NIRANJAN KUMAR AGARWALA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner was convicted and sentenced to undergo R.I. for 6 (six) months and to pay a fine of Rs. 1,000/- in default to suffer another period of 1 month's R.I. under Section 7 read with Section 16 of the Prevention of Food Adulteration Act vide judgment and order dated 16.3.99 rendered by the learned Judicial Magistrate 1st Class, Guwahati in Case No. 514 C/94. THE appeal preferred by him, being Criminal Appeal No. 3 /99, was dismissed by the learned Ad-hoc Additional Sessions Judge, Kamrup, Guwahati vide judgment dated 31.12.03 affirming the said conviction and sentence. Hence, the petitioner has filed the present petition challenging the aforesaid conviction and sentence.

(2.) SHORTLY stated, the prosecution case is that one Shri Kamini Kanta Barman, Food Inspector (Senior), Kamrup, Guwahati visited the grocery shop (Shri Santi Store) situated at Kumarpara,Guwahati on 8.2.94.The accused Shri Niranjan Kumar Agarwal , the sole proprietor of the said shop, was present at the shop at that time. The Food Inspector inspected the articles of food kept at the shop for sale. He, disclosing his identity as Food Inspector, took samples of "Moong Dal" on payment of price thereof after duly serving notice in Form No. VI. The sample was taken in presence of one Shri Satin Bharali, an office peon (PW-2). The Food Inspector packed and sealed the samples after complying with the requirements under the provision of Food Adulteration Act and Rules. One part of the samples drawn along with necessary memorandum was sent to the Public Analyst, Govt. of Assam and the other two parts to the Local Health Authority. The Public Analyst after analysing the samples so received, submitted the report with opinion that the sample of "Moong Dal" was " artificially coloured with non permitted coal tar " colour metanil yellow and hence was adulterated". The Food Inspector obtained necessary leave from the higher authority i.e. Local Health Authority and filed complaint before the learned C.J.M, Kamrup, Guwahati who, on consideration of materials on record, framed charge under Section 16 read with Section 7 of the Act against the petitioner. He pleaded not guilty.The prosecution examined 2 witnesses and exhibited as many as 14 documents to prove its case. The petitioner,after being examined by the learned trial court under Section 313 Cr.P.C. was given chance to adduce his evidence. He denied all the incriminating evidence on record against him and examined himself only as defence witness. On conclusion of trial, the learned Court convicted and sentenced the petitioner which was affirmed by the learned Appellate court below as stated earlier.

(3.) THE second limb of submission is that the learned courts below erred in law in appreciating the evidence of the petitioner who examined himself as DW-1 that he purchased the "Moong Dal" from M/S B.N.Traders,Jail Road,Guwahati in support of which the petitioner produced Ext. Ka, Cash Memo dated 6.2.94, in compliance to the provision under Section 19(2) of the Act and he did not adulterate the same in his shop and in coming to a wrong finding that the said Exhibit Ka (Cash Memo) was not produced till 26.2.97 i.e. the date of deposition, on misconception of law and that the same is required to be produced by the petitioner before recording the evidence.