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Baidya Nath Sah v. State Of Assam .
Summary of Legal Opinion — B.N. Sharma, J.
Factual and Procedural Background
The petitioner, Baidya Nath Sah, a dealer in foodstuff at Panigaon within Nowgong Municipality, was convicted by the Chief Judicial Magistrate, Nowgong under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment (R.I.) for six months and to pay a fine of Rs. 1,000/-, default R.I. for two months. The Sessions Judge, Nowgong affirmed the conviction and sentence. The petitioner filed the present revision petition before the court presided over by B.N. Sharma, J.
The prosecution case was that on 5-6-1971 Dr. M.D. Sadullah (P.W.1), Urban Health Officer of Nowgong Municipality, took a 375 ml sample of mustard oil from the petitioner’s shop following formalities; a portion was sent to the Public Analyst, Assam, who reported adulteration with variations from prescribed standards in B.R.R., saponification value and iodine value, and trace of linseed oil. After obtaining sanction from the Chairman, Nowgong Municipality, the Health Officer filed a complaint and the prosecution examined three witnesses. The petitioner did not dispute that a sample was taken but contested compliance with certain statutory provisions and rules (notably Section 10(7) of the Act and Rule 14 of the Rules).
Legal Issues Presented
- Whether non-compliance with Section 10(7) of the Prevention of Food Adulteration Act—specifically taking a sample without an independent witness present—mandates acquittal of the accused.
- Whether non-observance of Rule 14 of the Rules (regarding use of clean and dry bottles/containers for samples) requires acquittal where prosecution did not lead specific evidence about the container.
- Whether, notwithstanding conviction, the petitioner is entitled to lenient treatment under the proviso to Section 16(1) of the Act (as it then stood) because the sample fell under sub-clause (1) of clause (i) of Section 2 of the Act.
Arguments of the Parties
Petitioner’s Arguments
- The Health Officer (P.W.1) did not comply with Section 10(7) because no independent witness was present when the sample was taken; P.W.2 and P.W.3 testified they arrived after the sample was taken and did not see who took it.
- Rule 14 of the Rules — which the petitioner contended was mandatory — was not complied with because the prosecution did not lead evidence that the bottle was clean and dry; therefore the evidence should be treated as tainted and the petitioner entitled to acquittal. The petitioner relied on several authorities to support this duty on the prosecution (B.A. Sawant v. State; Lachhman Dass v. State of Punjab; Sadhu Singh v. State; Ultadanga Oil Mill v. Corporation of Calcutta).
- Even if convicted, the petitioner contended that the offence fell within the proviso to Section 16(1) as the sample failed to conform to prescribed standards and thus should attract lenient treatment under the statutory scheme.
Respondent’s (Public Prosecutor’s) Arguments
- Non-compliance with Section 10(7) does not automatically entitle an accused to acquittal; courts have adopted a cautionary approach but there is no strict legal bar to conviction on the sole testimony of a Food Inspector (relying on Prem Ballab v. State (Delhi Admn.)). Prejudice must be demonstrated.
- Acts done by public officials (such as taking samples) attract the presumption of regularity under Section 114, Illustration (e), of the Evidence Act; this presumption is rebuttable but no rebutting evidence or suggestion was placed on record in this case.
- Reliance on decisions such as Champalal v. State of Rajasthan and the Supreme Court decision in Gopal Das Baheti v. State of Assam to show that where no evidence or plea is raised in trial courts about non-compliance (or no evidence is produced), the challenge may fail.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prem Ballab v. State (Delhi Admn.), 1976 (II) FAC 53 | That there is no rule of law preventing conviction based solely on the testimony of a Food Inspector; insistence on independent corroboration is a rule of prudence, not law, and prejudice must be shown. | The court relied on this decision to hold that non-observance of Section 10(7) does not automatically entitle the accused to acquittal unless prejudice is demonstrated; applied to find no prejudice here since the petitioner himself put the sample into the bottle and made no allegation of foul play in his Section 313 statement. |
| B.A. Sawant v. State, 1974 FAC 304; Lachhman Dass v. State of Punjab, 1972 FAC 752; Sadhu Singh v. State, 1975 (I) FAC 295; Ultadanga Oil Mill v. Corporation of Calcutta, 1963 (2) Cri. LJ 448 | That Rule 14 imposes a duty on the prosecution to use and prove the use of clean and dry bottles/containers and to lead evidence to that effect. | These cases were relied on by the petitioner to argue that the prosecution must lead evidence about the cleanliness/dryness of containers. The court noted these authorities but ultimately did not follow them in the facts of this case because the plea was not raised below and no suggestion was made to witnesses. |
| Champalal v. State of Rajasthan, (1977) 1 FAC 27 | Supports the view that in absence of any plea or rebutting evidence, courts may presume official acts were regularly done; used to counter arguments about Rule 14 non-compliance. | The court expressed respectful agreement with this decision and relied on it to support the proposition that the absence of a plea below and lack of rebutting evidence undermines the contention that Rule 14 was not complied with. |
| Gopal Das Baheti v. State of Assam, Cri. Appl. No. 4 of 1961 (decided 2 May 1962); reported in authorities cited | Demonstrates that if no evidence exists that samples were improperly packed and if the point was not raised in earlier courts, the challenge may fail; supports presumption of regularity. | The court relied on the Supreme Court's reasoning that, where there is no evidence and the plea was not taken in lower courts, the contention of improper packing or breach of rules cannot succeed. This supported rejecting the petitioner's Rule 14 challenge. |
Court's Reasoning and Analysis
The court proceeded in a stepwise fashion addressing each of the principal contentions pressed by the petitioner:
- Section 10(7) non-compliance: The court noted the evidence that P.W.2 and P.W.3 arrived after the sample was taken and did not see who took it, thereby supporting the factual basis of the petitioner’s contention. However, relying on the Supreme Court decision in Prem Ballab, the court observed that the requirement of an independent witness is a rule of prudence rather than a rigid rule of law. The decisive question is whether prejudice resulted from the absence of an independent witness. The court found no prejudice: the petitioner himself put the sample into the bottle, and he never suggested in cross-examination or in his Section 313 Cr.P.C. statement that there had been any foul play or material defect in the sampling process. Consequently, non-compliance with Section 10(7) did not entitle the petitioner to acquittal.
- Compliance with Rule 14: The petitioner contended that Rule 14 (clean and dry bottles) is mandatory and that prosecution should have led evidence about the condition of the bottle. The court observed that the petitioner did not raise this matter in the trial court nor did he suggest at trial or in his Section 313 statement that the bottle was unclean or wet. The Public Prosecutor argued for a presumption of regularity for official acts under Section 114 Illustration (e) of the Evidence Act, and relied on Champalal and Gopal Das Baheti to support the view that, absent rebutting evidence or a plea in earlier courts, the presumption stands. The court agreed with those authorities and declined to hold Rule 14 was breached on the present record where no such suggestion was made below and no rebutting evidence was produced.
- Application of precedents: The court distinguished and declined to follow the line of authority relied on by the petitioner (B.A. Sawant and others) in the circumstances of this case, because those authorities impose a requirement to lead evidence about containers where the point was taken; here, the point was not taken in trial and the petitioner had not suggested any defect to witnesses nor in his Section 313 statement. Conversely, the court found the reasoning in Champalal and Gopal Das Baheti (presumption of regularity when no rebuttal or plea is made) applicable and persuasive.
- Sentencing and proviso to Section 16(1): The court accepted that the matter fell within sub-clause (1) of clause (i) of Section 2 (as conceded by the Public Prosecutor), but agreed with the prosecutor that mere classification under that sub-clause does not automatically mandate leniency; there must be special reasons. The court observed the variations in analysis did not appear to be substantial. It noted that the petitioner had applied to summon the Public Analyst at State expense (rejected), which indicated the petitioner’s poverty, and that the petitioner had already served 20 days of imprisonment. Balancing these factors, the court exercised its discretion to mitigate the imprisonment sentence to the period already served but retained the fine.
Holding and Implications
Core Ruling: REVISION DISMISSED.
The court dismissed the revision petition while modifying the sentence. The imprisonment term of R.I. for six months was reduced to the period already served by the petitioner (20 days served at the time); the fine of Rs. 1,000/- imposed by the Courts below was maintained. The conviction as recorded by the Trial Court and affirmed by the Sessions Judge was left intact.
Implications: The decision emphasizes that
- Non-observance of Section 10(7) does not automatically require acquittal unless prejudice is demonstrated; the requirement for an independent witness is a cautionary rule of prudence rather than an absolute rule of law (following Prem Ballab).
- Challenges based on non-compliance with procedural rules such as Rule 14 will be difficult to sustain if the accused did not raise the point in trial or in their Section 313 statement and if no rebutting evidence is produced; courts may apply the presumption of regularity for official acts under Section 114 Evidence Act unless the presumption is rebutted (as reflected in Champalal and Gopal Das Baheti).
- This opinion did not create or announce a new precedent; it applied existing authorities and factual evaluation to refuse acquittal but exercised sentencing discretion to reduce imprisonment to the period already served on account of the petitioner’s circumstances.
Disposition
The revision petition is dismissed with modification of sentence: imprisonment reduced to the period already served; fine of Rs. 1,000/- retained.
B.N Sharma, J.:— The petitioner Baidya Nath Sah, a dealer in foodstuff at Panigaon within Nowgong Municipality was convicted by the Chief Judicial Magistrate, Nowgong under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to R.I for 6 months and also to pay a fine of Rs. 1000/- in default to R.I for 2 months. In appeal the Sessions Judge, Nowgong having affirmed the conviction and sentence of the petitioner, petitioner has come up with the present revision petition.
2. The prosecution case, in brief, was that on 5-6-1971 Dr. M.D Sadullah (P.W 1) who is the Urban Health Officer of Nowgong Municipality took 375 ml. mustard oil as sample from the shop of the petitioner by observing the necessary formalities. A part of the sample was sent to the Public Analyst. Assam, for examination. The Public Analyst submitted a report after examination of the sample that it was adulterated as the sample was found to vary from the prescribed standard in regard to three ingredients, namely, B.R.R, saponification value and iodine value. Besides, trace of linseed oil was also found in the sample. On receipt of the report the Health Officer (P.W 1), after obtaining sanction from the Chairman, Nowgong Municipality, filed a complaint before the Magistrate against the petitioner under the aforementioned section. The prosecution examined three witnesses, including the Health Officer who took the sample and on their evidence a charge under the aforementioned section was framed against the petitioner to which he pleaded not guilty. The petitioner did not dispute the fact that on 5-6-1971 P.W 1 took sample of mustard oil from his shop. He resisted the case on several grounds, alleging contravention of various provisions of the Act and of the Rules made thereunder. We are not concerned with all those grounds in the present revision as Mr. A.C Bora, the learned counsel for the petitioner has urged only two grounds before me, namely (1) that the provisions of S. 10(7) of the Act and Rule 14 of the Rules were not complied with in taking the sample of the mustard oil.
3. The trial Court as well as the appellate Court repelled all the contentions of the petitioner and found him to be guilty of the offence he was charged with.
4. The first contention of Mr. Bora, the learned counsel for the petitioner before me is that the Health Officer (P.W J) did not observe the provisions of S. 10(7) of the Act inasmuch as he did not take the sample in presence of any independent witness. Although two witnesses, namely P.W 2 Dehiram Saikh and P.W 3 Fazal Ali were said to be present at the time of taking the sample, Mr. Bora has drawn my attention to their evidence that they actually came after the sample was taken and they did not see who took the sample and wherefrom the sample was taken. That being so Mr. Bora has contended that the provisions of Section 10(7) were not complied with and for that reason the petitioner is entitled to get acquittal. The effect of non-observance of the provisions of Section 10(7) came up for consideration before the Supreme Court in Prem Ballab v. State (Delhi Admn.), 1976 (II) FAC 53. In that case Bhagwati J., speaking for the Court, observed as below:
“There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law: if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses. The conviction of the appellants cannot, therefore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar.”
5. It is thus seen from the above decision of the Supreme Court that an accused in a Food Adulteration case is not entitled to get acquittal merely because the provisions of Section 10(7) of the Act are not complied with, unless it is shown that some prejudice has been caused to him. The legislature has enacted this provision to guard against any malpractice by a Food Inspector at the time of taking sample. In the instant case it is in evidence that the petitioner himself put the sample oil into the bottle. It was not suggested by him to any prosecution witness nor did he say in his statement under Section 313, Criminal P.C that there was any material defect or foul play in taking the sample. In these circumstances there is no scope to hold that due to absence of any witness at the time, when the sample was actually taken, any prejudice has been caused to the petitioner to entitle him to get an acquittal on that score.
6. The next contention of Mr. Bora is that the provisions of Rule 14 of the Rules which are mandatory according to him, were not observed in the present case and therefore, the petitioner should have been acquitted by the Courts below. In the trial court it appears, the petitioner did not take this ground. It was not suggested to P.W 1 or to any of the P. Ws. that the bottle in which the sample was taken was not clean or that it was not dry. The petitioner who himself poured the sample oil into the bottle, did not mention in his statement under Section 313, Criminal P.C that the bottle was not clean or dry as required under Rule 14.
7. Mr. Bora has submitted that whether or not the accused took any such plea in his defence, it was obligatory on the part of the prosecution to lead evidence to show that the provisions of Rule 14, which are ve???y material, were strictly observed. In support of this contention he relied on the decision of the Bombay High Court in B.A Sawant v. State, 1974 FAC 304; Lachhman Dass v. State of Punjab, 1972 FAC 752; Sadhu Singh v. State, 1975 (I) FAC 295. Ultadanga Oil Mill v. Corporation of Calcutta, 1963 (2) Cri. LJ 448. In all these cases it was laid down that Rule 14 casts a duty upon the prosecution not only to comply with the mandatory provisions of law for using clean and dry bottles for storing the sample but also to lead evidence at the trial that the bottles used were clean and dry. As in the instant case no such evidence was led by the prosecution, Mr. Bora submitted, the petitioner is entitled to acquittal.
8. Mr. S.C Das, the learned Public Prosecutor has vehemently resisted this contention. According to Mr. Das, taking of sample by Food Inspector under the Act is an official act and that being to under Section 114 of the Evidence Act, Illustration (e), it is to be presumed that it was regularly done, that means done in accordance with the Rules. Of course, this presumption is rebuttable, but as in the present case there is not even a suggestion, not to speak of any rebutting evidence, Mr. Das submits that the Court should presume that all formalities required by law and the Rules were observed by the Food Inspector while taking the sample. In support of this contention he relied on a decision of the Rajasthan High Court in Champalal v. State of Rajasthan, (1977) 1 FAC 27 and also on a decision of the Supreme Court in Gopal Das Baheti v. State of Assam, Cri. Appl. No. 4 of 1961 decided on 2nd day of May, 1962; reported in “Supreme Court on P.F.A and Drugs Cases 1951-1977” at page 257 (1976 (11) FAC old judgments 1). It was submitted in that case by the counsel for the appellant that the Health Officer in putting the sample of tea leaves in “cloth sacks” violated (he provisions of Rules 14, 15 and 16 framed under the P.F.A Act and that on account of exposure to moisture because of defective packing the samples must have deteriorated, and if they did not conform, on analysis, to the prescribed standard, the appellant could not be held guilty of the offence charged. The Supreme Court repelled this contention with the following observation:—
“There is no evidence on the record that the samples were not put in any suitable container…sufficiently tight to prevent entrance of moisture”. The plea that the samples were not put into containers as required by the rules was never raised in the trial court nor even in the Sessions Court. It is true that in Ext. 2 which is the receipt given by the appellant to the Health Officer, it is stated that the sample was in a “sealed sack” but there is nothing to show that this sealed sack was not put in a container as required by the rules. The Sessions Judge has found that the sample of tea leaves could not have deteriorated in the interval between the date on which it was attached and the date on which it was analysed.”
9. It is clear from the above decision that there was no evidence from the side of the prosecution to prove that the provisions of Rules 14 to 16 of the Rules were duly complied with. Even then the Supreme Court rejected the above contention of the appellant on the ground that no such plea was taken by the petitioner in the Courts below. In view of this decision of ths Supreme Court I am in respectful agreement with the view taken by the Rajasthan High Court in Champalal v. State of Rajasthan (supra) which has been relied on by the learned Public Prosecutor and with great respect I am unable to agree with the view taken in the cases relied on by the learned counsel for the petitioner, as mentioned above.
10. In the instant case, as I have already observed, the petitioner did not even suggest to any of the PWs. nor did he mention in his statement under Section 313, that the bottle in which the sample was taken was not clean or dry, as required under R. 14. That being so, it is difficult for this Court to hold, at this stage, that the provisions of Rule 14 were not complied with, as alleged.
11. The last contention of Mr. Bora is that even if the conviction of the petitioner is upheld, the case is covered by the proviso to Section 16(1) of the Act, as it then stood, inasmuch as the sample of mustard oil was found to be adulterated as it did not conform to the prescribed standard and thus bringing the case under sub-clause (I) of clause (i) of Section 2 of Act. Mr. S.C Das the learned Public Prosecutor does not dispute that the case of the petitioner comes under sub-clause (1) of clause (i) of Section 2 of the Act, but he submits that the petitioner is not entitled to get a lenient treatment simply because it is covered by sub-clause (1) unless there is some special reason to deal with him leniently. According to him in the instant case there is no such extenuating circumstance to deal with the petitioner leniently. The variations found in the report of the Public Analyst from the prescribed standard do not appear to be great. It appears from the record that the petitioner filed an application before the Court to summon the Public Analyst for cross-examination at the cost of the State due to his inability to bear the expenses and this application was rejected by the Court. This shows that the petitioner is a poor shop keeper. It is also seen that the petitioner has already served 20 days of his sentence of imprisonment. In these circumstances I feel that it will meet the ends of justice if the sentence of imprisonment is reduced to the period already served by him. In this view of the case I reduce the sentence of imprisonment from R.I for six months to the period already served by him; but 1 maintain the fine of Rs. 1000/- imposed by the learned Court below. With this modification of the sentence, the revision petition is dismissed.
12. Revision dismissed.
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