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Allahabad High Court · body

1979 DIGILAW 926 (ALL)

Ram Dass v. State

1979-08-29

M.MURTAZA HUSAIN

body1979
JUDGMENT M.M. Husain, J. - Ram Dass Appellant was committed to Sessions by the C. J. M. Kheri for standing his trial u/s 7/16 Prevention of Food Adulteration Act. The Sessions Judge through his order dated 7-6-77 passed in S. T. No. 52 of 1977, held the Appellant guilty u/s 7/16(1)(a) of the Act and sentenced him to undergo R. I. for one year, and to pay a fine of Rs. 2000. In default of payment of fine he was ordered to undergo R.I. for a further period of one year. 2. The facts of the case, which may be taken to be undisputed for the purposes of this appeal, are that there was a country-liquor shop in the town of Mailani in the district of Kheri at the time of occurrence. Liquor at that shop could be sold only by the persons to whom contract was given by the U. P. Government and they too could sell only that liquor which was supplied to them from the Warehouse of the Excise Department of the Government after getting the same prepared by various distillaries. In the year 1975-76 the contractors of that shop, on behalf of the Government, were three persons, namely Sia Ram, Chhotey Lal and Raj Kumar. The Appellant Ram Dass was the salesman at that shop on behalf of the said contractors. At about 4 p.m. on 30-10-75 Sri A. C. Vibhao P. W. 2, who was then Food Inspector of Mailani, went to the aforesaid liquor shop. He had earlier received a complaint that adulterated liquor was being sold upon that shop. Ram Dass Appellant was at the shop when the Food Inspector went there. Three sealed bottles of coloured liquor, each of 250 gms., were purchased by A. C. Vibhao from the Appellant after giving prescribed notice to him and making payment of the due price of those bottles. The Food Inspector sealed those bottles in accordance with the rules and handed over one bottle to the Appellant. One of the remaining two bottles was sent to the Public Analyst, who opined that the sample was coloured with an unpermitted coal tar dye, namely orange II (colour index No. 15510 of 1956). After the receipt of that report sanction from District Medical Officer of Health was obtained and the Appellant was prosecuted. One of the remaining two bottles was sent to the Public Analyst, who opined that the sample was coloured with an unpermitted coal tar dye, namely orange II (colour index No. 15510 of 1956). After the receipt of that report sanction from District Medical Officer of Health was obtained and the Appellant was prosecuted. The learned C. J. M., in whose court the complaint was filed, found the case to be a serious one and committed it to Sessions. The Appellant pleaded not guilty to the charge framed against him by the learned Sessions Judge. He asserted that the bottles taken from his shop by Food Inspector A C. Vibhao were brought to his shop from the Government Warehouse of Lakhimpur and those bottles were sold to the Food Inspector in the same condition in which the same were brought from the said warehouse. R.N. Srivastava, Excise Inspector was examined by the Appellant in his defence. 3. The learned Judge held that it could not be believed that the liquor coloured with unpermitted coal tar dye would be supplied to liquor shops from the State Warehouse and the defence provided by Section 19(2) of the prevention of Food Adulteration Act was not available to the Appellant, because he had failed to prove that the bottles purchased from his shop by the food Inspecter were in same condition in which the same were brought from the warehouse of the State Government. Consequently the learned Sessions Judge convicted and sentenced the Appellant as aforesaid. 4. It has already been remarked above that all the relevant facts of the case are undisputed. The only controversy in the case under appeal is whather or not the bottles purchased from the Appellant's shop by the Food Inspecter were brought to his shop from the State Warehouse in the same condition in which those bottles were sold to the Food Inspector, and on that account the defence provided by Section 19(2) of the Act was available to the Appellant. 5. Section 19(2) of the Prevention of Food Adulteration Act reads:(sec tion quoted--Editor). 6. The above provision of law came up for interpretation before their Lordships of the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another, AIR 1971 SC 2346 . 5. Section 19(2) of the Prevention of Food Adulteration Act reads:(sec tion quoted--Editor). 6. The above provision of law came up for interpretation before their Lordships of the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another, AIR 1971 SC 2346 . Their Lordships laid down that: By Sub-section (2) of Section 19, even in respect of the absolute offence, the Parliament has enacted that on proof of certain facts, criminal liability will be excluded. Thereby a vendor is not deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food from a duly licensed manufacturer, distributer or dealer in a case where a licence is prescribed for the sale thereof and in any other case from any manufacturer, distributer or dealer with a written warranty in the prescribed form, provided the article of food while in his possession was properly stored and that he sold it in the same state as he Purchased it. In the present case the Appellant asserted in his statement recorded u/s 313 Cr. P C. that he could sell only that liquor which was supplied to his shop from the State Warehouse, and that the three bottles purchased from his shop by the Food Inspector at the time of occurrence were brought to his shop from the State Warehouse of Lakhimpur and were stored in the same condition in which the same were brought from the said ware-house. 7. The learned Sessions Judge attached absolutely no value to that statement of the Appellant because in his opinion it could not amount to a piece of evidence whereby the burden, which lay upon him u/s 19(2) of the prevention of Food Adulteration Act, could stand discharged. Their Lordships of the Supreme Court have in Hate Singh Bhagat Singh Vs. State of Madhya Bharat, AIR 1953 SC 468 observed that: The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the Place of what in England and in America he would be free to state in his own way in the witness box. They have to be received in evidence and treated as evidence and be duly considered at the trial. They have to be received in evidence and treated as evidence and be duly considered at the trial. This means that they must be treated like any other piece of evidence coming from the month of a witness and matter in favour of the accused must be viewed with asmuch deference and given as much weight as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable and accords with the probabilities unless the prosecution can prove beyond reasonable doubt that it is false. 8. Again in State of Maharashtra Vs. Laxman Jairam, AIR 1962 SC 1204 their Lordships observed: The object of examination u/s 342, Code of Criminal Procedure (corresponding to Section 313 of the new Code) is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. In this authority the statement of the accused was considered to be sufficient evidence for discharging the onus which was placed on him by Section 66(2) of Bombay Prohibition Act No. 25 of 1949. The statement made by the Appellant u/s 313, Code of Criminal Procedure in the present case was all the more acceptable because it finds support by the statement of the Food Inspector A C. Vibhao and also by that of Excise Inspector R.N. Srivastava examined by the Appellant in his defence. 9. A. C. Vibhao, Food Inspector (P. W. 2) admitted that the liquor which could be sold at Appellant's shop was that which was supplied to that shop from the Government Warehouse. He was specifically asked during cross-examination whether or not the lids of the bottles purchased by him from Appellant's shop bore some inscription. He admitted that something was written upon the lids of those bottles but he could not tell what that writing was. In receipt Ex. He was specifically asked during cross-examination whether or not the lids of the bottles purchased by him from Appellant's shop bore some inscription. He admitted that something was written upon the lids of those bottles but he could not tell what that writing was. In receipt Ex. Ka 5, which was obtained by the Food Inspector from the Appellant for payment of the price of purchased bottles, it is clearly mentioned that "three sealed bottles of coloured liquor were purchased by the Food Inspector." There is nothing in that receipt to show that the seals of those bottles were tampered with, or their seals were replaced after the removal of the original ones. 10. R.N. Srivastava, Excise Inspector examined by the Appellant in his defence as D. W. 1 proved that the bottles which are supplied to the contractors of liquor shops from the State Warehouse bear inscription upon their lids showing the name of the distillery where the liquor was prepared and also the fact that the same were supplied by Excise Department of U.P. Government. He also stated that all liquor supplied to Mailani shop used to be coloured liquor. 11. After going through the aforesaid entire evidence there is no escape from the conclusion that the bottles of liquor purchased by the Food Inspector from Appellant's shop at the time of occurrence were the same coloured liquor bottles which were supplied to Appellant's shop from the State Warehouse of U.P. Government. A copy of G. O. No. 147-158 dated 10-3-78 has been filed in this Court on behalf of the Appellant which shows that liquor used to be coloured by distillaries for supply to contractors under the instructions of the Government. Obviously, therefore, coloured liquor was supplied at Appellant's shop by the Government Warehouse and the same was purchased by the Food Inspector with intact seals. There is consequently no reason to reject the Appellant's contention to the effect that he had sold bottles of coloured liquor to the Food Inspector in the same condition in which the same were supplied at his shop by the State Warehouse. The protection afforded by Section 19(2)(i) of Prevention of Food Adulteration Act is thus fully available to the Appellant. In my opinion the Appellant's conviction ordered by the trial court is wholly unjustified. 12. The protection afforded by Section 19(2)(i) of Prevention of Food Adulteration Act is thus fully available to the Appellant. In my opinion the Appellant's conviction ordered by the trial court is wholly unjustified. 12. I, therefore, allow this appeal and set aside the conviction and sentence of the Appellant ordered by the trial court. The Appellant is on bail. He need not surrender. His bail bonds are discharged. Fine, if already paid by the Appellant shall stand refunded to him.