Tara Pado Modak vs The State Of Jharkhand
2021 Latest Caselaw 2699 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          Criminal Revision No. 215 of 2012

                     Tara Pado Modak, Son of late Hari Pado Modak, Resident of
                     Village - Manbad, Jharia, P.O. & P.S. - Jharia, District -
                     Dhanbad                             ...   ...     Petitioner
                                         Versus
                     The State of Jharkhand ...        ...      Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through Video Conferencing

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10/04.08.2021 Heard Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Bishambhar Shastri, learned counsel appearing on behalf of the opposite party - State.

3. This petition has been filed against the judgment and order dated 23.02.2012 passed in Cr. Appeal No.132/2008 by learned Sessions Judge, Dhanbad, in connection with P.F.A. Case No.09/1994/ T.R. No.935/2008 whereby the judgment and order of conviction and sentence dated 19.05.2008 passed by learned Sub- Divisional Judicial Magistrate, Dhanbad, has been affirmed.

The petitioner was convicted by the learned trial court for the offence under Section 16 (1)(a)(c) of the Prevention of Food Adulteration Act, 1854 and was sentenced to undergo S.I. for one year and fine of Rs.1,000/- and in default of payment of fine, further to undergo S.I. for 2 months.

Arguments of the Petitioner

4. Learned counsel for the petitioner while assailing the impugned judgments has submitted that the impugned judgments are perverse in view of the fact that the petitioner was not the owner of the shop from which the alleged adulterated food has been collected by the Food Inspector. He also submits that Exhibit-B was produced before the learned court below by the defence witness Keshav Dev Agarwal which indicated that the petitioner was under his employment.

Learned counsel has further submitted that the food licence was issued in the name of his full brother namely Vishnu Pado Modak, who was never made accused in the case and the licence was exhibited as Exhibit A.

5. Learned counsel submits that the petitioner has been convicted on the basis of evidence of the sole witness P.W.1, but he was accompanied by two more persons namely Mustafa khan, Health Supervisor and Md. Khalil, peon, but they were not examined and non-examination of the persons accompanying the Food Inspector is fatal to the prosecution case and creates a doubt in the prosecution case.

6. He submits that the aforesaid aspects of the matter have not been properly considered by the learned courts below.

7. Without prejudice to the aforesaid submission, the learned counsel submits that an affidavit has been filed by the State in the present case indicating that the petitioner is 63 years of age. He also submits that the petitioner has faced the criminal case since 1993 and has remained in custody during the pendency of the present revision petition as he had surrendered on 25.06.2012 and was released on bail vide order dated 04.07.2012. Learned counsel has also submitted that considering the fact that the petitioner has faced the rigors of criminal case for a long time, some sympathetic view may be taken by this Court.

Arguments of the State

8. Learned counsel appearing on behalf of the State has submitted that the learned courts below have fully considered both exhibits i.e., Exhibit A and Exhibit B which were filed from the side of the defence and he submits that it has come on record that the petitioner was the vendor at the shop from where the food was purchased by the Food Inspector (P.W-1). Learned counsel submits that there is no scope for re- appreciation of evidences on record and coming to a different

finding. So far as the point of sentence is concerned, the learned counsel submits that there is minimum sentence of six months and fine not less than Rs.1,000/-prescribed under Section 16 of Prevention of Food Adulteration Act, 1854. In such circumstances, if this Court is inclined to modify the sentence, then the period may not be less than 6 months simple imprisonment.

Rejoinder argument of the Petitioner

9. Learned counsel for the petitioner, in response, has referred to the judgment passed by the Hon'ble Supreme Court in the case of State of Orissa Vs. K. Rajeshwar Rao reported in (1992) 1 SCC 365 and submits that the Hon'ble Supreme Court has been pleased to modify the sentence, and only fine of Rs.500/- was imposed.

Findings of the Court

10. The prosecution case in brief is that one Food Inspector (P.W-1), who was posted in that capacity in Jharia area during the relevant time, visited the sweet shop of accused Tara Pado Modak on 10.09.1993 along with his two associates namely Md. Khalil, Peon and Mustafa Khan, Health Supervisor and purchased 1 ½ Kgs of Bundia from the vendor accused Tara Pado Modak. Thereafter he informed the petitioner through Form - VI that said Bundia has been purchased as sample for chemical analysis and thereafter he distributed the said sample of Bundia in three equal parts and kept each part in three bottles and the same were properly sealed and packed along with the paper and seal provided by the MADA office. A report was prepared on which signature of the vendor (petitioner) and signature of the official witnesses were obtained in addition to the signature of the Inspector. The sample was sent to Public Analyst, MADA and after analysis, it was found adulterated. It was further the case of the prosecution that thereafter necessary sanction of the competent authority was obtained and official

complaint was filed in the court. It has also come on record that on the request of petitioner, the sample was also sent to CFL Calcutta and from there also it was reported that the sample was adulterated.

11. The substance of the accusation was explained to the sole accused to which he pleaded not guilty and claimed to be tried.

12. Defence in this case is in denial of any connection or relation of the petitioner with the place of occurrence shop and the plea taken is that at the relevant time, he was present there as a customer and he has been falsely implicated to save the skin of actual vendor of the place of occurrence shop namely Bishnu Pada Modak. However, it is not in dispute that Bishnu Pada Modak is the full brother of the petitioner.

13. During trial, only one witness, the Food Inspector and the complainant of the case, was examined on behalf of the prosecution and in addition, the following documents were proved in support of the prosecution case:

Ext. - 1 was Form VI of P.F.A. Act and rule Ext. - 2 was purchase report Ext. - 3 was Memorandum of Inspector and the sample Ext. - 4 was the Report of Public Analysis Ext. - 5 was the sanction for the prosecution Ext. - 6 was prosecution report of the case Ext. - 7 was the Report of CFL Calcutta

14. On the other hand, one defence witness namely Keshaw Deo Agarwal was examined, who has proved a certificate dated 03.12.2007 as Ext- B, and duplicate of licence of aforesaid sweet shop standing in the name of Sri Bishnu Pada Modak, as Ext. - A.

15. P.W. 1 has deposed that on the relevant date and time, he along with his subordinates Md. Khalid and Mustafa visited the P.O shop situated by the side of P.S. Road Jharia and purchased 1 ½ kgs of Bundia from the accused vendor and thereafter

informed him that said Bundia has been taken as sample for chemical analysis through Form - VI and thereafter he distributed the said Bundia in three equal parts and kept in three bottles and the same were duly packed and sealed and on each of the sample signature of vendor in addition to others were also taken and thereafter purchase report was prepared which was also signed by the accused in addition to witnesses and the Food Inspector. This witness has proved Form VI as Ext. - 1, purchase report along with its contents as Ext. - 2. This witness has further deposed that one part of the sample was submitted to Public Analyst and two parts of sample were submitted and in addition separate memorandum along with seal was sent to public analyst. He has proved the memorandum prepared at the place of occurrence shop which was marked as Ext. 3. This witness has deposed that report of the public analyst was received whereby the sample was declared to be adulterated. This witness has also proved the sanction of competent authority and also preparation of prosecution report which were marked as Ext. 5 and Ext. 6. This witness has also proved the report of CFL where sample was sent on the request of the accused vendor and through its report the sample has also been found to be adulterated. This report was marked as Ext. 7. This witness was thoroughly cross- examined by the defence.

16. The solitary witness from the side of the defence, D.W.1 happens to be a business man and he has been examined to substantiate that the petitioner had no connection with the place of occurrence shop and rather the petitioner was an employee of D.W.1 since 1984 and for which a certificate dated 3.12.2007 was marked as Exhibit - B.

17. The learned trial court considered the said certificate and found that Exhibit B was of the period of pendency of the proceedings before the court i.e., of the year 2007 and was

issued by a private business man and the said certificate neither had any serial number nor any reference that on which date the petitioner was appointed by D.W.1 and accordingly, the learned trial court was of the view that Exhibit B did not inspire confidence.

18. The defence had exhibited another document i.e., Exhibit A which is duplicate of the licence of the place of occurrence shop standing in the name of one Bishnu Pado Modak and upon suggestion given to P.W.1, it appeared that Bishnu pado Modak was full brother of the petitioner. The learned trial court was of the view that Exhibit A established that on the relevant date and time, the sweet shop was in existence and that evidence of P.W.1 has proved that the petitioner was present at the time of the visit of the Food Inspector as customer at the place of occurrence shop. The learned trial court was of the view that the petitioner was the full brother of the licensee of the shop and during the relevant time, vending of the shop materials was being performed by the petitioner. The learned trial court also noticed that as per order sheet dated 30.08.1995, it was the petitioner who had applied to get the sample analyzed by CFL, for which he deposited Rs.2500/-.

19. Considering the totality of the facts and circumstances of the case, the learned trial court was of the view that at the relevant date and time, it was the petitioner who was the vendor and the incharge of the vending business of the shop. The learned trial court was of the view that the prosecution has been able to prove the case against the petitioner beyond shadow of all reasonable doubt and convicted the petitioner for offence under Section 16 (1) (a) (c) of the Prevention of Food Adulteration Act and considering the nature of offence, sentenced the petitioner to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default

of payment of fine, the petitioner was directed to undergo a period of simple imprisonment of two months.

20. The learned appellate court also considered the evidences on record and rejected the plea of the petitioner that in absence of public witness joining at the time of collection of sample and prosecution having examined only one witness, the other two witnesses accompanying P.W-1 were not examined, the conviction of the petitioner cannot be sustained. The learned appellate court recorded its ultimate finding at para 15 that it was not in dispute that Bundia was found adulterated. The learned appellate court also recorded that it has not been stated by the defence that the sole prosecution witness i.e., the Food Inspector was inimical with the petitioner and therefore, the petitioner has been falsely implicated. The learned appellate court recorded that P.W.1 was authorized to collect sample. Sanction for prosecution was also granted by the authorized person. Receipt of the purchase was acknowledged by the petitioner who was selling Bundia and no objection was raised at that time or subsequently, at the stage of trial by alleging that the signature of the petitioner was forcibly obtained. The learned appellate court was of the view that due to non- corroboration of testimony P.W.1, the trial cannot be vitiated.

21. The learned appellate court also recorded that P.W.1 in his deposition nowhere deposed that the petitioner prevented him from taking sample and therefore there was no violation of Section 16 (1) (c) of the Prevention of Food Adulteration Act. However, it was found that the prosecution has established that the petitioner was selling Bundia which was found adulterated as article of food.

22. The learned appellate court was of the view that the learned trial court had rightly held the petitioner guilty of offence under Section 16 (1) (a) of the Prevention of Food

Adulteration Act and refused to interfere with the judgment passed by the learned trial court.

23. In view of the aforesaid facts and circumstances, this Court finds that the learned courts below have considered the materials on record, both oral and documentary from the side of the prosecution as well as defence and have returned concurrent findings in connection with proved allegation against the petitioner for offence under Section 16 (1) (a) of the Prevention of Food Adulteration Act. The arguments which have been advanced by the petitioner regarding Ext. A and Ext. B and non-examination of other witnesses who had accompanied the P.W.1 to the shop have already been considered by the learned courts below. The learned trial court has disbelieved the Exhibit B regarding employment of petitioner under D.W.1 and held that the petitioner was the full brother of the licensee of the shop and at the relevant date and time, the petitioner was the vendor in the shop and sold Bundia to the Food Inspector which was collected as sample for testing.

24. So far as the judgment passed by Hon'ble Supreme Court reported in 1992 (1) SCC 365 (supra) is concerned, this Court finds that in the said case, it has been held that for being an accused under the provisions of Prevention of Food Adulteration Act, the accused need not be the owner of the shop selling adulterated food articles. The Hon'ble Supreme Court has held that the essential ingredient is sale to purchaser by the vendor. It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It has been held that it is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. The Hon'ble Supreme Court was of the

view that the Prevention of Food Adulteration Act is a welfare legislation to prevent health hazards by consuming adulterated food and mens rea is not an essential ingredient. The Hon'ble Supreme Court held that the food adulteration is a social evil and the Prevention of Food Adulteration Act prohibits commission of offences under the said Act.

25. In view of the aforesaid judicial pronouncement, this Court finds that merely because the petitioner was not the licensee of the shop, the same has no bearing in the matter. There are concurrent findings recorded by the learned courts below that the petitioner was the vendor at the shop when the food article i.e., Bundia was purchased by the Food Inspector which was subjected to analysis and was found to be adulterated.

26. Considering the aforesaid facts and circumstances and the nature of offence, this Court finds that the learned courts below have meticulously considered the evidences on record and have rightly convicted the petitioner for offence under Section 16 (1) (a) of the Prevention of Food Adulteration Act.

27. So far as the conviction under Section 16 (1) (c) of the Prevention of Food Adulteration Act is concerned, it has been recorded by the learned appellate court that P.W.1 in his deposition nowhere deposed that the petitioner prevented him from taking sample and therefore there was no violation of Section 16 (1) (c) of Prevention of Food Adulteration Act. Thus, the appellate court sustained the conviction of the petitioner only to the extent under Section 16 (1) (a) of the Prevention of Food Adulteration Act.

28. So far as the modification of sentence is concerned, the learned counsel for the petitioner has heavily relied upon the aforesaid judgment reported in 1992 (1) SCC 365 (supra) to submit that in the said case, the Hon'ble Supreme Court has reduced the sentence to a fine of Rs.500/- only considering the

elapse of time of 15 years from the date of the offence. This Court finds that in the said judgment the matter was relating to offence committed prior to amendments made in the Prevention of Food Adulteration Act and at the relevant point of time, there was no provision for imposition of minimum sentence. This Court finds that the date of occurrence in the present case is 10.08.1993 and by that time the Prevention of Food Adulteration Act has amended and a provision for minimum sentence of 6 months and minimum fine of Rs.1000/- was already introduced. The said Section 16 of the Prevention of Food Adulteration Act as applicable to the petitioner has been quoted in the appellate court's judgment.

29. Considering the aforesaid facts and circumstances of this case and considering the fact that the present offence of the petitioner is the first offence and around 28 years has elapsed from the date of the occurrence, and keeping in light the legislative intent of providing minimum sentence of 6 months and fine of Rs.1000/-, this Court feels that the ends of justice will be served if the sentence of the petitioner is modified to the minimum sentence as prescribed under the Act itself. Accordingly, the sentence of the petitioner is modified to 6 months simple imprisonment with the fine of Rs.1000/- and on account of default of deposit of the fine amount, the petitioner would undergo further imprisonment for a period of one month.

30. Accordingly, the present petition is disposed of with the aforesaid modification of sentence.

31. Interim order, if any, stands vacated.

32. The bail bond furnished by the petitioner is hereby cancelled.

33. Pending interlocutory application, if any, is dismissed as not pressed.

34. Let the Lower Court Records be immediately sent back to the court concerned.

35. Let a copy of this order be communicated to the learned court below through "FAX/Email".

(Anubha Rawat Choudhary, J.) Saurav/