Ram Das vs State Of U.P.
2015 Latest Caselaw 5553 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- CRIMINAL REVISION No. - 1737 of 1998
 
Revisionist :- Ram Das
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Shri Krishan Yadav, A.R. Dwivedi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Sudhir Agarwal,J.

1. The revisionist-accused has preferred this revision under Section 397/401 Cr.P.C. assailing the judgment dated 04.09.1998 passed by Sri L.C. Tripathi, First Additional Chief Judicial Magistrate, Banda convicting him under Section 16(1)(A)(1) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Act, 1954") and sentenced for rigorous imprisonment of one year and fine of Rs. 4,000/-. In case of non payment of fine the accused-revisionist is further sentenced for six months rigorous imprisonment. He has also assailed the judgment dated 22.09.1998 passed by Sri Awadh Bihari Shukla, District and Sessions Judge, Banda dismissing Criminal Appeal No. 22 of 1998 and confirming conviction and sentence by Trial Court, as detailed above.

2. The prosecution case was that Sri V.K. Gandhi, Food Inspector, Naraini, District Banda found accused, Ram Das selling milk on 01.06.1996 at around 11.00 am near Nawab Tonk, Banda, who told, when enquired, that he is selling Cow milk. Accused was carrying two canes on a cycle containing 20 liters of milk for sale at Banda City. The Food Inspector churned the milk and thereafter purchased 600 mililiter milk sample after paying Rs. 4.80, vide receipt (exhibit 2). This milk sample was divided and kept in three dry bottles in equal quantity and after adding 40% formalin (16 drops) the sample was sealed. The people who had collected during process of sample were not ready to witness the sample. The receipt was signed by accused himself and one, Shiv Prasad Awasthi as witness. One part of sample was sent for testing to Public Analyst Lucknow by registered parcel dated 03.06.1996 and rest of samples were deposited in Chief Medical Officer, Banda's (hereinafter referred to as the "CMO") office. The report dated 15.07.1996 sent by Public Analyst shows that milk sample contains 86% less milk fat, meaning thereby milk was adulterated. The Food Inspector sought sanction of CMO for prosecution vide letter dated 10.09.1996, which was granted on 19.09.1996, whereafter complaint was filed by Food Inspector in the Court on 15.10.1996. Notice of Public Analyst report sent to accused under Section 13(2) OF PFA, 1954vide receipt (Exhibit 8). The accused was charged under Section 16(1)(A)(1) of Act, 1954 vide case registered as Case No. 669 of 1996.

3. In support of prosecution case, Food Inspector, Sri V.K. Gandhi was examined as PW-1, Sri Shiv Prasad Awasthi, employee in the office of CMO, was examined as PW-2 and Sri S.K. Sharma, Junior Clerk in the office of CMO, as PW-3.

4. The documentary evidence included Form-6 notice (Exhibit 1), Milk purchase receipt (Exhibit 2), copy of Form-7 (Exhibit 3), Public Analyst report (Exhibit 4), Food Inspector's letter to CMO (Exhibit 5), sanction given by CMO (Exhibit 6) and notice under Section 13(2) (Exhibit 8).

5. The accused did not adduce any evidence in his defence. He denied the factum of collection of sample in his statement under Section 313 Cr.P.C.

6. The Trial Court believed prosecution case and convicted revisionist under Section 16(1)(A)(1) of Act, 1954 and awarded punishment of one year rigorous imprisonment with fine of Rs. 4,000/-. The accused-revisionist preferred Criminal Appeal No. 22 of 1998 but the same has been dismissed by impugned judgment dated 22.09.1998.

7. Sri H.M. Srivastava, Advocate assisted by Sri A.R. Dwivedi, learned counsel appearing for accused-revisionist, urged that there was no independent witness justifying collection of sample by Food Inspector after following procedure laid down under Act, 1954 as well as the rules framed thereunder and hence there is complete non-compliance of Section 10(7) of Act, 1954. He further contended that it is an old matter. The accused has already deposited fine of Rs. 4,000/- and has also undergone some period in jail, therefore, taking a lenient view in the matter punishment be reduced to the period already undergone. In support of his submission for remission in sentence, learned counsel for revisionist relied on the decision in Bhagwan Das Motu Lal Navalani Vs. State of Maharashtra, 1987(2) SCC 645.

8. Learned AGA on the contrary supported the judgments of court below and contended that concurrent findings have been recorded by courts below, hence no ground for interference in criminal revision is made out.

9. First I propose to consider the question, whether there is non-compliance of Section 10(7) of Act, 1954 and if so its effect on the conviction and sentence of accused-revisionist.

10. The prosecution witnesses included Food Inspector and Sri Shiv Prasad Awasthi, PW-2, who accompanied Food Inspector in official capacity. Both witnesses stated in their oral deposition the facts supporting prosecution case with regard to collection of sample from accused revisionist on 01.06.1996 and preparation of samples following the procedure under Rules. They were also cross-examined but nothing otherwise could be extracted therefrom.

11. The accused adduced no evidence whatsoever to discredit prosecution evidence. With regard to independent witnesses, Food Inspector has mentioned in his report that people collected on spot were not ready to witness collection of sample or otherwise. This fact was also proved by Food Inspector in his oral deposition. The accused, since attempted to dispute the very factum of collection of sample, contended that there was no question of compliance of Section 10(7) since no sample was collected from him. This question has been decided by both the courts below against accused and nothing has been shown before this Court to suggest that findings recorded by courts below are perverse or contrary to record or there is any misreading of evidence etc. The inspection report submitted by Food Inspector contained statement that people collected on the site did not come forward to evidence the sample despite request and, therefore, the Inspector proceeded further even though no independent witness singed the report.

12. In order to see whether is any non-compliance of Section 10(7), it would be appropriate to have a perusal of aforesaid provision, which reads as under:

"Section 10(7)- Where the Food Inspector takes any action under clause (1) of sub-section (1), sub-section (2), sub-section (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures."

13. The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954.

14. Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons". The words "as far as possible" were deleted by amendment of 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc., it shall vitiate the Trial.

15. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 1991 Cri.L.J. 2174 considered it and in para 2 of the judgment said that sub-section (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.

16. In another matter arisen from State of Uttar Pradesh itself, a three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said:

"5. We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 it was held by this Court after noticing that Section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

6. As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."

17. From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector at least should try to secure presence of one or more independent witness when he takes action under any of the provisions mentioned in Section 10(7). Once that has been done, evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable. It is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents.

18. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample.

19. Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here I am fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93.

20. The Apex Court in State of U.P. Vs. Hanif, AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case.

21. Following the above authorities and taking similar view, this Court in Criminal Revision No. 976 of 1989 (Ramesh Chandra Vs. State of U.P.) decided on 11.12.2014 in para 18 of judgment said as under:

"18. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial."

22. In Nathoo Vs. State of U.P. (Criminal Revision No. 168 of 1987), decided on 04.09.2015, this Court in para 19 of the judgment said as under:

"19. In the present case, the prosecution has clearly proved that an attempt was made to get independent witness at the time of taking sample and seizure but since none came forward, hence, the Food Inspector proceeded further. Hence the mere fact that independent witness is not there, proceedings would not vitiate."

23. The contention, therefore, that there was no independent witness to justify collection of sample by Inspector and thus there is non-compliance of Section 10(7) of Act, 1954, is rejected.

24. The next submission is that the incident is of 1996 and more than 19 years have passed, hence punishment awarded to accused should be reduced to the period already undergone or only fine.

25. Here I find myself unable to be persuaded by above submission. The revisionist has been found committing adulteration in food article, to be more precise 'Milk'. The fat contained in milk has been found deficient to the extent of 86%. Learned counsel for the revisionist contended that there was no adulteration of any toxic or obnoxious material which may have caused any serious injury or damage to the person consuming it and, therefore, it cannot be said that revisionist is guilty of any heinous crime.

26. The endevour on the part of learned counsel for the revisionist is really bold but wide off the mark. Milk is consumed by people of all the ages including infant child and old person. In what circumstances such milk would be fetched by them cannot be assumed since it may vary in hundred ways. There may be a situation where milk lacking essential ingredients may cause serious consequences to the person who has consumed it. The incumbent may suffer without any fault on his part and more so without knowledge as to why he/she has suffered.

27. This is a serious matter. We cannot deal a case of adulteration of food articles in a casual fashion. The people who can dare to adulterate food articles must be dealt with very severely.

28. Adulteration in food article has a direct adverse consequence to the health of public. Many a times such adulteration with food causes such serious loss to the consumer, which is unrecoverable and create permanent disability or loss etc. We cannot presume that the milk sold by accused-revisionist would have been used by a healthy person and not a patient facing serious disease in the Hospital or otherwise. The adulterated item is bound to cause such loss as it could be and the consumer would suffer without having any knowledge therefor. The people who are indulged in adulteration are more dangerous and stark enemy of humanity than those who commit crime by killing a person straight. Here the hidden crime causes injury to a person who has no idea as to how he has suffered and that too in a defenceless situation. He would believe that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a different and rather bad way. Consumer suffers in ignorance but with an obvious confidence that whatever he is intaking is alright. The adulterators, therefore, do commit a much heinous and serious crime to the Society as a whole and deserve no sympathy.

29. In fact, in our Country, we deal with adulteration with lot of sympathy which encourages continuous indulgence in such activities. The adulteration is not being treated with such seriousness as it ought to be. This treatment to adulteration is anti-human and anti-society. The act of adulteration need be viewed with absolute strictness and stringent measures must be taken to prevent it, else Society in general would continue to suffer in the hands of adulterators, who are minting money playing with health of public at large without taking care whether suffering consumer would be an innocent child, a pregnant lady, a patient in Hospital struggling for life or any such other needy person.

30. In the present case, the prosecution has proved the case beyond doubt. Accused has been found guilty of adulteration of milk. Court below has already taken a lenient view by imposing punishment of only one year rigorous imprisonment and fine of Rs. 4000/-. Attempt to grant any indulgence in such a matter, when the Court below has already taken a lenient view in awarding punishment, would be nothing but mockery of justice.

31. Society had a confidence in the system of justice and is waiting that persons found guilty of committing henious crimes are punished appropriately and suitably, even if punishment is executed with lot of delay since Society has no control over delay occurring in Court but has concrete faith in the system of justice. Therefore, it is not deterred by delay but is satisfied even when justice comes highly belated, provided it is not diluted and lean in favour of accused so as to treat him like a victim ignoring loss suffered by actual victim.

32. Even otherwise, punishment imposed by Courts below after finding charge proved beyond doubt is not to be interfered lightly unless the Court finds adequate and appropriate reason therefor.

33. In the matter of awarding punishment multiple factors have to be considered by this Court. The law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of the offence. Sentencing process should be sterned so as to give a message to the offender as well as the person like him roaming free in the society not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner irrespective of time lag.

34. Further sentencing process should be sterned but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above.

35. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254, the Court confirmed that:

"any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system". (Emphasis added)

36. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:

"It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

37. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, the Court said that:

"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

38. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the court said that:

"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence"

39. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516, the Court observed that:

"We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment". (Emphasis added)

40. The revisionist has not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what it is trying to take advantage is that the act of the Court should come to his rescue inasmuch as it is this Court which has taken two and half decades and more in taking up this revision and this should come to rescue of the revisionist for making reduction in punishment drastically though otherwise what has been done by the court below cannot be said per-se illegal, unjust or improper. It is well settled that the act of the court prejudice none. The failure of this court in taking up these matters within the reasonable time should not become a hand to the offender like present one to claim reduction in the punishment as a matter of right ignoring the fact that the society requires that an offender should be punished adequately and over the above the victim, who has suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert and accused as a victim ignoring all the rights of the actual victim, who has suffered, his family and the society in shown. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner, I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court.

41. The judgment in Bhagwan Das Motu Lal Navalani (supra) relied by learned counsel for the revisionist, does not help him inasmuch as it does not lay down any law but the Apex Court has remitted sentence since it possess very wide powers including powers under Article 142 of the Constitution, which are not available to this Court. Even otherwise, I find that therein the Court was persuaded from the fact that no allegation of adulteration was made against accused. A sample of Dhaniya was collected. In the analysis, ash percentage was found a little above than the standard prescribed for Dhaniya. Trial Court acquitted accused but convicted by High Court in appeal. Court has clearly mentioned in its order, "Having considered all these peculiar circumstances of the case and also of the fact that Public analyst Report does not indicate any addition of a foreign substance but the only irregularity found was that the total ash percentage was a little above the standard prescribed." and thereafter passed order.

42. Thus, order has been passed in the facts of that case. It does not lay down any law on the subject. On the contrary the law on the subject has been discussed in catena of authorities, some of which are referred to the above, which are binding authorities on this Court. The revisional exercise, therefore, is not justified in these circumstances warranting interference with the orders of courts below, impugned in this revision.

43. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

44. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

45. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

46. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

47. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

48. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

49. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

50. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."

51. In view of above exposition of law and considering the facts and circumstances of this case, this Court finds no merit in any of the submissions advanced on behalf of revisionist.

52. The revision is, accordingly, dismissed.

53. Interim order, if any, stands vacated.

54. The revisionist-Ram Das is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate, Varanasi shall cause him to be arrested and lodged in jail to serve out the sentence passed against him. The compliance shall be reported at the earliest.

55. Certify this judgment to the lower Court immediately.

Order Date :- 18.12.2015

AK