Amin Khan vs State Of U.P.
2023 Latest Caselaw 35214 ALL

Allahabad High Court

Amin Khan vs State Of U.P. on 15 December, 2023

Author: Samit Gopal

Bench: Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:237537
 
Court No. - 69
 

 
Case :- CRIMINAL REVISION No. - 993 of 2019
 

 
Revisionist :- Amin Khan
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Raj Kumar Vaishya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.
 

1. List revised.

2. Heard Sri Raj Kumar Vaishya, learned counsel for the revisionist, Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

3. The trial court records have been received which have also been perused.

4. The present revision under Sections 397/401 Cr.P.C. has been preferred by the revisionist- Amin Khan against the judgement and order dated 23.02.2019, passed by the XVI Additional Session Judge, Court No. 16, Bareilly in Criminal Appeal No. 224/2013 (Amin Khan Vs. State of U.P.) as well as order dated 12.09.2013 passed by the Additional Chief Judicial Magistrate-I, Bareilly in Case No. 1080 of 2002 (State Vs. Amin Khan), under Section 7/16 of Prevention of Food Adulteration Act, P.S.- Prem Nagar, District- Bareilly by which the learned trial court convicted and sentence the appellant for one year simple imprisonment and Rs. 2,000/- fine for offence under Section 7(I) read with Section 16(1-a)(I) and in default to deposit the fine, four months additional imprisonment and learned appeallate court dismissed the appeal filed by the appellant against the judgment and order dated 12.09.2013 passed by learned Additional Chief Judicial Magistrate-I, Bareilly in Case No. 1080 of 2002 and confirmed the judgment and order dated 23.02.2019.

5. The facts of the case are that B.P. Sharma the Food Inspector found the revisionist on 09.11.2000 at about 11.00 a.m. at Kudeshiya P.S.- Prem Nagar, Bareilly while he was selling milk of buffalo. The food Inspector introduced himself and purchased milk 750 ml from the revisionist by giving Rs.9/-for sample and then kept in three bottles in equal quantity in which 20 drops of formalin each was added for preserving it which was then sent to the public analyst for chemical analysis who vide his report being report no. 13091 dated 18.12.2000 reported it to be adulterated as it contained 29 per cent less milk fat and 31 percent less milk solid non-fat in it. The complainant then took sanction from the C.M.O. concerned and filed a complaint against the revisionist/accused. In the trial court the complainant B.P. Sharma the Food Inspector was examined as P.W.-1, Rafique Ilahi was examined as PW-2 and Rajeev Kamal was examined PW-3. The accused/revisionist in his statement under Section 313 Cr.P.C. denied the prosecution case and stated of false implication. The trial court convicted and sentenced the accused/revisionist as stated above. The appeal was preferred against the same which came to be dismissed after which the present revision has been filed against both the impugned judgement and orders.

6. Learned counsel for the revisionist argued that B.P. Sharma the Food Inspector was examined as PW-1 under Section 246 Cr.P.C. and states of taking sample of milk from the revisionist. It is argued that there is nothing on record to show that the said material was stirred and homogenized before taking sample of milk. It is further argued that in so far as the milk is concerned the sample has to be taken after stirring and homogenizing of material as the fat in the milk gets settled in bottom being heavy. It is argued that in view of the said discrepancy the revisionist cannot be stated to be carrying milk which was deficient in milk fat and milk fat not solid. It is argued that since the material was not stirred and homogenized before taking its sample and launch of the prosecution on an erroneous report of the Food Analyst, the present revision deserves to be allowed.

7. Further, learned counsel for the revisionist has argued that the notice under Section 13(2) of Prevention of Food Adulteration Act, 1954 has not been sent to the revisionist. It is argued that there is nothing on record to show that the same has been sent by the Food Inspector or received by the revisionist and as such valuable right of the accused/revisionist safeguarding his interest is violated. To buttress the arguments learned counsel has placed the judgement of the Apex Court in the case of Vijendra vs. State of Uttar Pradesh: (2020) 15 SCC 763 (para-14 and 15) and Narayan Prasad Sahu vs. The State of Madhya Pradesh: (2022) 1 SCC 87 (para-5, 6, 8 and 9). While further elaborating the arguments it is argued that as per Section 13(2) of Prevention of Food Adulteration Act, 1954, report of food analyst has to be sent within a period of 10 days from the date of receipt of the same, but in the present case the said report has not been sent which clearly frustrates the purpose and valuable rights of a person to get the sample of the same retested by the Central Food Laboratory. It is argued that the Apex Court has, in no uncertain terms, in the judgement of Vijendra case (supra) has held that failure of the trial court to take into consideration that no evidence was brought on record to indicate that the report which has been claimed to be dispatched, was actually sent or delivered for the purpose of further reference to the Central Food Laboratory, if the accused is dis-satisfied with the said report. It is further argued that even the trial has failed to take note of the said fact and also to record a finding that there is no evidence to show that the said report has been received at the end of the accused/revisionist. The said safeguard is provided to the accused under Section 13(2) of Prevention of Food Adulteration Act, 1954. It is argued that the present revision thus deserved to be allowed on the said two counts.

8. Learned counsel for the State opposed the prayer and arguments and argued that the trial court has given cogent reasons for convicting the revisionist. The appellate court has also considered the matter in its true prospective and has come to a conclusion that the appeal deserves to be dismissed.

9. After having heard learned counsel for the parties and perusing the records, in the matter since the milk before taking of its sample was not stirred and homogenized there are good chances of the upper part being taken from the cans which would be found deficient and further there is nothing on record to show that the notice under Section 13(2) of the Act has been sent by the Food Inspector or received by the revisionist and as such valuable right of the accused/revisionist safeguarding his interest is violated. In view of the same, it is apparent that the milk taken by the Food Inspector in cans is not stirred and homogenized and also not sent to the notice under Section 13(2) f the Act.

10. The present revision is allowed. The impugned judgement and order dated 23.02.2019 passed by the XVI Additional Session Judge, Court No. 16, Bareilly and the judgement and order dated 12.09.2013 passed by the Additional Chief Judicial Magistrate-I, Bareilly in the aforesaid case are hereby set aside.

11. The revisionist- Amin Khan is in jail, he shall be released forthwith from the jail unless warranted not any other case. His bail bond is cancelled and sureties discharged.

12. Office is directed to transmit the copy of this judgement along with the trial court records to the concerned trial court forthwith for its compliance and necessary action.

13. The file be consigned to records.

Order on Crl. Misc. Recall Application No. 2 of 2023

1. This recall application dated 01.12.2023 has been filed by the applicant/revisionist with the prayer to allow the present application and to recall the order dated 06.11.2023 passed by this Hon'ble Court in Criminal Revision No. 993 of 2019 (Amin Khan Vs. State of U.P.) or the same may be kept in abeyance till the next date fixed i.e. 15.12.2023.

2. Learned counsel for the applicant/revisionist submits that due to non appearance on behalf of the applicant/revisionist or his counsel, non bailable warrants were issued against him vide order dated 06.11.2023 and as such he prays that the said order be recalled.

3. In view of the same, the present recall application stands disposed of in terms of the order passed in the aforesaid Criminal Revision No. 993 of 2019 (Amin Khan Vs. State of U.P.).

Order Date :- 15.12.2023

M. ARIF

(Samit Gopal, J.)