RAM GOPAL Vs. S N MITRA

JUDGEMENT

(1.) On 10-12-70 Dr. S.N. Mitra, Food Inspector, Corporation of Calcutta visited the grocery shop of accused Ramgopal Agarwal at 8/1, Balmukund Makkar Road, Calcutta and suspecting the stock of Haldi Powder kept and exposed for sale in the said hop to be adulterated he after service of the requisite notice, purchased 450 grams of Haldi Powder from the accused-shopkeeper on cash payment. Dr. Mitra divided the sample powder into three equal part, put each part into empty glass phial and sealed all the phials in presence of witness C.W. 3, One such phial was handed over to the accused, the other was kept by the Food Inspector himself and the last one was sent to the Public Analyst for testing whether there was any adulteration. The Public Analyst carried out the analysis and sent the certificate Ext. 5 in due course which was followed by launching of prosecution on 5-471 at the instance of the Food Inspector against the accused. The sample containing the Haldi Powder was found to be adulterated. The learned Metropolitan Magistrate by his order dated 6-3-78 convicted and sentenced the accused under S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). It is this order of conviction and sentence which is under challenge in this appeal.

(2.) The impugned order of conviction and sentence has been assailed on three grounds, namely, (1) that the Haldi Powder collected from the shop of the accused was not stored for or exposed to sale, (2) that the accused has been seriously prejudiced for the inordinate delay in launching the prosecution as a result of which the valuable right of the accused conferred by S.13(2) of the Act has been defeated and (3) that the prosecution at the instance of the Food Inspector is bad in law. In this connection reliance was placed upon three decisions reported in AIR 1967 SC 970 (Municipal Corpn. of Delhi v. Ghisa Ram), AIR 1966 SC 128 (Mangaldas v. State of Maharashtra) and 1977 Cri LJ 154 (Cal) (Bhola Nath Nayak v. State) respectively.

(3.) Mr. Balai Chandra Roy, the learned counsel for the accused-appellant, had no grievance about the observance of the statutory formalities by the Food Inspector during the inspection of the shop and at the time of the seizure of the Haldi Powder. His only objection is directed against the manner of collection of the sample from the corner of the shop and the food Inspector's refusal to consider the plea of the accused shopkeeper that the said sample had already been rejected by him and the same was never exposed to sale to the public. It is true that the Haldi Powder from which the sample was taken was contained in a loose paper pack and was kept behind the baskets 3/4 cubits off from the corner of the shop room. But that by itself is no proof for the defence contention that the accused had already rejected that stock and so it was set apart at the corner. Admittedly the Haldi powder was stored inside the grocery shop. The Food Inspector who is a public servant, had no enmity with the accused. There is neither any evidence nor even any suggestion that the accused has been harassed by the same Food Inspector on previous occasion. If P.W. 1 had any ill-motive he would not have certainly collected edible oil from the sale-counter and Haldi Powder from another place of the shop. Again how could P.W. 1 guess that only Haldi Powder kept in the loose packet was adulterated ? The astrologer Sitaram Sharma (DW 1), is a chance witness. DW 2 Bansidhar who claims to be the employee of the accused in the shop is untruthful. This witness as also the court witness Nirmal Roychowdhury desperately tried to help the accused when they said that the haldi Powder was left at the shop by some hawker during the absence and without the knowledge of the shop-keeper. Surprisingly enough, the accused himself did not make out any such case in his statement under S.313 Cr. P.C. on 9-9-77 and the new case which was an afterthought was sought to be proved by the court witness who was examined on 7-10-77. Court witness Nirmal did not attend the Court in spite of service of notice on 25-5-73 and 11-8-73. The conduct of the accused is not also consistent with his plea of innocence. Although the complaint was filed on 5-4-71 the warrant of arrest could not be executed and eventually the accused surrendered on 19-2-73. There is no cogent reason to disbelieve the evidence of the Food Inspector who carried out his duties entrusted to him under the statute. The first ground accordingly fails.