KUMUD RANJAN ROY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal revision application is from the judgment dated 25-7-75 of the Sessions Judge, Nowgong dismissing the appeal against conviction of the accused petitioner under Sec. 16(l)(a)(ii) read with Sec. 7(v) of the Prevention of Food Adulteration Act. hereinafter called the "Food Act", and sentencing him to undergo R.l. for 3 months and to pay a fine of Rs. 500.00 in default R.T. for one month.

(2.) The District Food Inspector, Nowgong on 8-4-73 purchased 750 grams of Khesari dal from the accused-petitioner for analysis; and the public Analyst reported that the article was prohibited Khesari dal. The accused was first charged under Sec. 7(iv) read with Sec. 16 of the Food Act. At the trial the prosecution examined 3 witnesses and the accused examined himself in defence. Later, the charge was-changed into Sec. 7(v) read with Sec. 16; and the accused was given opportunity to cross-examine the P.Ws after amendment of the charge. P.W. 1 the District Food Inspector deposed to have followed strictly the procedure prescribed and to have seized and kept in zimma 45 Kgs. of Khesari dal found with the petitioner. The formalities for prosecution were correctly observed. PW 2 and PW 3 corroborated PW1 PW 4 the Civil Surgeon testified the formalities of sanction. The accused petitioner as DW 1 deposed that the shop belonged to his father and on the date when the Food Inspector entered the said shop his father was ill and he (accused) went to the shop for maintaining the cash; and he did not know what was done by the Food Inspector with the employee of the shop; and that he put his signature in some paper as asked by the Food Inspector. He himself did not sell any article to the Food Inspector or received any price. There is no dispute that the sample was of Khesari Dal; and there is no infirmity in the procedure of taking and sending the sample as well as in prosecuting the accused petitioner. It can not also be disputed that the sale for analysis constituted sale for the purpose of the Food Act. It was not even pleaded that the Khesari dal was not for human consumption. There is, therefore, clear violation of Rule 44A of the Prevention of Food Adulteration Rules read with the Assam Government Notification No. MPH 332/61/152 dated 10th. March, 1966. The conviction of the accused-petitioner under Sec. 16(l)(a (ii) read with Sec. 7(v) of the Food Act, therefore, suffered from no infirmity and both the Courts below have rightly convicted him.

(3.) Being under the predicament, Mr. K. Sarma, the learned Counsel for the petitioner submits that the accused was a boy of about 19 years and at the time of the occurrence the provisions of the probation of Offenders Act was applicable to him and he ought to have been released on probation of good conduct under Sec. 6 of that Act. Mr. Sarma points out that the petitioner was already given a lenient punishment of 3 months R.l. and a fine of Rs. 500.00 under the proviso, and in consideration of his age. He, however, submits that in a similar case reported in 1979 (I) FAC 195 Sitaram Laxminarayan Agarwal Vs. State of Maharashtra, where the appellant No. 2 appeared to be of 19 years of age and he merely happened to be present in the shop accidentally as his father had gone to some other place, and he sold the sample to the Food Inspector, the Supreme Court observed that if their Lordships sent him back to jail, he was likely to become a hardened criminal and that the recent policy of penology was to reform criminal rather than ' punish them; and accordingly their Lordships while upholding the conviction suspended the sentence and released him on his executing a personal bond of Rs. 2,000.00 to maintain good behaviour for a period of two years, failing which, he would be called upon to serve the sentence imposed on him. The learned Public prosecutor fairly says that he is equally bound by the ruling of their Lordships of the Supreme Court.