APURBA PODDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) IN the offence report, which gave rise to CR Case No. 308c/2001 of the Court of learned Chief Judicial Magistrate, Kamrup, Guwahati, the case of the complainant, namely, Khagendra Nath Goswami, Food Inspector (Senior) was, in brief, thus : 29.11.1999, the complainant, accompanied by his office peon, visited the premises of M/s Bichitra Traders, situated at Fancy Bazar, Guwahati, and met there the accused -petitioner No. 1, namely, Apurba Podda, who disclosed his identity as Manager of the said business concern with the accused -petitioner No. 2, namely, Puspa Rani Poddar as the proprietress thereof. Suspecting the quality of the spice found kept stored for sale for human consumption, at the said premises, under the brand name 'Curry Power (Cook me Brand)', the complainant served a notice, in Form VI, to the accused -petitioner No. 1 in order to take sample of the said curry powder for analysis. The complainant, then, purchased 12 sealed packets of the said curry powder, containing 50 grams in each packet, for the purpose of analysis. In accordance with the provisions of the Prevention of Food Adulteration Act (in short, the 'PFA Act') and the Prevention of Food Adulteration Rules framed hereunder (hereinafter referred to AS 'PFA Rules'), the complainant divided the said 12 packets of curry powder into three parts, sealed the same and sent one such part of to the Public Analyst for analysis following the provisions of the PFA Rules. On analysis, the sample in question, was found adulterated. After obtaining the requisite sanction for prosecution of the accused -petitioners, the offence report was laid. However, at the time of collection of the said sample, the accused -petitioner No. 1 claimed that they had purchased the said curry powder from M/s Krishna Chandra Dutta (Spice) Ltd., 235, Maharishi Debendra Road, Calcutta -7, who were manufacturer of the said curry powder and produced Bill No. ST/1517 dated 15.9.1999, in support of their contention that they had purchased the said curry powder from M/s Krishna Chandra Dutta (Spice) Pvt. Ltd. Aforementioned. Since the identity of M/s Krishna Chandra Dutta (spice) Pvt. Ltd. had already been disclosed as the manufacturer of the said curry powder, the said manufacturer was impleaded as the accused No. 3 in the offence report aforementioned.

(2.) IN course of time, all the accused aforementioned appeared in the said case, and the learned Judicial Magistrate, 1st Class, Guwahati, who came in seisin of the case, fixed the case for recording evidence before charge. After recording the evidence of the Food Inspector and the said office peon as witnesses, the learned Court below vide order, dated 31.5.2003, declined to discharge the accused -petitioners and explained particulars of offences under Section 7/16/17 of the PFA Act to the accused -petitioners. All the accused persons pleaded not guilty thereto and claimed to be tried. It is this order, which stands impugned in the present revision by the vendor, namely, Apurba Podda and the Proprietress of the said business concern, namely, M/s Bichitra Traders aforementioned as the accused -petitioners Nos. 1 and 2 respectively.

(3.) MR . Bhattacharyya, learned senior counsel, submits that the two accused -petitioners purchased the said packets of curry powder from its manufacturer, namely, M/s Krishna Chandra Dutta (Spice) Ltd, aforementioned and the manufacturer, while selling the said curry powder, gave a warranty. The existence of this warranty, contends Mr. Bhattacharyya, and the face that the said packets of curry powder were sold to the complainant by the accused -petitioner No. 1, namely, Apurba Poddar in the same conditions in which the packets were purchased from the manufacturer thereof was not disputed and, hence, neither the vendor nor the proprietress of the said propreitory concern, namely, Puspa Rani Poddar (i.e. accused -petitioner No. 2) were liable for prosecution; but the learned Court below chose not to discharge the accused -petitioners and explained to them the particulars of offences under Sections 7/16/17 of the PEA Act. Having proceeded to try the case by adopting the warrant procedure, the learned Court below, submits Mr. Bhattacharyya, ought to have discharged the accused, for, no evidence existed on the record to convict the accused -petitioners even if the evidence would have been left unrubutted by the defence.