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1980 DIGILAW 1229 (ALL)

Ghasita v. State of U. P

1980-12-12

MURLIDHAR

body1980
JUDGMENT Murlidhar, J. - Revisionist Ghasita has been convicted under Section 7/16 Prevention of Food Adulteration Act for selling adulterated cows milk and sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000/- in default further rigorous imprisonment for three months and also for breach of R.I. 50 by selling milk without a licence and sentenced to a (rue of Rs. 100/- in default rigorous imprisonment for one month by the two courts below. 2. The case was that the applicant was found selling milk and a sample was taken at about 7.00 A.M. on 16-12-1977 near Dhadheru kiln. Dhadheru is the village to which the applicant belongs. His case was that the inspector had taken Rs.200/- from him for securing a licence and on his demand for the same had secured his thumb impression alleging that these formalities were required for getting the licence. The courts below disbelieved this defence. 3. The learned counsel tried to reopen the question of belief of defence version stressing the evidence of Mohd. Yakub as a defence witness when admittedly he was a witness to the sample taking. I am afraid the rejection of the defence version is a finding of fact based on cogent grounds for reopening which in revision no sufficient justification has been pointed out. 4. It was next contended that there has been a breach of Section 10(7) of the Act inasmuch as two independent witnesses were not secured by the Food Inspector. This is not correct. Mohd. Yakub and Sahid are shown as two witnesses to the sample taking and the inspector has explained that the Munim and a servant of the kiln near which the sample was taken having declined these persons were made witnesses. There was, therefore, compliance of Section 10(7) of the Act. It is not necessary that the witnesses should be examined in court. The fact of non-examination of such witnesses or their examination by the defence in support of the defence version pertains to the area of assessment of evidence and does not detract from the position that there has been compliance of Section 10(7) of the Act. 5. It was also urged that there has been breach of Section 13(2) Prevention of Food Adulteration Act. 5. It was also urged that there has been breach of Section 13(2) Prevention of Food Adulteration Act. The inspector in this case proved that he had intimated the health authority on 12-3-78 that he had launched a prosecution against the accused in the court of VII Addl. Munsif-Magistrate on 11-3-78. Also that the authority office forwarded intimation Ex. Ka 10 alongwith an attached copy of the analyst's report to the accused by registered post. This Ex Ka 10 is dated 16-3-78 and from an endorsement appears to be the copy of the intimation marked to the food inspector The copy of the accused's acknowledgement receipt dated 31-3-78 about receipt of the registered cover has also been filed. The acknowledgement is properly addressed and the thumb impression duly attested by one Liyakat Ali. It was urged that the copy of the analyst's report suggested to have been attached to the intimation Ex. Ka 10 is not before the Court. Secondly that the thumb impression of the revisionist on the acknowledgement has not been proved by expert evidence. I am not impressed by these arguments. The accused on being asked about the despatch of analyst's report per intimation Ex. Ka 10 made a general denial in answer. In my opinion in these circumstances, the presumption of genuineness of Ex. Ka 10 and 11 as well as that in the normal course the enclosure must have accompanied the intimation can legitimately be made. The courts have rightly held that there is no want of compliance of Section 13 (2) in the present case. 6. Lastly the sanction was attacked The proposition that a sanction is not formality and there has to be application of mind by the sanctioning authority is indisputable. There is however nothing to show that such is not the case with regard to the sanction Ex. Ka 7 in the present case. The mere fact that it is on a typed draft at the back of the inspector's report Ex. Ka 6 giving all the facts and that it does not refer to the facts specifically using the general observation. Papers seen cannot show lack of application of mind. 7. The revision, therefore, fails and is hereby dismissed. The applicant who is on bail in pursuance of this Court's order, dated 21-7-i.O shall be got arrested forthwith to serve out this sentence according to law. Papers seen cannot show lack of application of mind. 7. The revision, therefore, fails and is hereby dismissed. The applicant who is on bail in pursuance of this Court's order, dated 21-7-i.O shall be got arrested forthwith to serve out this sentence according to law. The stay order against the realisation of fine is also vacated.