Gopal Pal vs State Of U.P.
2019 Latest Caselaw 4469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 25.4.2019
 
Delivered on 14.5.2019
 

 
In Chamber
 

 
Case :- CRIMINAL REVISION No. - 1620 of 1995
 

 
Revisionist :- Gopal Pal
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Tapan Ghosh,Ajay Kumar Sharma,Atul Sharma,K.S.Singh,Prakash Chandra Srivastav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Prakash Chandra Srivastava, learned counsel for revisionist along with Sri Atul Sharma, Advocate and Sri G.P. Singh, learned AGA for the State.

2. This revision has been preferred against the judgment and order dated 6.12.1995, passed by Vth Additional Sessions Judge, Mirzapur in Criminal Appeal No.5 of 1993 (Gopal Pal Vs. State of U.P.). Whereby the appeal has been dismissed and the order of Trial Court has been upheld.

3. The Trial Court (C.J.M. Mirzapur) vide judgment and order dated 23.7.1993, passed in Criminal Case No.762 of 1992 (State Vs. Ram Kumar and another) has held accused Gopal Pal guilty under Section 7/16 of the Prevention of Food and Adulteration Act, 1954 (hereinafter referred to as 'Act, 1954') and has awarded punishment of one year as rigorous imprisonment and fine of Rs.2,000/- and in default of payment of fine four months additional rigorous imprisonment.

4. The main contention of learned counsel for the accused-revisionist is that the accused-revisionist is a 67 year old person. The co-accused Ram Kumar Pal who was the owner of the shop and had a proper licence has been acquitted. The allegedly recovered Namkeen (Sev) is not covered in Section 2(ia) as an adulterated article of food. It is further argued that it is alleged that the revisionist was found selling the same, and, therefore, he cannot be made liable to be punished under Section 7/16 as he was not owner of the said shop. He was not caught manufacturing the said Namkeen and lastly it was argued that the provision of Section 13(2) of Act, 1954 was not complied with which is a mandatory provision, non-compliance of which vitiates the entire proceedings.

5. For appreciation of arguments of learned counsel for the revisionist, it would be proper to go through the facts of the case first and the opinion expressed by the Courts Below.

6. According to the prosecution case, on 30.11.1991 at about 10:30 AM Food Inspector Mohd. Haneef Ansari had inspected the shop in question, located near Naveen Chitra Mandir in District Mirzapur which was a sweet shop as well as shop for sale of tea and namkeen, when he reached there, accused Gopal Ram was found present selling the items. The co-accused Ram Kumar Pal was having a licence of the said shop. The Food Inspector having suspicion of adulteration in the Namkeen (Sev), purchased 600 grams of it for the purpose of analysis after paying an amount of Rs.24/- and also gave Form-6 to accused Gopal Pal and obtained receipt for purchase of the said items from him. The said Namkeen was kept in three clean and dried bottles for the purposes of sample and were sealed according to the rules and, thereafter, code slip was pasted thereon which is provided by C.M.O. Mirzapur and had obtained signatures thereon of accused Gopal Pal. One bottle containing sample was sent by registered post on 2.12.1992, to public analyst U.P. Lucknow while rest of the two bottles were deposited in the Office of Chief Medical Officer, Mirzapur. He received a report of public analyst, in which the sample was found containing Kheshari (Lathyrus Sativus) which is prohibited in edible articles. Thereafter, an application for sanctioning prosecution of the accused persons was moved before the Chief Medical Officer, Mirzapur on which the then C.M.O., Mirzapur granted sanction to prosecute the accused on 6.3.1992, and, thereafter, the Food Inspector Mohd. Haneef Ansari instituted the present complaint case. Thereafter, after following due procedure from the side of complainant the Food Inspector Mohd. Haneef Ansari was examined as P.W.1, retired Food Inspector S.K. Singh as P.W.2 and Food Clerk Aquil Ahmad Hasmi as P.W.3 and, thereafter, the evidence of prosecution was closed and the statement of accused were recorded under Section 313 Cr.P.C. in which the prosecution case was stated to be false and in defence it was further stated that there was no sweet shop near Naveen Chitra Mandir, rather there was an electricals shop near that place where the electrical items are sold in retail, regarding which he (co-accused) had licence. As regards the present accused-revisionist he stated that the entire prosecution evidence was false and that the witnesses being of the department had falsely implicated him. He also stated that he is brother of co-accused Ram Kumar Pal who has an electrical shop on which he sits. One witness Bihari Lal was also examined as D.W.1 in defence from the said of accused person and various documents were also provided which have been mentioned in the judgment.

7. After evaluating the evidence on record, the Trial Court has held the accused guilty and awarded punishment as mentioned above and the Appellate Court has upheld the said judgment in which it is mentioned that the accused had taken a defence that the C.M.O. did not have authority to grant sanction for prosecution; no compliance was made of Section 10(7) of Act, 1954; the provision of Section 13(2) of the Act, 1954 was not complied with and provision of Section 11(1)(b) of Act, 1954 was not complied with.

8. As regards the C.M.O. not having jurisdiction to grant sanction it was held that new Notification No.6000 dated 20.1.1997, had authorized all Chief Medical Officers to act as Local Health Authority for the whole District, and, therefore, the C.M.O., Mirzapur had full jurisdiction to grant sanction to prosecute the accused-revisionist and that point stands settled because it is not agitated before this Court.

9. As regards none-compliance of Section 10(7) of Act, 1954, it is held by the Appellate Court that the said provision is mandatory provision, compliance of which is made mandatory at the end of Food Inspector. At the time of collecting the sample, more than one independent witness is directed to remain present but it is also correct that if the Food Inspector summons independent witnesses for the said purpose but they do not co-operate, in such a condition if Food Inspector is not able to comply with the said provision according to law laid down by the Hon'ble Apex Court in AIR 1974 Page 789, the duty of the Food Inspector is held confined to only calling independent witnesses but the said inspector cannot compel any witness to appear and that if the evidence of the Food Inspector is found to be believable, on that basis the accused could be held guilty. It is further recorded in the judgment the said provision is made with a view to taking extra precaution and the same cannot be treated to be a mandatory Principle of Law. It is further held that if the Food Inspector while performing his official duty, in that capacity, purchases some article for the purposes of analysis of the test in accordance with the provisions laid down in the Act and the same is found to be adulterated after its analysis by public analyst, in that situation it is mandatory for the Food Inspector to proceed against such a person from whom the sample was taken. The evidence of the Food Inspector shall be analyzed on the basis of merit and on his testimony the case can be held proved. In the case in hand there was no such allegation made against the Food Inspector that he was inimical towards the accused hence, there could be no doubt that he had collected the sample from the accused which was found to be adulterated. The Trial Court as well as Appellate Court have dealt with this point at length and I find that there is no reason why it should not be concluded that the provision of Section 10(7) of the said Act were complied with.

10. It is recorded in the impugned judgment that on Form no.6 (Ex- Ka-2), the signature of accused-revisionist is available which is made on behalf of co-accused Gopal who has been acquitted in this case. The receipt which was issued in view of purchase also bears signature of Gopal for co-accused Ram Kumar which is Ex Ka-3 and on both these Exhibits, the date is of 30.11.1991, and time is about 10.30 AM for purchase of 600 Grams of Namkeen (Sev) for an amount of Rs.24/-. Form no.6 and purchase receipts are Exhibits ka-2 and ka-3 respectively and it has been mentioned in them that witnesses were called from the vicinity but they refused to be witnesses to the said recovery and also refused to disclose their names and addresses. Therefore, it is held that the compliance of Section 10(7) was adequately made in this case. I also concur with the said opinion and find that there is no infirmity as regards holding that the compliance of the said Section was wholly made.

11. The next most important point is non-compliance of provision of Section 13(2) of Act, 1954 which is mandatory provision. In this regard, it is recorded in the impugned judgment that the revisionist was sent a copy of public analyst's report regarding which postal receipt was available and on the basis of that notice, the revisionist was informed that a complaint case had been filed against him and in case, he wanted, he could take necessary action within 10 days of the receipt of the notice. In the said notice there is mention made of the complaint case having been filed, which was sent on 16/17.6.1992 and a report of public analyst was also annexed therewith. In the said notice Gopal Pal son of Kedar Nath Pal near Naveen Cinema, Post- Sadar, Meerapur was mentioned. P.W.3 A.A. Hasmi has clearly stated that public analysts report was transmitted to both the accused i.e. Ram Kumar Pal as well as Gopal Pal (on their home address vide letter of C.M.O. LHA Mirzapur Letter No. F-20-92-93 dated 16/17.6.1992, copies of which were brought by him today which were deposited and the same was marked as Ex Ka-11. It is also recorded in the judgment that it appears to be by mistake that Ex Ka-11 was mentioned, though on the said Prapatra, Ex. Ka.12 was mentioned and the said receipts by which the registered letter is sent, was paper no.16-A which is Exhibit Ka-11. From the evidence of A. A Hasmi P.W.3 dated 25.5.1993, it was evident that both the accused were sent separate registry and therefore, if they wanted, within 10 days, they could have sent the other sample to CFL for being tested. Those registries did not return. From SPS Register, page 7, it was evident that the entry was made by this witness in his hand writing in respect of the said registries having been sent and the entry was also made of postal receipt no.4477 and 4475, dated 17.6.1992 which was submitted by him in Court which is Ex Ka-11. Therefore, it was evident that the registries were sent to the revisionist-accused and if he had not received the same, in that condition when he had appeared before Court he could have asked for the second sample to be sent for CFL for being tested. In his not doing so, he could not get any benefit. This part has been adequately dealt with by the lower court, if the registry was sent and the same did not return, it would be deemed that the same was served upon the accused and with that conclusion I do not have any quarrel.

12. Much argument was made by learned counsel for the revisionist that it was not proved that the registry was sent on the given address of the revisionist-accused because on the receipt filed before the Court, the same did not contain the whole address of the accused-revisionist. Hence, that could be treated to be a breach in sending mandatory notice to the accused-revisionist. I do not accept this argument because the details of the address are always noted on the envelope which is sent and not on the receipt of registry, because receipt of registry always contains small reference of the name of the person whom the same is sent as well as to place, which is normal practice being commonly observed. Therefore, in my opinion the compliance of Section 13(2) of Act, 1954 is found to have been made adequately.

13. Learned counsel for the accused-revisionist has relied upon in the Case of Jugul Kishore Vs. State of U.P. [2019 (106) ACC 752], in which it has been held that prosecution has to prove the fact of service by producing evidence aliunde, not just the dispatch of notice, in order to be in accord with section 13(2) of Act, 1954 and held in the present case that admittedly, no acknowledgment card or other evidence, such as, a certificate of delivery of the registered postal cover by the postal department has been placed on record, hence, it would fall foul of requirement of section 13(2) of the act read with the relevant rule.

14. There is no quarrel with the principle laid down above, but in the present case, I find that the receipt of registry has been produced by the prosecution in respect of which evidence is also led that the information was sent to the accused by registered post, receipt of which was presented in court, showing the given address and though the full address was not written on the receipt but it has been held to be a common practice that the full address is always written on the envelope which is sent to the addressee while the person who sends the registered letter is given a receipt mentioning thereon the name of the addressee, normally, which appears to have happened in the present case also. Hence, the filing of receipt of registry from the side of prosecution would be an admissible piece of evidence under Section 114 of the Evidence Act.

15. One more point which needed to be considered was that when the accused had appeared before the Court he had opportunity to move an application for getting the second sample sent for being tested which right has not been exercised by the accused. I do not know whether in the case relied upon by the learned counsel for the accused-revisionist, the accused had appeared before Court and had applied for excising his right or not to get the second sample sent for being tested, therefore, the facts of the present case may be distinguishable from the facts of the case relied upon by the learned counsel for the revisionist

16. The learned counsel for the revisionist-accused has relied upon the Nagar Swastha Adhikari, Nagar Maha Palika Vs. Chhunni Lal, 1991 supplementary ACC page 403, in which it is held that under Sub-Section 2 of Section 13 of Act, 1954, the accused-revisionist has been given a valuable right to apply to the court to have the sample taken and get it analyzed by Director of the Central Food Lab, if this right is prejudiced, in any way by the carelessness or negligence of the prosecution, report of the public analyst cannot be relied upon and the accused-revisionist can not be convicted on the basis of said report. The said provision is mandatory and a violation thereof would deprive the accused-revisionist of a valuable right. There is no dispute with the above Principle Law but I have already given my finding that the compliance of Section 13(2) was properly made in this case, as soon after the receipt of public analyst report and the filing of the complaint case, registered notice was sent to the accused on his given address which provided him sufficient opportunity, within the time prescribed of 10 days, to move for obtaining the second sample, for getting the same analyzed from the Director of Central Food Lab. Furthermore, when he appeared before the Trial Court, he had a right to move an application for getting the second sample for being tested, sent to the Central Food Lab but he did not avail of that opportunity and, therefore, he cannot take this plea at this late stage and no benefit can be allowed to him.

17. I may rely upon the case of State of Rajasthan Vs. Jagdish Prasad, 2009 Law Suit (SC) 694, in which it has been held that the Trial Court had awarded six months imprisonment to the accused under Section 6/17 of the Act, 1954 and the High Court had upheld the conviction but imposed the fine of Rs.6,000/- and directed commutation of sentence of six months R.I. When the matter came up before the Hon'ble Apex Court it was held that strict adherence to the provision of Prevention of Food Adulteration Act and Rules framed there-under is essential for safe-guarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could get away with mere fine and therefore, order of sentence by the Trial Court was upheld. Further for a period of three months accused was given liberty to move appropriate Government for commutation of sentence and accordingly, the impugned order of High Court was set aside.

18. In view of the above analysis made by me, I am of the opinion that there is no infirmity in the impugned judgment and order dated 6.12.1995, and that the accused-revisionist has been rightly convicted under section 7/16 of Act, 1954 but as regards sentence, I find that much time has elapsed since the occurrence took place and by now the accused has turned to be about 67 years of age, therefore, it would be proper that instead of one year S.I and fine of Rs. 2,000/- the same be reduced to six months simple S.I. which is minimum sentence prescribed under Section 16 of the Act. However, no interference is required as regards fine. Therefore, the sentence of accused-revisionist is reduced to S.I. for six months and a fine of Rs.2,000/- and in default of payment fine 15 days S.I., to meet the ends of justice.

19. This revision is accordingly partly allowed and a copy of this judgment be transmitted to the Trial Court expeditiously to carry out the judgment and ensure that the accused is taken into custody to serve out the sentence awarded. The period for which he has been detained earlier the same would be adjusted against the said sentence. The bail bonds and surety bonds of accused-revisionist are discharged.

20. It was argued by learned counsel for the accused-revisionist that the revisionist-accused has now turned 67 years of age and, therefore, it would be very painful for him to go to jail and serve out the remaining sentence at this far distant point of time, therefore, in view of the judgment of Apex Court in the case of State of Rajasthan Vs. Jagdish Prasad, 2009 Law Suit (SC) 694, this Court deems it proper to grant him three months time from today to approach appropriate Government annexing a certified copy of this order to seek remission under Section 433(d) Cr.P.C., if so advised.

21. If the revisionist files any such application for grant of remission by the Government before the Trial Court with its receipt then the Trial Court shall await the outcome of the said application which shall be informed by the revisionist to the Trial Court also immediately. If he is granted remission by the Government, the Trial Court shall abide by it, failing which the accused-revisionist shall be taken into custody after expiry of the period of 3 months from today, to serve out the remaining sentence.

23. Office is directed to send a copy of this order to the Trial Court immediately for compliance.

Order Date :- 14.5.2019

Neeraj