1. This Revision is directed against the Judgment and order dt. 17.2.1992 passed by the learned Sessions Judge. Golaghat in criminal Appeal no. 7/90 confirming the conviction and sentence of the petitioner under section 16 read with section 7 of the Prevention of Food Adulteration act, for short the act, passed in
C.R. Case No.4687/88.
2. Shri GN Sahewalla, the learned senior counsel assailed the judgment of conviction and sentence on the ground that the Food Inspector did not make any attempt to procure any independent witness while taking sample of curd from the hotel premises of the petitioner No. 1. The second leg of argument is that the Food Inspector did not use any preservative while taking sample of the curd and, as such, it was not safe to base conviction on the Public Analyst’s report which, on its face, shows that there was long delay in examination of the sample. The learned counsel also argued that the alleged offence was committed on 15.7.1988 and, therefore, the sentence of imprisonment would be too hard if the petitioner No. 1 is now required to go to jail after lapse of 12 years.
3. Before the above grounds are taken for consideration, it would be pertinent to mention here that the Food Inspector, namely, Shri B.N. Saikia accompanied by Shri Kiran Chandra Das, a Peon working in the office of the Medical and Health Officer. Golaghat visited the line hotel owned by Shri S.P. Gupta on Numaligarh on 15.7.1988 and, after inspection of the sweets and curds stored in the hotel for sale as food for human consumption, took sample of 600 grams of curds after observing all statutory formalities from the employees of the petitioner No. 1. As required under the law, the sample of the curd was divided into 3 equal parts and each part was put in a bottle and packed in accordance with the provisions of the rules. After receipt of the report of the Public Analyst, the Food Inspector obtained sanction from the authority concerned and, thereafter, prosecuted the appellant to face charge under section 16 read with section 7 of the Act. During the course of trial, the Food Inspector examined himself and the said Peon, namely, Shri Kiran Chandra Das who stood as a witness to the collection of the sample. The defence did not adduce any evidence.
4. In so far as the first question regarding non-compliance of the provisions of section 10(7) is concerned, it would appear that the Food Inspector, during the course of his cross-examination, stated that there being no dwelling house or any shop premises in the vicinity of the tine hotel, he did not search for any ‘outside witness’. According to the learned counsel, the mandatory provisions of section 10(7) of the Act have not been complied with and, as such, the appellants are entitled to acquittal. But, the statements of the Food Inspector tendered in cross-examination will have to be read along with the evidence recorded in cross-examination. In this
examination-in-chief, he made a categorical statement that he intended to take sample of the curd and then searched for witnesses but, ‘non agreed to become witness’. The statement in his cross-examination that he did not search for “any other outside witness” is indicative of action of the next stage. The word ‘outside’ makes the position clear. The statement in examination-in-chief in its literal sense means that he made a search for witnesses while taking sample from the shop premises and none agreed to witness. The statement in cross-examination qualified by the word ‘outside’ indicates that he did not make further attempt to search for witnesses in nearby places since, according to him, there was no other shop premises or dwelling house in the vicinity. A close scrutiny of the evidence as a whole makes it difficult to accept the defence version that no attempt whatsoever was made by the Food Inspector to have independent witness. In my opinion, the provisions of section 10(7) of the Act have been duly complied with. When it is shown that the Inspector made an attempt in this direction, the requirement of law stands discharged. This is also the view of the Apex Court available in Ram Labhaya v. Municipal Corporation of Delhi, AIR 1974 SC 789.
5. Now, with regard to the controversy relating to preservative, we may go through the Memorandum (Ext.3) prepared by the Food Inspector. In para-5, it has been clearly mentioned that 16 drops of formaline has been added to the each part of the sample of the curd. In his evidence, the Food Inspector also stated that he had poured 48 drops of formaline as preservative in 600 grams of sample of curd though there is no omission in this regard in Ext. 1, the evidence is sufficient enough to conclude that formaline was used. Moreover, the sample which was collected on 15th July, 1988 was examined by the Public Analyst on or before 24th day of August, 1988. Had there been decomposition, the Public Analyst could not have examined the same.
6. The learned counsel further submitted that the offence was committed in 1988 and, therefore, it would be too harsh a decision to send him to prison after lapse of 12 years. The Supreme Court in the case of State of Uttar Pradesh v. Hanif. AIR 1992 SC 1121 made it clear that after the Amending Act No. 34 of 1976, the minimum sentence prescribed under the act cannot be interfered with in the absence of any specific enabling provision. However, in a similarly situated case, namely, Badri Prasad v. state of M.P., 1995 Supp (4) SCC 682, the Supreme Court held as follows:-
“There is some scope, however, towards the sentence because this court granted in 1989 leave and the appellant is on bail. We would rather now scale down the sentence of six months’ RI to three months’ simple imprisonment, while sustaining the fine of Rs. 1000 as awarded by the courts below. Subject to this modification in the sentence, the appeal otherwise fails. This has been made to enable the appellant to approach the State Government under sub-clause (d) of section 433 for conversion of simple imprisonment to fine. Since the adulteration was only by adding a colouring agent in the chillies power and that was possibly done to please the customer’s eye, we recommend that the State Government release the appellant on the charging of Rs.2000 as fine and that an appropriate order be passed by the State Government to that effect within a period of three months. The appellant shall deposit in the trial court under two heads the fine imposed by the court i.e.. Rs. 1000 as also the alterable fine of Rs.2000 within a period of three weeks from today and apprise the State Government of his having discharged his obligation. On his doing so that appellant need not be arrested.”
7. Thereafter, the Government followed the same principle in N. Sukumaran Nair v. Food Inspector. (1997) 9 SCC 101 and Santosh Kumar v. Municipal Corporation. 2000 AIR SCW 1883.
8. Taking into consideration the ratio as available in the aforesaid cases, I direct the appellant to deposit in the trial Court a sum of Rs. 5,000 (Rupees five thousand) only as fine in commutation of the sentence of six months imprisonment within a period of six weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of the fine, the State Government may formalise the matter by passing appropriate order under Clause (d) of section 433 of the CPC. In the meanwhile, the appellant will remain on bail.
9. The appeal, accordingly, stands disposed of.