Surendra Prasad Gupta vs State of West Bengal

Asim Kumar Mondal, J.—The present revisional application has been filed by the petitioner challenging the order dated October 9th, 2013 passed by the learned Municipal Magistrate, 4th Court at Kolkata in connection with the case No. 110/1994 thereby rejecting the petition for time and issuance of warrant of arrest against him. The brief fact of the case may be narrated here is that the opposite party No. 2 the Food Inspector, Kolkata Municipal Corporation inspected the shop of the petitioner and found some spices (packets of chili powder) were stored and export for sale. The opposite party No. 2 collected the sample in presence of witnesses and after observing all formalities and thereafter sent the articles to the public analyst. On receiving the report through the legal health authority, the Food Inspector placed the report to the Chief Municipal Health Officer, Calcutta Municipal Corporation who in writing permitted to initiate a case against the present petitioner. Accordingly, complaint was lodged which was registered as 11D of 1994 under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The case ended in conviction of the petitioner.

The petitioner challenged the said order of conviction before Appeal Court which was registered as Criminal Appeal No. 36 of 2002 before learned Chief Judge, City Sessions Court, Kolkata. Learned Sessions Judge, 9th, First Track Court dealt with the said appeal and was pleased to uphold the order of conviction.

Being aggrieved by and dissatisfied with the said judgment and order of learned Sessions Judge, First Track, 9th Court Kolkata the present revisional application has been preferred on the grounds that learned Lower Appellate Court without considering the facts and circumstances of the case has been pleased to affirm the order of conviction it cannot stand in the eye of law and is liable to be set aside.

Mr. Debasish Roy with Mr. Angshuman Chakraborty appears on behalf of the petitioner. Mr. Roy submits and argued that both the court below failed to consider that the Food Inspector/complainant did not follow the proper procedure and collection of sample of chili power as provided in Section 11(1)(b) of the Act and sending the same to the public analyst as such the judgment of conviction and the sentence cannot stand in the eye of the law. It is further submitted by Mr. Roy that both the Court below failed-to consider that the Food Inspector did not take the representative sample which is mandatory as per law. Learned Court below ought not to lie the evidence of Food Inspector of the complainant when there is/was discrepancies in his evidence and documents produced by him as such on this score order of conviction and sentence cannot stand in the eye of law. Mr. Roy also disputed about the service of notice under Section 13(2) of the Prevention of Food Adulteration Act. It is also submitted that learned Court has failed to appreciate that the petitioner is not a manufacturer of double star brand chili power and he has produced the memos of purchase of the same from a concerned. So, he is protected under Section 19(2) of the Prevention of Food Adulteration Act, 1956. It is also submitted that learned Lower Appellate Court failed to appreciate that the trial has been vitiated due to non compliance of several mandatory provisions of law as laid down in the Prevention of Food Adulteration Act and Rules.

Mr. Roy finally submits relying upon a reported decision of a Co-ordinate Bench of this High Court reported at 2010 (2) CHN (Cal) 694 that no criminal appeal can be dismissed in default it should be decided on merit. It is the duty of the Appellate Court to dispose of the appeal by cross-cheque a reasoning that the evidence of record with a view to specify himself that the reasoning and findings recorded by the Trial Court are consistent with the materials on record. Learned Counsel appearing on behalf of the Kolkata Municipal Corporation supports the judgment of the learned Trial Court as well as learned Lower Appellate Court and submits that there is nothing to interfere into the judgment impugned by this High Court.

In the instant revisional application so far I understand that the petitioner has challenged the legality and'' propriety of the judgment passed by learned District and Sessions Judge, 9th First Track Court, Kolkata in Criminal Appeal No. 36 of 2002. Learned Judge in the said appeal has observed that neither the appellant nor the respondents, however appeared before the Court for hearing of the said appeal. Lastly on 20th June, 2006, the appellant filed a petition for adjournment but none move the said petition. Under such circumstances learned Lower Appellate Court proceeded with the hearing of the appeal holding that the said Court had left no other alternative but to fix a date for disposal of the appeal on merit.

Learned Lower Appellate Court after careful perusal of the impugned judgment and the evidence on record of the Court of learned Magistrate has opined that learned Magistrate has properly dealt with the evidence on record and discussing on all the material points that have given before him on the way of adjudication. He held the accused guilty for committing offence under Section 16(1)(a)(i) of said Act. So, learned Lower Appellate Court did not find any reason to interfere with the findings of the learned Magistrate.

As a result learned lower Appellate Court did not find any merit in the said appeal and same was dismissed on contest.

On careful perusal of the judgment arid order impugned it appears to me that in reality the petitioner herein did not get opportunity of being heard by the learned Lower Appellate Court, though the judgment has been pronounced on contest. Under such circumstances the judgment and order passed by the learned Lower Appellate Court cannot be said to have been decided on contest. So, the principles as laid down in a reported decision as referred above by the learned Counsel Mr. Roy will apply in the present revisional application. I also could not find any such observations or findings of the learned. Lower Appellate Court from which it can be said that the lower Appellate Court has disposed of the appeal by cross checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning and finding recorded by the Trial Court are consistent with the materials on record.

Under such circumstances, I am of the view that the impugned order and judgment of the appeal thus not in accordance with law and same is liable to be set aside. Thus, the revisional application is allowed without cost. The impugned judgment and appeal passed by learned District and Sessions Judge, 9th First Track Court, Kolkata in Criminal Appeal No. 36 of 2002 is hereby set aside. The appeal is remanded back to the Appellate Court for disposal of the same on merit in accordance with law after giving the opportunities to both of the parties of being heard. The Appellate Court is directed to dispose of the appeal as early as possible preferably within a period of three months from the date of communication of the order with notice to the respondents. The petitioner herein is directed to appear before the learned Lower Appellate Court and making all necessary arguments for pursuing the appeal otherwise the Trial Court shall have the liberty to proceed with the appeal as per law and procedure. There shall be an order of stay of order and judgment of Learned Trial Court till the disposal of appeal by the learned Lower Appellate Court. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.