SIMANLAL AGARWALLA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This revision is directed against the order of conviction and sentence dated 15-11-74, passed by the learned Sessions Judge, Jorhat, in Criminal Appeal No. 12(2) of 1974, confirming the conviction of the accused petitioner under section 16(1) read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act), with modification of the sentence. The trial Court sentenced the accused petitioner to suffer rigorous imprisonment for 6 months and also to pay a fine of Rs. 2,000 in default, rigorous imprisonment for 4 months more. The learned Sessions Judge reduced the sentence to rigorous imprisonment for 3 months and a fine of Rs. 1,000, and in default to 3 months further rigorous imprisonment.

(2.) The petitioner is a sole proprietor of the firm M/s. Mangilal Simanlal carrying on business at ward No. 2 of Sibsagar Municipality, Sibsagar. On 23-6-70, the Urban Health Officer of the Municipal Board, Sibsagar, who was the Food Inspector, visited the firm of M/s. Mangilal Simanlal and purchased three bottles of Shymali Pure Ghee, after conforming to the formalities enjoined by the Act and the Rules framed there under. The Food Inspector sent one bottle so purchased to the Public Analyst, Assam, Shillong, for analysis. Ext. 3 dated 22-8-70 is the report of the Analyst. The report showed that the sample of ghee was adulterated, not being in conformity with the standard prescribed by Rule A.11.14 read with Rule 44(c) of the Prevention of Food Adulteration Rules, 1955. Moreover, vanaspati, an article foreign ghee, was found present in the sample. After obtaining the requisite sanction of the authority, a complaint was filed on 4-8-71 for prosecution of the accused petitioner under section 16(1) read with section 7 of the Act. As shown by the order sheet, the accused appeared on 18-9-71 and 20-10-71; he was given a copy of the relevant documents. The accused never applied to the Court under section 13(2) of the Act for sending the sample of the ghee as mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of sub-section (1) of section 11 to the Director of Central Food Laboratory for analysis and a certificate. The Sub- Divisional Judicial Magistrate, Sibsagar, found the accused guilty of the offence and convicted and sentenced him as aforesaid. The appeal to the learned Sessions Judge was also unsuccessful.Hence the revision.

(3.) The case was originally placed before the learned Single Judge, B. N. Sarma, J. The main point urged on behalf of the accused petitioner before the learned Single Judge was that Rule 9(j), as inserted by Government Notification No. G.S.R. 1533 dated 8-7-68, is mandatory, non-observance of which rendered the proceeding under the Act void, relying on the decision of the Single Bench of this Court (Lahiri J.) rendered on 14-12-77 in Sukhendu Bhowmik v. The State. The learned Single Judge, B. N. Sarma. J., by an order passed on 29-3-79 referred the case to a larger Bench for reconsideration the decision of the learned Single Judge, Lahiri, J., as the Advocate General, Assam, serious contended that that decision required reconsideration. The case was referred to a Division Bench, and this is how the case came up before us.