BANOWARILAL Vs. STATE OF ASSAM

JUDGEMENT

(1.) Who is to be blamed if food-adulterations escape prosecution or conviction? The law or the investigator/prosecutor? This, is the core question in issue in this case involving interpretation of some of the tricky, though not tanned, provisions of the Prevention of Food Adulteration Act, 1954, for short, the Act.

(2.) However, I may first deal with two peripheral issues which obstruct my entry upon the core question. According to learned Public Prosecutor, Assam, Mr. S.R. Bhattacharjee, I must not hear this application because it is beyond my jurisdictional competence. His further submission is that the application is premature. Both these aspects are considered in a recent decision of their Lordships of the Supreme Court in AIR 1983 SC 67, (Delhi Municipality v. Ram Kishan) and according to me both objections have no merit. It is, however, necessary for me to state briefly the facts leading to this application to show that these objections are futile and also to answer the core question.

(3.) On 7-9-1978 the complainant, Area Food Inspector, Tezpur, found one Hanuman Singh "a salesman and carrier" of M/s B.G. Rice and Oil Mills, Narayanpur, selling mustard oil from a truck which was parked in front of the shop of M/s. Paresh Chandra Narayan Chandri Saha at Gobardhan Road in Tezpur town. He found the said Hanuman Singh near the truck and selling mustard oil in tins to customers who introduced himself as the "sales-man and the carrier agent" of the said M/S. B.G. Rice and Oil Mills. The complainant collected sample of mustard oil after complying with the formalities enjoined by law by giving an intimation in Form VI to the vendor Hanuman Singh. In the complaint it is also stated that the said Hanuman Singh disclosed the name of the petitioner (Banowarilal Tibrewala) as one of the partners of the said M/s. B.G. Rice and Oil Mills. The complaint was filed on 28-10-1978 in the court of the Chief Judicial Magistrate, Darrang, Tezpur, wherein not only Hanuman Singh hut M/s. B.G. Rice and Oil Mills was also arrayed as an accused along with "all the partners" (8 in number), including the petitioner and 3 ladies. Along with the complaint certain documents were filed with a list. The acknowledgment of Public Analyst dated 14-9-1978 and another document which was called "Declaration by vendor Sri Hanuman Singh dt. 7-8-1978" besides the "sanction" and some other papers, which were 11 in number, figured in the list. On 22-12-1978 the trial court issued summons to all the accused persons named in the complaint petition and in the course of trial for the purpose of framing charges against the accused evidence was recorded. The complainant examined himself and also proved the documents filed with the complaint. The paper entitled "Declaration by vendor" was proved as Ext.2. Of the other 2 witnesses who were examined by the trial court P.W.3 was the District Food Inspector, Darrang, who corroborated the complainant as respects formalities observed in collecting the sample and also proved his signature on certain formal documents which were used in collecting the sample. P.W.2 was also one of the witnesses of the prosecution and he proved his signature on the relevant papers. On a consideration of the evidence and other materials on record the learned Chief Judicial Magistrate framed charge against the petitioner as also against Hanuman Singh and M/s. B.G. Rice and Oil Mills under S.16(1)(a) read with S.17(1) of the Act by his order passed on 20-9-1979 in C.R. Case No.925 of 1978. He discharged the other 7 accused on the ground that there was no evidence against them to show that they were "partners in charge and responsible for the conduct of the business when the offence was committed." Against the accused he found that Hanuman Singh had given out his name and, therefore, there was material against him. It is against this order that this court is approached for quashing the charge against the petitioner. In this connection I may refer to Ext.2 which apparently persuaded the court below to hold that the petitioner was liable to be tried. It is a cyclostyled form addressed to District/Area Food Inspector, Tezpur, which is filled in ink; its relevant entries may be summarised as follows :-