SURENDRA PRASAD GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE present revisional application has been filed by the petitioner challenging the order dated October 9th, 2013 passed by the learned Municipal Magistrate, 4th Court at Kolkata in connection with the case No. 110/1994 thereby rejecting the petition for time and issuance of warrant of arrest against him. The brief fact of the case may be narrated here is that the opposite party No. 2 the Food Inspector, Kolkata Municipal Corporation inspected the shop of the petitioner and found some spices (packets of chili powder) were stored and export for sale. The opposite party No. 2 collected the sample in presence of witnesses and after observing all formalities and thereafter sent the articles to the public analyst. On receiving the report through the legal health authority, the Food Inspector placed the report to the Chief Municipal Health Officer, Calcutta Municipal Corporation who in writing permitted to initiate a case against the present petitioner. Accordingly, complaint was lodged which was registered as 11D of 1994 under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The case ended in conviction of the petitioner.

(2.) THE petitioner challenged the said order of conviction before Appeal Court which was registered as Criminal Appeal No. 36 of 2002 before learned Chief Judge, City Sessions Court, Kolkata. Learned Sessions Judge, 9th, First Track Court dealt with the said appeal and was pleased to uphold the order of conviction.

(3.) MR . Debasish Roy with Mr. Angshuman Chakraborty appears on behalf of the petitioner. Mr. Roy submits and argued that both the court below failed to consider that the Food Inspector/complainant did not follow the proper procedure and collection of sample of chili power as provided in Section 11(1)(b) of the Act and sending the same to the public analyst as such the judgment of conviction and the sentence cannot stand in the eye of the law. It is further submitted by Mr. Roy that both the Court below failed -to consider that the Food Inspector did not take the representative sample which is mandatory as per law. Learned Court below ought not to lie the evidence of Food Inspector of the complainant when there is/was discrepancies in his evidence and documents produced by him as such on this score order of conviction and sentence cannot stand in the eye of law. Mr. Roy also disputed about the service of notice under Section 13(2) of the Prevention of Food Adulteration Act. It is also submitted that learned Court has failed to appreciate that the petitioner is not a manufacturer of double star brand chili power and he has produced the memos of purchase of the same from a concerned. So, he is protected under Section 19(2) of the Prevention of Food Adulteration Act, 1956. It is also submitted that learned Lower Appellate Court failed to appreciate that the trial has been vitiated due to non compliance of several mandatory provisions of law as laid down in the Prevention of Food Adulteration Act and Rules.