Allahabad High Court
Surya Pal Yadav vs State Of U.P.And Ors. on 6 August, 2018
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 29
Case :- CRIMINAL REVISION No. - 262 of 2004
Revisionist :- Surya Pal Yadav
Opposite Party :- State Of U.P.And Ors.
Counsel for Revisionist :- Abdul Samad,Gopesh Tripathi,Nadeem Murtaza
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Gopesh Tripathi, learned counsel for the revisionist and Sri Anirudh Singh, learned AGA for the State.
2. By means of this revision the petitioner has assailed the judgment and order dated 15.6.2004 passed by the IIIrd Additional Sessions Judge, Raibarelly, in the Criminal Appeal No. 101 of 2002, Surya Pal Yadav vs. State, whereby the order dated 23.11.2002 was upheld which was passed by the Additional Chief Judicial Magistrate / Magistrate, Economic Offenses, Raibarelly, whereby the revisionist was punished with the six months Rigorous Imprisonment and the fine of Rs. 1000/- under section 7/16 of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 1954 Act). It was also directed by he learned Magistrate that if the fine is not deposited, the revisionist will have to undergo one month more imprisonment.
3. The brief facts of the case are that the revisionist was carrying on business of selling milk and on 15.12.1997 at about 12 A.M. (Morning) the revisionist was intercepted by the Chief Food Inspector, Sri C.K. Singh of Raibarelly who purchased 750ml milk from the revisionist and prepared three samples. As per prosecution story the Chief Food Inspector, Sri C.K. Singh, thereafter asked some passers-by and other persons to be independent witness in the matter but they did not agree. The prosecution story reveals that the aforesaid exercise was carried out after taking samples.
4. It has been further revealed that the sample was sent for chemical examination and as per the report of the Public Analyst it was found that the quantity of milk solid non-fat was less up to 9%, therefore, the said milk would be termed as adulterated milk.
5. The said officer i.e. the Chief Food Inspector was examined by the trial Court and he adduced his statement saying that he has completed all the formalities strictly in accordance with law and thereby sent the sample for its examination to the Public Analyst.
6. The learned counsel for the revisionist has vehemently submitted that the officer concerned has not followed the provisions of law strictly inasmuch as he asked the passers-by and other persons to be witness only after taking out the samples whereas the law provides that he should have asked the passers-by and persons to be witness before taking the samples. Learned counsel for the revisionist has further submitted that another officer who happens to be the Sanitary Officer and who was admittedly with the officer concerned, the Chief Food Inspector, but was not examined before the Court and the punishment order has been passed solely on the evidence of the said Chief Food Inspector.
7. Learned counsel for the revisionist has drawn attention of the Court towards the provisions of law of Section 10 of 1954 Act. He has categorically cited section 10(7) which mandates that the Food Inspector has power to take samples of any article after calling upon some independent persons. Section 10(1) and (7) reads as under:
"10. Powers of food inspectors.--
(1) A food inspector shall have power--
(a) to take samples of any article of food from--
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him; and
(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken;
(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health.] [Explanation.--For the purposes of sub-clause (iii) of clause (a), "consignee" does not include a person who purchases or receives any article of food for his own consumption.]
(7) Where the food inspector takes any action under clause (a) 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].
8. Learned counsel for the revisionist has also submitted that this is an incident of 1997 i.e. about more than 20 years old and the revisionist has not committed any offence punishable under any Act.
9. The record reveals that the revisionist was sent to jail on 15.6.2004 and was released from jail on 26.5.2004 and in view of the above he remained in jail for 10 days.
10. It has also been submitted by the learned counsel for the revisionist that presently the age of the revisionist is about 65 years and at this stage he is also one of the earning members of his family. It has also been submitted that in the report of Public Analyst no injurious content was found in the samples and the milk solid non-fat was less about 9%. The learned counsel for the revisionist has also relied upon a decision reported in 2010 (4) SCC 562 ( Nand Lal Vs. State of Uttarakhand and others) in which the Hon'ble Supreme Court while considering the age of the appellant and also taking into account the fact of the incident as very old reduced the sentence to the period already undergone by him. Thus, the Court in exceptional cases can reduce the sentence even less than the sentence provided under the Act.
11. Taking into account the fact that the incident in question has taken place about more than 20 years ago and the revisionist is also in advance age of his life, I am inclined to accept the submissions made on behalf of revisionist for reduction of his sentence.
12. Accordingly, this criminal revision is partly allowed. The sentence of six months Rigorous Imprisonment is reduced to the sentence already undergone by him. However, the fine of Rs. 1000/- which has been deposited by the revisionist in compliance of the order of the Trial Court would be forfeited.
13. Accordingly, the conviction order is maintained in the light of what has been stated herein above.
14. The revision is partly allowed.
Order Date :- 6.8.2018
Om
[Rajesh Singh Chauhan, J.]
