Sukhi vs State Of U.P.
2023 Latest Caselaw 27959 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:196321
 

 
Court No. - 75
 

 
Case :- CRIMINAL REVISION No. - 1235 of 1995
 

 
Revisionist :- Sukhi
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- J.S. Tomar,Ehtesham Afsar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Umesh Chandra Sharma, J.

1. Heard Sri Ehtesham Afsar, learned counsel for the revisionist, learned A.G.A for the State and perused the record.

2. This criminal revision has been preferred against the judgment and order off conviction and sentencing dated 12.05.1992 passed by the then A.C.J.M. Ist (Economic Offences) / Special Judge, Bareilly, in Case No. 2 of 1992- Sukhi Vs. Sate of U.P. under Section 07 of 2016 of Prohibition of Food Adulteration Act, 1958 and in which the revisionist had been convicted and sentenced for a period of six months and to pay a fine of Rs.1,000/- with additional stipulation that in case of non-deposition of fine the accused would further serve three months Rigorous Imprisonment.

3. By this revision, the revisionist has also challenged the order of Criminal Appeal No. 54 of 1992 - Sukhi Vs. State passed by the learned Additional Sessions Judge / Special Judge, Bareilly, dismissing the appeal of the revisionist dated 20.09.1995 and confirmed the order and sentencing passed by the learned Additional Chief Judicial Magistrate (Economic Office) - VI, Bareilly.

4. The victim revisionist has taken ground there is no compliance of Section 10(7) of the Act according to which it is mandatory for the Food Inspector to call out the witness present on the spot as prosecution witness. Thus, in absence of compliance of Section 10(7) of the Act the conviction and sentence passed against the revisionist is liable to be set aside. The report of public analyst shows that the fatty contents in the sample was 42% while the non-fatty substance was 7.9%. Thus, there was deficiency of 7% non-fatty substance. It is settled law that if fatty contents is found much higher than the prescribed limit and the non-fatty substance is below the standard prescribed, the inference will be that no water was added to the milk and the result was due to non-proper feeding of the cow or the report of the public analyst is false. Therefore, the milk was not adulterated. Even if it is presumed for the sake of argument that the milk was adulterated and the same was deficient by 7% in non-fatty substance, the milk cannot be presumed to be adulterated. Thus, it is a case of special circumstance for which the court may award three months imprisonment and Rs.500/- fine in special circumstance in the present case. The revisionist is a young boy aged about 18 years and there was no previous conviction against him and he is entitled to the benefits of probation of First Offenders Act and he is entitled to the benefit of Section 20AA of the Act. This aspect of the matter has not been considered. The milk taken by the revisionist was not for sale and the same was taken by the revisionist in his relation on the occasion of a marriage ceremony of sister of his brother-in-law (bahnoi) and the milk was not taken for sale, therefore, the conviction and sentence of the revisionist is illegal. The revisionist has already undergone 22 days during the trial and he is in jail since 20.09.1995, therefore, the revisionist had already undergone one month rigorous imprisonment and had deposited fine of Rs.1,000/- awarded by the court below, therefore, the revisionist is entitled for acquittal. It is further prayed that the revision be allowed and the conviction and sentencing passed against the revisionist be set aside.

5. In brief, facts of the case are that Sri M.S. Mathur, Food Inspector met to the Revisionist-Sukhi on 19.12.1985 at about 09.15 a.m. at Naryawal Bus Stand, Vasthan Lucknow Road, to the accused -Sukhi, who had taken 10 k.g milk for sell on his bicycle. On being ask the accused informed that it is a cow milk, which has been carried by him to sell. The accused did not take any licence for selling the milk for the year 1985-86. On suspicion he took 660 m.l milk worth Rs. 2 and 75 paise for sampling from the accused and provided a notice on proforma no. (6) on form no. 6 (Ex. K-1), he also received a receipt (Ex.K-2) for the price paid for the milk purchased from the accused and took finger print of the accused on it. No public was ready to be witness. The purchased milk were kept in three small clean glass vials after adding 18 - 18 drops, in each for formalin 40 per cent potencies in each and sent them as per rules. He also pasted signed code slip of C.M.O on the above vials and also got thumb impression on each vials. He also prepared Form No. 07 (Ex. K-3) in the prescribed copies and a memorandum was prepared. One specimen vials with Form No. 07 was sent to Public Analyst, Lucknow for its' testing and two vials alongwith a copy of Form No. 7 was sent in the office of C.M.O. Bareilly.

6. The Public Analyst report no. 26786 dated 01.02.1985 (Ex.K-4) was received, according to which non fatty solidus were found about 7 per cent less. Thereafter, the Food Inspector prepared his report (Ex. K-5) and sent it to the C.M.O Bareilly for prosecution sanction, the then C.M.O Dr. I.S. Pal given his proposal as Ex.K-6 on the basis of which, the Food Inspector represented complaint (Ex.K-7).

7. An information under Section 13 (2) of the Act, (Ex.K-8) was sent by the Food Inspector to C.M.O. Office for compliance. The information (Ex.K-9) was sent by the C.M.O. Office to the accused and thereafter the case started.

8. Under Section 244 Cr.P.C, P.W 1 M.S Mathur examined himself and the statement of accused was recorded, thereafter, in which he admitted that at the time of incident he was carrying the milk and the Food Inspector had taken his thumb impression on the paper, but the milk was not for sale, which the accused was carrying the milk for the purposes of marriage of his sister-in-law (nanad), (Nanad of the accused's sister). The accused denied the charge and sought trial.

9. Under Section 246 Cr.P.C, statements of the P.W. 1 - M.S Mathur, Food Inspector and P.W. 2 - Suresh Chandra Sharma, Food Clerk of C.M.O. Office were recorded, thereafter the statement of accused was recorded under Section 313 Cr.P.C, in which he admitted that a milk sample was taken by the Food Inspector and his thumb impression were also taken by him. He has also admitted that a report of Public Analyst was received to him, but he denied that any amount in lieu of milk sample was given to him. He also reiterated the said milk was not for sale, but he was carrying the milk in connection of the marriage of sister of his brother-in-law.

10. In defence D.W. 1 - Brij Lal, brother-in-law of the accused has also been examined as defence witness. During the course of trial the Food Inspector M.S. Mathur, P.W. 1 has deposed in favour of the prosecution though he admitted that he asked from the people present on the spot to be witness, but none of them became ready, hence he could not take any public witness. This witness has proved all the papers right from Ex.K-1 to Ex.K-9, which has also been mentioned above.

11. P.W. 2 - Suresh Chandra Sharma, has also deposed in favour of the prosecution that rest two samples were kept in C.M.O. Office alongwith a copy of the report of public analyst alongwith a notice was sent to the accused, but he did not wish to get the sample re-examine from Central Laboratory.

12. The learned trial court and the learned appellate court did not believe the defence evidence of D.W. 1 Brij Lal that milk was not for sale, but it was being carried by the accused for the purposes of marriage. From perusal of Public Analyst before it, it has been established that though the fatty solid were more then the prescribed limit, but non fatty solid was seven percent less then the prescribed in the Act and the Rules.

The learned appellate court has also concurred the finding of the trial court and dismissed the appeal upheld convicting and sentencing the order dated 12.05.1992.

13. In this case the revisionist had taken ground that Section 10 (7) of the Act has not been complied with. In this respect PW-1, Food Inspector had proved that the public witnesses were called for but none came forward to be witness. Generally public do not come forward in support of the prosecution or the Food Inspector to be a witness. It is common phenomenon that generally people avoid to be witness as it creates uncalled for enmity with the accused.

14. Non-examination of independent witness is never fatal as has been held in several cases by the Apex Court such as in Mukesh Vs. State for NCT of Delhi and others, AIR 2017 SC 2161 (three-Judge Bench); Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Sadhu Saran Singh Vs. State of UP, (2016) 4 SCC 357; Kripal Singh Vs. State of Haryana, AIR 2013 SC 286. The evidence of police or official witness cannot be rejected merely on the ground that they are the departmental servants. The only caution has to be taken that their evidence should be considered that their evidence should be accepted after a careful scrutiny. The evidence cannot be thrown away on the ground that they are the official witnesses.

15. In Pramod Kumar Vs. State (GNCT) of Delhi, AIR 2013 SC 3344, it has been held that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. Here the role of the evidence of the Food Inspector is at par to a police personnel who acts in different criminal cases. Thus, this Court is of the conclusion that no benefit under Section 10(7) of the Act can be extended to the accused.

16. The revisionist had taken second ground that when the fatty substances was 42% in that case there was deficiency of 7.9% of non-fatty substance. The inference would be that no water was added to the milk. As it may be a case of non-proper feeding of the cows or the report of public analyst is false.

17. In this regard it has been proved by the evidence available on record that the notice was served upon the revisionist and he had an opportunity to get the sample re-examined from the central laboratory. But even after getting the notice the revisionist did not try to get the sample re-examined from the central laboratory, therefore, it cannot be said that the report of public analyst was incorrect.

18. So far as the argument for ignoring the 7% less non-fatty substance is concerned, in this regard no relevant law could be produced by the revisionist that if fatty substances are higher and in that case if non-fatty solids are found 7% less than the prescribed limit, it would not be considered as adulteration of water in the cow milk. It cannot be proved that the cow was not properly feeding, therefore, non-fatty substance was found 7% less than the prescribed limit.

19. The trial court and the appellate court has not accepted the defence that the alleged milk was not for sale but it was for the purposes of marriage as no date of marriage, name of the bride could be placed before the court. No pili parchi or marriage card could be produced. In such a situation the trial court and the appellate court has rightly rejected the defence version that the milk was not for the sale but it was for the purposes of marriage.

20. Thus, on the basis of above discussion, this Court is of the view that there is no irregularity or illegality in the finding of the trial court and the appellate court as well. Therefore, the revision lacks merit and is liable to be dismissed so far as the conviction of the accused is concerned.

21. Now come to the question of sentencing. In this case it has been proved that the applicant was below the age of 18 years at the time of incident. At that time the age of the juvenality was 16 years. There is no previous criminal antecedents of the accused. Though on the date of conviction by trial court, the accused had crossed 18 years of his age but at the time of incident he was aged about 18 years. When such a plea had been taken by the accused, it was the duty of the court and the prosecution to prove that at the time of incident, the accused was above the age of 18 years.

22. In 1980 Section 20AA has been inserted in the Food Adulteration Act which reads as under:-

"20AA. Application of the Probation of Offenders Act, 1958 and section 360 of the Code of Criminal Procedure, 1973.--Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age."

23. From perusal of Section 20AA of the Act it is crystal clear that if an accused is within the age of 18 years, he may be set free on probation for his good conduct rather to send him to jail. According to this Court, the general principle of law is that the age of the accused would be considered at the time of the incident. When at the time of the incident the accused was not above the age of 18 years, he may be benefited by the provisions of probation of Offenders Act. In this case the convicted revisionist had already deposited the fine of Rs.1,000/- to the Government Exchequer and he has also served 22 days before the revision was instituted in the Court. Even during the pendency of this revision the accused was arrested and has served few days in jail.

24. Considering the fact that at the time of incident the revisionist was not above the age of 18 years and that there is no pre or post criminal antecedents against him. Section 20AA of the Act does not bar this Court to tender the benefit of probation to the revisionist about 38 years have been elapsed. No useful purpose would be served if the accused is sent to jail to serve rest of the sentences, in such circumstances, therefore, this revision is liable to be decided accordingly.

O R D E R

25. The revision is partly dismissed so far as the conviction under Section 7/16 of the Prevention of Food Adulteration Act is concerned.

26. The sentence is modified. It is directed that the revisionist convict Sukhi would remain on probation to maintain good conduct for one year from the date of execution of the personal bond, undertaking and two surety bonds before the District Probation Officer, Bareilly. If he does so, he shall not be sent to jail and he shall remain on probation for one year otherwise he would be summoned by the Additional Chief Judicial Magistrate concerned who would be exercising power with regard to the economic offences, to serve rest of the sentence.

27. A copy of this judgment alongwith Lower Court record be also sent to A.C.J.M, Bareilly, having jurisdiction of the Economic Offences.

Order Date :- 11.10.2023.

Vinod./Shahroj.