Munavvar Ali vs State Of U.P. & Another
2013 Latest Caselaw 5795 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 8
 
Case :- CRIMINAL REVISION No. - 80 of 2013
 
Revisionist :- Munavvar Ali
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- G.K. "Kannojia",Surendra Kumar Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Zaki Ullah Khan,J.

1. The instant revision has been preferred against the order of appellate court dated 08.02.2013 dismissing the appeal of the revisionist and confirming the order passed by trial court i.e. Additional Chief Judicial Magistrate-First, Court No.10, Faizabad sentencing the revisionist to undergo rigorous imprisonment under Section 7/16 of Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') for six months' together with a fine of Rs.1000/- and in default of payment of fine, the revisionist will have to undergo seven days' additional imprisonment. The sentences have been directed to run concurrently.

2. The brief facts giving rise to the revision are that on 25.02.2010 at about 12:45 hours the revisionist was checked while he was carrying Khoya (Milk Product) on the bicycle inside a basket; that when the revisionist was confronted by the food Inspector he informed that he was carrying 20 kg. Khoya to Rudauli for selling; that when demanded the selling licence of the year 2009-2010, he could not produce the same; that the Food Inspector was suspicious that the Khoya was adulterated and he purchased 750 gram Khoya on payment of Rs.75 as sample and he completed formalities at the spot but none was prepared to witness the incident; that after observing due formalities, he prepared three samples in a small bottle of the material so seized and on each bottle of sample he affixed the slip duly signed by the City Magistrate, Faizabad, he obtained the signature of the seller on each small bottle and prepared the site plan at the spot; that one of the sample was sent to public analyst at Lucknow and rest of the samples he deposited as required under the rules; that the chemical analyst found that the sample was short of fat content of the prescribed minimum limit of 30% for Khoya, and therefore, the sample was found to be adulterated and hence after securing sanction he filed a complaint before the court concerned and the court after examining the record and after recording evidence under Section 244 Cr.P.C. framed charges against the revisionist under section 7/16 of the Act; that the revisionist denied the charges before the trial court and claimed to be tried; that P.W.-1 Kumar Chitrasen and P.W.-2 Krishna Kumar Yadav were examined under section 246 Cr.P.C. and after recording the statement under section 313 Cr.P.C. the trial court was of the opinion that the sample was adulterated and accordingly convicted the revisionist under Section 7/16 of the Act; that against that order the revisionist preferred an appeal before the appellate court and the appellate court vide its order dated 08.02.2013 overruled the pleas taken by the revisionist during appeal and dismissed the appeal. Aggrieved by the aforesaid order, the instant revision has been preferred.

3. Heard learned counsel for the revisionist as well as learned A.G.A. at length and perused the record.

4. The instant revision involves the only question whether the sample which was found containing less milk fat content than the prescribed standard be treated as adulterated or not in view of Section 16 of the Act.

5. I have gone through the relevant record and provisions of the Act. Section 16(1)(a)(i) of the Act deals with such type of provisions. Section 16(1)(a) (i) says that any article of food which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority, whereas Section 2(ia) defines adulterated as under:-

"Adulterated:- an article of food shall be deemed to be adulterated:-

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;

(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;

(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) if the article has been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) the article consists wholly or, in part of any filthy putrid, rotten, decomposed or diseased animal or vegetable substance or is insect- infested or is otherwise unfit for human consumption;

(g) if the article is obtained from a diseased animal;

(h) if the article contains any poisonous or other ingredient which renders it injurious to health;

(i)if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]

(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) 8[ if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which renders it injurious to health;

(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:"

6. There is also a proviso added to this clause which says that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in qualities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Therefore, the intention behind the Act is that the articles seized should be in conformity with the provisions of the act and if standard is below to what has been provided then it shall be treated as adulterated. It does not matter much whether it is injurious to health or not. When specification has been provided for certain article then that food product must satisfy to that standard otherwise it will be treated as adulterated. The question is how this fact can be ascertained. Since this is a matter of evidence then that part of evidence shall be looked into. The sample was taken. The argument regarding the sample not having been taken in presence of witnesses has been discussed by the court below and the appellate court has discarded all the objections regarding public witnesses etc. The sample was taken and was sent to public analyst. The public analyst's report Ext. Ka 7 is on record which shows that butyrorefractometer reading of the extracted fat was 40°C-41.0 A-11.02.12. The public analyst reported that moisture was found to be 31.62%. Milk fat (on dry weight basis) was found 22.73% and the opinion of Public Analyst was that the milk fat content was less than the prescribed minimum limit of 30% for Khoya and in this way the public analyst found the sample to be adulterated within the meaning of Section 2(ia) of the Act. Since rest all the matter is factual and, therefore, the impugned orders do not need to be interfered with on finding of fact. The duty of the revisional court is only to look into the illegalities, if any, committed and whether there is any jurisdictional error or any other legal flaw in the matter. Two facts are established on record. One is that as per Public Analyst's report, Ext. Ka 7 the sample was less than the prescribed standard and was found to be adulterated. The argument that the public analyst has not mentioned that it is injurious to health is not relevant because when Act has provided that how the adulteration is to be examined then adulteration will be looked in the light of that standard. Therefore, as far as adulteration is concerned, the finding need not to be interfered with.

7. Learned counsel for the revisionist, however, during the arguments argued that the matter relates to small quantity of Khoya. The punishment is very harsh, therefore, the same may be reduced.

8. I have gone through the provisions of Section 16 of the Act which says that if a person carries adulterated food article, he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months' but which may extend to three years, and with fine which shall not be less than one thousand rupees. There is also proviso which provided that (i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or

(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section(1-A) of Section 23 or under clause (b) of sub-section (2) of section24,

The court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees.

9. As far as revisionist is concerned, the allegations are not covered under Section 6 of the Act which deals with sea customs and powers of Customs Officers. The only allegation against the revisionist is that he was found in possession of Khoya which was short of prescribed standard i.e. there was less milk fat content than the prescribed minimum limit of 30%. The milk fat was found 22.73% in the Khoya, found in possession of the revisionist.

10. Learned counsel for the revisionist further argued that the revisionist is well advanced in age i.e. 57 years old and he is the only bread earner of his family and if he is sent to jail for six months' his family will be without bread earner and will starve to death in his absence. Learned counsel, therefore, prayed that under the proviso he should be given certain leniency and his sentence be reduced to three months' in the light of the proviso. In the provision of Section 16 of the Act, it is discretion of the court that for adequate special reason to be mentioned in the judgment it may impose the sentence of imprisonment for a term which shall not be less than three months' i.e. discretion lies with the court to reduce the sentence to three months for the reason given by the court.

11. Learned counsel for the revisionist showed the reason i.e the revisionist is about 57 years of age and he is the only bread earner of his family and in view of the article which he was carrying he should be treated leniently because there was only short fall of 7% fat in the sample. That content should be 30% and instead of 30% it was having only 22.73%.

12. Therefore, in view of the circumstances, I am of the opinion that sentence be reduced to three months and conviction be read as three months rigorous imprisonment together with a fine of Rs.1000/- and in default of payment of fine the revisionist will have to undergo seven days' additional imprisonment. The appellate court order specifies that he has already deposited the fine, therefore, his sentence be reduced to three months' instead of six months'.

13. The revision is, therefore, dismissed with modification of sentence. The sentence is reduced from six months' to three months'. The conviction order be read as revisionist's sentence to three months' rigorous imprisonment under Section 7/16 of the Act together with a fine of Rs. 1000/-. Fine has already been deposited by him in the appellate court. He shall surrender before the court below within fifteen days and send to jail for serving out the sentence. His bail is cancelled. In case he does not surrender, the lower court shall issue non-bailable warrant against him and adopt the coercive .

14. Lower court record be sent back to the court concerned.

15. Registry of this Court is directed to send this order to the court concerned for compliance.

Order Date :-13.09.2013

akhilesh/-