be and does not

show any direct involvement of the appellant in any act of

'adulteration' of the food item.

12. That apart, there is no evidence on record at all even to indicated that

the appellant intended the said food to be sold or likely to be sold as

food, at the nascent stage of cooking, which is, by no stretch of

imagination, directly a part of the process of sale. It may very well be

that the food was being cooked for the consumption of the employees

of the hotel or the family of the owner thereof and/or for some other

purpose. Without any credible direct link between the cooking and

the act of adulteration, let alone such cooked food being intended to

be sold, the entire superstructure of allegations against the appellant

is rendered a castle in the sand, which not sufficient, by the

standards of criminal trial, that is, beyond reasonable doubt, to indict

the appellant under any of the Sections clamped against him.

13. That apart, in view of the suppliers of the rotten meat themselves

having faced custody trial but ultimately having been acquitted due to

absence of reference of their names in the statement of the five

witnesses recorded under Section 161 of the Code of Criminal

Procedure, as evident from the order dated January 5, 2021 passed by

a co-ordinate bench in C.R.A. No. 540 of 2019, with IA No: CRAN 2 of

2014 (Old No. CRAN 4479 of 2019), there is no question of holding the

appellant, who had no part to play in any sort of adulteration and/or

sale of such allegedly rotten meat, guilty of violation of Sections 272

and/or 273 of the IPC. The appellant has merely been sought to be

made a scapegoat to vindicate the allegations of adulteration of food.

14. Hence, the indictment and conviction of the appellant, by the

impugned judgment and order dated June 26, 2019 passed by the

Additional Sessions Judge, First Court at Bongaon, District: North 24

Parganas in Sessions Case No.157 of 2018 (SC 207/18) are set aside.

CRA 460 of 2019 is, thus, allowed on contest. The appellant, who is at

present in custody, is acquitted honourably and is hereby set free

from custody. Necessary steps shall be taken by the concerned

authorities, including the Superintendent of the Correctional Home

where the appellant is in incarceration, to release the appellant from

custody at the earliest, upon being intimated of this order.

15. The office is directed to communicate this order immediately to the

concerned Superintendent of the Correctional Home where the

appellant is at present behind bars. The authorities and all concerned

shall act on such communication and/or written communication of

this order by the learned Advocates for the parties, accompanied by

server copies thereof, without insisting upon prior production of a

certified copy.

16. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )