Suresh Alias Dinesh And Another vs State Of U.P.
2019 Latest Caselaw 4470 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 26.4.2019
 
Delivered on 14.5.2019
 

 
In Chamber
 

 
Case :- CRIMINAL REVISION No. - 60 of 1995
 
Revisionist :- Suresh Alias Dinesh And Another
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Satish Trivedi,P.S.Gupta,Prem Sagar Gupta,Puneet Bhadauria,R.K.Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Puneet Bhadauria, learned counsel for revisionist and Sri G.P. Singh, learned AGA for the State.

2. This revision has been preferred against the judgment and order dated 16.12.1994 passed by 3rd Additional District and Sessions Judge, Deoria in Criminal Appeal No.4 of 1994 (Suresh and others Vs. State of U.P.) whereby the judgement and order dated 27.1.1994, has been affirmed and the appeal has been dismissed. By the said judgment and order dated 27.1.1994, passed in Criminal Case No.519 of 1993 (State of U.P. Vs. Suresh), the Munsif Magistrate, Kasia Deoria has held the accused-revisionist Suresh @ Dinesh guilty under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act "1954") and has awarded one year of R.I. and a fine of Rs.1,000/- and in default of payment of fine one month further imprisonment and the other accused-revisionist Ganesh @ Pyare Lal has been convicted and sentenced under the said Section with six months R.I. and a fine of Rs.1,000/- and in default of payment of fine one month further imprisonment.

3. The facts in brief of the case are that on 22.12.1982, at about 1 PM Suresh @ Dinesh and Ganesh @ Pyare Lal was found carrying mustered oil for sale in Kasia within the jurisdiction of P.S. Kasia who told P.W.1 that he does work of sale while his father Ganesh @ Pyare Lal is owner of the shop. P.W.1 purchased 375 grams mustered oil from him for the purposes of sample and gave the seller, notice form no.6 and obtained his signature thereon after making him payment of Rs.6/- for the said sample and also obtained receipt thereof. The said mustered oil was filled in three dry bottles in equal quantity and after closing the same they were sealed and labels were prepared which were pasted thereon and one sample, on which full description was written was read out to the seller in presence of the witnesses. After pasting the label on all the three bottles signatures of the seller was obtained thereon and on 4th copy also signatures were obtained from the seller as well as witnesses. All the three bottles of sample, labels were pasted, whole description was written and the signature of the seller was also taken on the code. After taking all the three bottles of samples, he (P.W.1) came to the Head Quarter on 23.12.1982, and after sealing one bottle of sample along with a copy of one form-7 sent the same by registered post vide receipt no.947 dated 23.12.1982 to Public Analyst, Lucknow for the purposes of analysis and one copy of the form no.7 was separately sent in a sealed envelop vide receipt no.4055, dated 23.12.1982 to Public Analyst, Lucknow through post office and two sample of bottles after being sealed along with two copies of form no.7 were deposited in the Office of C.M.O. Deoria and one separate copy of form no.7 was also deposited in C.M.O. Office separately. Thereafter, he came to know that seller Suresh had disclosed his name as well as his father's name wrong, therefore, he inquired correct name of the seller as well as of owner after pointing out about the same and he made corrections in the letters in respect of name and parentage and informed about it on 28.12.1982 to Public Analyst, Lucknow and one copy of the same was also sent to C.M.O. Deoria. The correct name of the seller was Dinesh son of Pyare Lal Baniyan resident of Village Sakhopar, P.S. Kasia, District Deoria. The Public Analyst gave its report no.28484 dated 8.2.1983 in respect to the sample, finding it 100% oil of Alsi instead of mustered oil. The said report was received by him on 2.6.1983, under the order of C.M.O. Deoria and the same was deposited in the Office of C.M.O. Deoria by him with application dated 10.5.1983 and after having perused those documents permission was given to him for preparing challani report against the accused-revisionist which was prepared by him and a written permission was granted by C.M.O. for prosecution of the seller as well as owner of the shop in accordance with law for having committing offence under Section 2(ia)(c) read with Section 7(i) of the Act. The cognizance was taken by the Trial Court and Sri B.N. Singh, Food Inspector was examined as P.W.1 and Ashok Kumar Gupta Food Clerk was examined as P.W.2. P.W.1 has clearly stated that accused had told the wrong names of the owners of the shop, therefore, he found out the correct name and had written to the Public Analyst, Lucknow and C.M.O. Deoria for correcting the names and addresses of the accused, therefore, on this ground no benefit can go the accused. He has also stated that form no.7 which is exhibit ka-8 which has not been filled fully by C.M.O. Deoria. He has further stated that he had asked the witnesses on the spot to be witness, but they were not ready and the Trial Court has held that this witness has stated nothing such on the basis of which his testimony in examination-in-chief be disbelieved. Regarding P.W.1 it is written in the judgement that he has stated that he had gone to send information to the seller Suresh @ Dinesh son of Ganesh @ Pyare Lal Baniyan, Village-Sakhopur, District Deoria vide dispatch register no.79(1) dated 18.5.1984 and to the owner Sri Ganesh @ Pyare Lal son of Lal Jee @ Ram Lal Baniya, Village Sakhopur, District Deoria about initiation of the case against them vide dispatch no.18(2). He has further stated that the public analyst report no. 28484 dated 8.2.1983 were also sent to them vide letter no.29/84-78(1), 80(2) dated 17.5.1984/18.5.1984 vide postal office receipt nos. 4573 and 4570 dated 18.5.1984 which are exhibits ka-12, 13 and 14 respectively. Therefore the Trial Court has held that this witness had sent report of the public analyst to both the accused and whatever has been asked in cross-examination from him no benefit would go to the accused thereon. He has also recorded in the judgment that all the necessary steps which were required to be taken at the time of taking samples were complied with and though, the accused have stated that entire evidence against them is false but no evidence has been adduced in their defence.

4. It is further recorded by the Trial Court that the Food Inspector has stated in his statement under Section 244 Cr.P.C. that the accused was challaned on 12.12.1982, while actually he was challaned on 22.12.1982 but no benefit of the same would go to the accused because on the basis of documentary evidence the samples were taken from the accused on 22.12.1982 which date is mentioned in the documents.

5. It is opined by the Trial Court that merely because an error has been committed in giving the date, will not amount to holding the whole prosecution story to be false. It is also mentioned in the judgment that it was argued before him that sample was taken on 22.12.1982 and Form no.7 was prepared on 23.12.1982 but the prosecution story cannot be held to be wrong only because Form-7 was prepared on 23.12.1982 because in the Act, 1954, it is provided that on the day on which sample will be taken the Form-7 shall be prepared either the same day or on the next date. Therefore, it does not appear that Food Inspector committed any error in preparing the Form-7.

6. It was also argued before the Trial Court that C.M.O. Deoria did not apply his mind while granting the sanction to prosecute, in this regard it is recorded that perusal of the sanction order makes it clear that the C.M.O. had made compliance of all necessary provisions and a perusal of Ex. Ka-11 (sanction order) would make it clear that CMO had given sanction in accordance with law merely because the sanction was typed written would not mean that C.M.O. Deoria did not grant sanction after applying his mind.

7. Further it was argued before the Trial Court that Rule 17 and 18 of the Prevention of Food Adulteration Act, 1955 were not followed which provides that the seal used should be sent to the Public Analyst, Lucknow separately so that the seal used in the process could be compared. It is mentioned about it that from the perusal of file it is clear that Form-7 was presented before public analyst on 23.12.1982 which is exhibit ka-4 and both the parts of the same were sent to the C.M.O. Deoria, thus Rule 17 was fully complied with and Rule 18 is its supplementary which provides that the seal used on Form-7 should be separately sent and also provides that on whatever day the sample is taken, on the very next day, this compliance should be made. The Food Inspector in his statement has stated that he had sent the seal after closing the same on 23.12.1982 to Public Analyst, Lucknow and rest of the copies were sent to the C.M.O. Deoria and thus Rule 18 fully stands complied with.

8. Further the Trial Court has recorded that after perusal of the statement of accused under Section 313 Cr.P.C. he reaches the conclusion that the Food Inspector had complied with all the necessary requirements and had purchased 375 grams of mustered oil regarding which the accused was sent notice forthwith and its price Rs.6/- was paid to him as per the prescribed procedure and on 23.12.1982, the sample was sent to Public Analyst Lucknow with one copy of Form-7 and thereafter, the remaining samples were deposited in the Office of C.M.O. Deoria. The Food Inspector in his statement under Section 244 Cr.P.C. has stated that notice given to the accused (Ex. Ka-2) label Form-3 and notice exhibit ka-4 were subsequently, amended as initially accused had disclosed their names wrong and the letters were sent regarding this amendment to Public. Analyst, Lucknow as well as Chief Medical Officer, Deoria by letter Exhibit Ka-6. After receipt of report from public analyst, the sanction for prosecuting the accused was obtained from the C.M.O. Deoria and after having completed all the local formalities the charge levelled against the accused are found proved.

9. The Appellate Court has held that the sample of mustered oil is stated to have been taken from the foot path where accused Dinesh was selling mustered oil, the total quantity of which was 14 Kg and after the analysis of the sample, it was found to be 100% of Alsi oil and, therefore, the argument was made before the Appellate Court that the accused are resident of Village-Sakhopar where they have their shops and in such condition the Food Inspector of Sakhopar had no authority to go to Sakhopar and collect the sample because the Food Inspector was of Kasia area. The Food Inspector Sri B.N. Singh has admitted that he did not have Sakhopar in his jurisdiction but this objection has been over-ruled by the Appellate Court mentioning that he had found the accused Dinesh selling mustered oil in his area and the accused had stated to him that his father was the owner of the shop and it was not necessary that the seller must have some shop only. 14 Kg oil was found being sold at foot-path and, therefore Food Inspector did not commit any mistake in taking sample. Accused could not prove that they had shop in Sakhopar at which place. In village areas it is often found that the sellers sometimes sell their items in market at other place instead of at their original place. Moreover, it is held that no enmity has been proved by the accused with the said Food Inspector and, therefore, why the Food Inspector would falsely implicate him.

10. It was argued before Appellate Court that compliance of Section 10(7) of the Act was not made because public witnesses were not taken. In this regard it was held by the Appellate Court that people of public at the said place were asked to be a witness but they were not prepared to be witnesses hence, the compliance of said section shall be taken to have been made. As regards 12.12.1982, being written as the date on which sample was taken while in papers 22.12.1982 is reported as the date when the sample was taken, it is held in this regard that the entire documents with respect to taking sample on 22.12.1982 is endorsed and only in the statement the Food Inspector said date is wrongly mentioned as 12.12.1982 which appears to be a mistake on the part of reader and appears to be a bonafide mistake and moreover no cross-examination has been done from the Food Inspector on the person, hence, no benefit would go to the accused.

11. It was also raised before the Appellate Court that the Local Health Authority did not apply his mind in granting sanction because the same has been granted on printed form and hence, application of mind does not appear to have been made. It has been repelled by the Appellate Court by saying that because the said authority has seen all the documents which find reference in Exhibit ka-9, hence, it would be treated that the application of mind was made while granting the sanction of prosecution.

12. It was also argued before the Appellate Court that proceeding for collecting the sample was made on 22.12.1982 while Form-7 was prepared on 23.12.1982 hence, compliance of Rule 17 and 18 of the Rules, 1955 was not made but it is held that no such question was asked in cross-examination from the said witness and from the papers it was evident that after taking the sample, next day of the same, the entire proceedings for sending the sample was completed and it is evident from the evidence of Public Analyst that a separate copy of Form-7 along with bottle of samples were sent to the Public Analyst, Lucknow and about this fact mention is also made by Public Analyst in his report. As regards the other bottles of sample being deposited in the Office of Local Health Authority is concerned, the argument of the counsel for defence was that the same was deposited on 26.12.1982 while the same ought to have been deposited on the very next date of taking the sample but in this regard the Appellate Court has held that no such question was asked from the said Food Inspector so that he could give his explanation regarding the same.

13. Next argument placed from the side of accused was that the provision of Section 13(2) was not complied with but it was found to be not sustainable by the Appellate Court because Food Inspector Ashok Kumar Gupta had made it clear that he had sent the report of the Public Analyst on the address of the accused by registered post along with the letter of Local Health Authority and the receipt of the said letter is Exhibit ka-12 and the postal receipts are Exhibits ka-13 and 14. Since the registries did not return therefore, it would be presumed that the same were served upon the accused. In exhibit ka-12 name of the Munsif Magistrate, Kasia is mentioned regarding which it was stated that there were many Courts of Judicial Magistrate in Kasia but that was not taken to be correct argument because in Kasia on the post of Munsif Magistrate there was only one Officer working. Therefore, the argument that accused could not have come to know that he could have given an application before Court for getting his second sample sent for being tested does not hold water.

14. From the perusal of the judgement of the Trial Court and Appellate Court, the facts which have emerged are that the co-accused Ganesh @ Pyare Lal has died, hence, his Revision has been abated vide Courts order dated 25.4.2019. As regards the other accused namely Suresh @ Dinesh, it is apparent that he was found selling the mustered oil by P.W.1 Food Inspector, sample of which was taken in accordance with the provisions of the Act which was found to be 100% oil of Alsi and hence the Trial Court as well as Appellate Court have held him guilty under Section 7/16 of Act, 1954.

15. Only the two points have been raised by the learned counsel for the revisionist; (1) the accused-revisionist was selling oil of Alsi and not mustered oil, hence he has not committed any offence; (2) No public witness has been taken of proving recovery of such adulterated oil. It is further argued that accused has no criminal history.

16. I do not find that there was no jurisdiction of the concerned Food Inspector and that there was non-application of mind in granting prosecution sanction. The compliance of Section 13(2) of the Act and compliance of Rules 17 and 18 of the Rules of 1955, all have been dealt with by the Trial Court as well as Appellate Court adequately and looking to the fact that two Lower Courts have been given a concurrent finding and nothing much has been argued before this court on merits by the learned counsel for the revisionist-accused, I do not find any reason to interfere in the concurrent findings of the Courts below and hence, the conviction of accused-revisionist is upheld. The accused-revisionist is on bail his bail bonds stands discharged.

17. The only consideration for me remains that the incident is stated to be of the year 1982 when the accused Dinesh @ Suresh was just 22 years old and now 36 years have gone by since then and he would have become 58 years old approximately by now, therefore, at this far point of time it would be extremely painful for him to go to jail. Therefore, I would like to reduce the sentence of the accused from one year to six months although no interference is required in the fine imposed and in the default clause and it is done accordingly.

18. Reliance has been placed by learned counsel for the revisionist in 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.

19. It was argued by learned counsel for the accused-revisionist that the revisionist-accused has now turned 58 years old approximately by now 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.

20. 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.

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

Order Date :- 14.5.2019

Neeraj