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Allahabad High Court · body

1985 DIGILAW 696 (ALL)

Badam Singh v. State of U. P

1985-07-25

N.N.SHARMA

body1985
JUDGMENT N. N. Sharma, J. - This revision is directed against the order dated 13.9.1983 recorded by learned 3rd Addl. Sessions Judge, Farrukhabad who dismissed Criminal Appeal No. 372 of 1982 and affirmed the order of conviction under section 7/16 of Prevention of Food Adulteration Act of the revisionist by Sri V.K. Maheshwari, learned Vth Judicial Magistrate, Farrukhabad in Case No. 30 of 1981 dated 24.9.1982. The revisionist was sentenced to six months R.I. and a fine of Rs. 1,000 and in default of payment of fine revisionist was ordered to undergo three months R.I. 2. Briefly the prosecution story was that on 14.9.1978, Food Inspector Sri Raja Ram Verma found the revisionist carrying milk for sale in village Samdhan on Fariukhabad read at 9 a.m. The Food Inspector disclosed his identity by serving a notice in Form VI Ext. Ka-1 on revisionist who gave out the milk as buffalo milk. In presence of Anil Kumar 660 ml. milk on payment of Rs. 1.50 was purchased by the Food Inspector from revisionist vide receipt Ext. Ka-2 executed by the revisionist. After compliance of necessary `or maltiest, one phial of sample was sent to Public Analyst who found fat 5.3 per cent, and non-fatty contents 6.5 per cent. Milk was deficient in fat contents by 42 per cent, and non-fatty solids by 28 per cent vide report Ext. Ka-4 dated 5th September, 1978. All the necessary papers were laid before the Chief Medical Officer Sri S.N. Sahai by the Food Inspector who accorded requisite sanction, Ext. Ka-5. Sri Khusi Ram Varma. P.W. 2, on the direction of Chief Medical Officer sent a copy of the report of Public Analyst alongwith his letter Ext, Ka 8 to revisionist at his correct address through registered post vide Ext. Ka-7 to get the sample re-analysed by the Director of Central Food Laboratory under section 13(2) vide letter Ext. Ka-8. 3. Complaint was filed against the revisionist who denied the sale and sampling and the receipt of the letter of Chief Medical Officer and had nothing to add. 4. Prosecution examined the witnesses viz., Raja Ram Varma, Food Inspector, P.W. 1 who proved the aforesaid documents Exts. Ka-l to 7 and Sri Khusi Ram Varma, P.W. 2 who proved Exts. Ka-7 and Ka-8. 5. 4. Prosecution examined the witnesses viz., Raja Ram Varma, Food Inspector, P.W. 1 who proved the aforesaid documents Exts. Ka-l to 7 and Sri Khusi Ram Varma, P.W. 2 who proved Exts. Ka-7 and Ka-8. 5. Sri Khusi Ram Varma also brought the register of his office showing entry of the dispatch of the letter at the correct address of the revisionist at serial No. 802 on 27 2 1979. 6. Both the courts below believed the prosecution version and convicted and sentenced the applicant aforesaid. 7. On behalf of the revisionist it was pointed out that the conviction was not sustainable on the solitary testimony of the Food Inspector. However, there is nothing in the testimony of the Food Inspector to show that his statement was unreliable or was inconsistent, with the documentary evidence. All the aforesaid documents were prepared on the spot, vide a notice and receipt executed by revisionist himself. So the conviction is sustainable on testimony of Food Inspector alone, if his credibility was acceptable to the courts below. Ext. Ka-2 receipt shows that the sampling was done in presence of Anil Kumar vide Ext' Ka-2. The mere fact that Anil Kumar could not be produced by the prosecution cannot militate against the conviction of the revisionist. 8. The next contention was that the transaction cannot amount to sale as section 2, sub-clauses (xi) defines the premises as including any shop, stall or place where any article of food is sold or manufactured or stored for sale. In the instant case the salt took place on Samdhan Farrukhabad Road and so it was a place where the milk was sold by Badam Singh. 9. The next contention was that the section Ext. Ka-5 was accorded without application of mind. It was argued that the person who typed out the sanction was not produced. The Food Inspector was not definite about the date below the signature of Sri S.N. Sahai, Chief Medical Officer. However, in his statement Raja Ram Verma P.W. testified that all the papers were placed before the C.M.O. in his presence and he was acquainted with his signatures. He further testified that C.M.O. made a detailed enquiry from him about the fact of the transaction before according the sanction. There is statement of Food Inspector that the date below the signature of C.M.O. 27.i2 1978 was scribed by the doctor himself. He further testified that C.M.O. made a detailed enquiry from him about the fact of the transaction before according the sanction. There is statement of Food Inspector that the date below the signature of C.M.O. 27.i2 1978 was scribed by the doctor himself. So the sanction cannot be faulted. 10. The next contention was that the revisionist was denied the right of getting the sample re-analysed from the Director of Central Food Laboratory. This contention also is ruled out, in view of the statement of Khusi Ram Varma, P.W. 2, and letters Exts. Ka-7 and Ka-8, the mere fact that acknowledgement receipt was not on the record could not justify the inference that the registered letter which was posted by Khusi Ram at the correct address of the revisionist did not reach the addressee. A presumption arises under section 1 14 Illustrations (c) and (f) of the Indian Evidence Act that the letter which was duly posted at the correct address unless returned undelivered must have reached the addressee. So this contention also is ruled out. 11. The last contention was that the revisionist was a youthful offender and so the sentence should be reduced to the period already undergone, viz. one month and twenty-three days. This submission is not acceptable to me for the simple reason that benefit of Probation Act cannot be extended to such unsocial offences vide section 20, sub-clause (8) of the aforesaid Act, unless the person concerned was below is years of age. The minimum sentence has been imposed upon the revisionist by the Courts below and no reduction is possible. 12. Thus the revision is dismissed. The impugned order is affirmed, Let the revisionist surrender to Ins bonds forth with and taken into custody to serve out the sentence, viz. four months and seven days with fine. Interim order dated 20.10.1983 is vacated herewith. Sent the record at once to the Court below.