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1976 DIGILAW 811 (ALL)

Rakesh Kumar v. State of U. P

1976-11-26

K.C.AGRAWAL

body1976
JUDGMENT K.C. Agrawal, J. - This revision is directed against the judgment of the learned Sessions Judge, Kanpur, dated 24.10.1972 dismissing the appeal filed by the applicants. The said appeal was filed by them against the conviction under sections 7/16 of the Prevention of Food Adulteration Act (briefly stated as 'the Act'), passed by the Magistrate. The Magistrate gave the benefit of Section 4 of the First Offenders' Probation Act to Rakesh Kumar, applicant No. 1, where as Ram Kumar, applicant No. 2, was sentenced to six months' R.I. and a fine of Rs. 1000/- in default, to undergo further R.I. for four months. 2. The case of the prosecution, briefly, is that on 6.11.1971 T.P. Pandey, Food Inspector, went to a shop in premises No. 104/16, Nala Road, Sisamau, police station Bazaria, Kanpur. He found Ram Kumar, applicant No. 2, sitting in the shop. He purchased 375 Grams of Deshi Ghee for sample on payment of Rs. 5.12. p. One of the sample bottles was, thereafter, sent to the public analyst, who sent the report to the effect that the sample was adulterated and was below the prescribed standard. After necessary formalities had been complied with, the applicants were challenged and prosecuted. To support its case, the prosecution produced the Food Inspector and other witnesses in whose presence the sample was obtained. The applicants pleaded not guilty. 3. The Magistrate, however, was of the opinion that the prosecution had established that the Ghee taken from the shop was adulterated, and that the applicants were liable to be convicted for the offence under Sections 7/16 of the Act. It may be stated that according to the case of the prosecution, which was not denied by Rakesh Kumar, applicant No. 1 he was the owner of the shop, whereas Ram Kumar, applicant No. 2, was working as his salesman. Since Rakesh Kumar was aged about 11-12 years, the Magistrate gave the benefit of Section 4 of the First Offenders' Probation Act to him, but finding that Ram Kumar was guilty of the offence of having sold adulterated Ghee, convicted him for the said offence and sentenced him for the term, mentioned above. Against their conviction and sentence, both the applicants preferred an appeal before the learned Sessions Judge. The learned Sessions Judge endorsed the findings given by the Magistrate and thus maintained the sentence awarded to them. Against their conviction and sentence, both the applicants preferred an appeal before the learned Sessions Judge. The learned Sessions Judge endorsed the findings given by the Magistrate and thus maintained the sentence awarded to them. Aggrieved, the present revision has been filed by the applicants. 4. Two points were urged by the learned counsel for the applicants assailing the judgment of the Magistrate. The point No. 1 was that as required by Sub-section (2) of Section 367 Cr. P.C. the Magistrate was required to specify the offence of which and the section of the Food Adulteration Act under which the applicants were convicted. The counsel urged that in the instant case as the Magistrate did not comply with this mandatory Provision of the Code of Criminal Procedure, the judgment rendered by him against the applicants is liable to be set aside being illegal. The submission is devoid of merits. It is no doubt true that Sub-section (2) of Section 367 Cr. P.C. requires a court to mention and specify the offence of which and the section of the Indian Penal Code or other law under which the accused is convicted, as well as the punishment which he is to be awarded. But, to my mind, the omission to do so in a case is not fatal. The requirement of Section 367 Cr. P.C. cannot be over emphasised. It has to be seen as a whole whether any prejudice is caused to the accused on account of the non-mention of requirements provided for by Sub-Section (2) of Section 367 Cr. P.C. If the accused had an opportunity of a fair trial, and that he could not otherwise raise any question against the proceedings of the manner in which the case was conducted by the Magistrate, he cannot escape the liability merely by pointing out that some formalities of a very technical nature had not been complied with. I have per used the record and from the offence of which they were charged. Accordingly, the omission to comply with the provisions of sub-section (2) of Section 367 Cr. P.C. cannot result in the acquittal of the applicants. Moreover, the applicants had filed an appeal before the learned Sessions Judge. The judgment of the Magistrate has now merged with that of the learned Sessions Judge. Accordingly, the omission to comply with the provisions of sub-section (2) of Section 367 Cr. P.C. cannot result in the acquittal of the applicants. Moreover, the applicants had filed an appeal before the learned Sessions Judge. The judgment of the Magistrate has now merged with that of the learned Sessions Judge. The appellate court's judgment has made clear that the applicants had full knowledge and understanding of the offence of which they were charged. Accordingly, the first submission made by the learned counsel for the applicants has no substance. 5. The second submission made by the learned counsel for the applicants was that the Ghee, of which the sample was taken by the food Inspector, was contained in a small tin, and that was indicative of the fact that it was not meant for sale to the public. According to him, even if it was adulterated, the applicants could not be convicted of the offence under Sections 7/16 of the Act. The argument advanced by the learned counsel is not acceptable inasmuch as the Ghee, whether it was contained in a small tin or a big tin, is not conclusive of the controversy, if it is otherwise found that the same was meant for sale to the public. In the present case, the two courts below have gone into the evidence and found as a fact that the Ghee was meant for sale to the public. This finding given by the two courts below is one of fact and it is not possible to interfere with the same. The second submission, therefore, also fails. 6. These were the only two points urged by the learned counsel for the applicants in support of the case of Ram Kumar, applicant No. 2. 7. So far as Rakesh Kumar, applicant No. 1, is concerned, it was pointed out that he was aged about 11-12 years at the time of commission of the offence, and that he should have been given the benefit of Section 83 of the I.P.C. S. 83 of the I.P.C. provides that nothing is an offence which is done by a child above 7 years of age and under 12 years, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct. In order to avail the benefit of section 83 I.P.C. it is necessary to find as to whether the applicant No. 1 had attained sufficient maturity of understanding to judge the nature and consequences of his conduct, On the statement made by the applicant No. 1 on 3-6-1972 to the effect that Ram Kumar was running his shop, he was found by the learned Sessions Judge as meaning or establishing that the applicant No. 1 had attained sufficient Maturity of understanding to judge the nature and consequences of his conduct. To my mind, this finding of the learned Sessions Judge is not correct. Merely because Rakesh Kumar stated that Ram Kumar was his servant and was selling Ghee in his shop, cannot be determinative of the requirement of Section 83 I.P.C. A boy, such as the applicant No. 1, could even if be imputed the knowledge of being knowing that the shop belonged to him, could still not be imputed the motive and nature of the consequences of the goods sold in the shop. From these facts, it was not possible to infer and find that the applicant No. 1 also knew that the Ghee, which was being sold at the shop, was adulterated and its consequences. Accordingly, neither was the learned Sessions Judge nor the Magistrate right in depriving the applicant No. I of the benefit of Section 83 of the Indian penal Code. The learned Sessions Judge should have acquitted the applicant No. 1 instead of confirming the conviction passed by the Magistrate under Section 7/16 of the Act. 8. In the result, the revision is partly allowed. The conviction and sentence of Rakesh Kumar, applicant No. 1, is set aside. He is on probation, and need not surrender. His bonds and Sureties are discharged. The order of conviction and sentence passed against Ram Kumar, applicant No. 2, is maintained. He is on bail. He shall be taken into custody forthwith to serve out the sentence awarded to him. His bail bonds are cancelled.