DANMAL PILLANIA AND ANOTHER Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is a revision against the judgment and order dated 7.4.82, passed by the learned Additional Sessions Judge, Sibsagar, Jorhat, dismissing the petitioners' appeal against the conviction and sentence, by judgment and order dated 16-7-79, passed by the learned Chief Judicial Magistrate, Sibsagar, Jorhat.

(2.) The facts giving rise to the revision are that, the petitioner had a grocery shop at Teok. On 7-6-78, Sri N.C. Goswami, Area Food Inspector purchased and collected sample of mustard oil, which was for sale in the said shop, from Rekharam Dhakharia, saleman-cum-manager of the shop, at the time. The mustard oil so taken, was sent for analysis. It was found that the sample did not conform to the standard prescribed under rules. After obtaining necessary sanction the petitioner and the aforesaid salesman were prosecuted. Accused persons pleaded not guilty, and stated that the sample was taken from "sealed-tins" which had been purchased from the manufacturers M/s Suratram Khadaria and Sons, Dergaon, and that it was in the same condition as it was purchased. M/s Suratram Khadaria & Sons were also subsequently arrayed as accused. On consideration of the evidence produced, the learned Judicial Magistrate found that it was not proved by the accused that the mustard oil had been purchased from M/s Suratram Khadaria and Sons, who were acquitted. The petitioner and the salesman-cum-manager, Rekharam Dhakharia were convicted under section 16 of the Prevention of Food Adulteration Act hereinafter referred to as the 'Act' and each was sentenced to six months' rigorous imprisonment and also to pay a fine of Rs. 1000.00, in default 2 months' rigorous imprisonment. In appeal by the convicted persons, the learned Additional Sessions Judge held that the petitioners were rightly convicted and the petitioner's appeal was dismissed.

(3.) Aggrieved, the petitioners have come up in revision. Sri A.R. Barthakur, learned counsel for the petitioners, has submitted, that, firstly the sample of mustard oil taken, according to the public analyst's report, did not contain any foreign matter and the only ground on which it was held to have been adulterated, was the high 'saponification value' which was found to be 191.2 whereas according to the standard it should have not been more than 177-, which according to the learned counsel could have been due to natural causes, by storage, secondly, the sample had been taken from sealed-tins which the petitioner had brought from the manufacturer and hence for the quality of mustard oil, the petitioner could not be held liable, and lastly, that the petitioner was not proved to be the proprietor of the shop, wherefrom the sample of mustard oil said to have been adulterated had been taken, and accordingly, he has submitted that the petitioner's conviction and sentence cannot be justified, and should be set aside. Sri Barthakur, has cited Narayan Ch. Saha Vs. State of Assam, 1986 Crl. L.J. 1169 and has argued that if due to natural causes beyond the control of the petitioner, saponification value had increased, the petitioner could not be held liable. Smt. K. Deka, learned Public Prosecutor, on the other hand, has contended that the 'saponification value' had increased by 14.2 over the permissible standard limit, and accordingly, the sample of mustard oil was ''adulterated" and the petitioner who had, from his shop, sold the said mustard oil, must be liable, that it was not proved by the petitioner that the sealed tins bad been purchased from M/s. Suratram Khadaria and Sons, and that in any case the fact remains that the mustard oil had been seized from the petitioner's shop and accordingly the petitioner was liable, and lastly the petitioner was the proprietor and even assuming that he was not present at the time of sale, it could not be said that the petitioner was not liable as it was his shop from where the sample was taken and the salesman who had made the sale was the petitioner's servant and the petitioner was, therefore, squarely liable. Smt. Deka has cited, State of U.P. Vs. Gauri Shanker, 1973 Crl. LJ 910 (All) where it was held that mustard oil does not deteriorate by storage and it is used as a preservative. She has also cited Tezpur Municipal Board Vs. Mohanlal Tibriwal, 1977 Cri. LJ 1353 Sri Barthakur, for the petitioner has also cited the above authority.