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2003 DIGILAW 14 (AP)

BHOGI UMA MAHESWARA RAO v. State Of A. P.

2003-01-06

DALAVA SUBRAHMANYAM

body2003
DALAVA SUBRAHMANYAM, J. ( 1 ) THE revision petitioner-accused filed the revision against the judgment of conviction and sentence in C. C. No. 78 of 1992 dated 8. 11. 1996 on the file of the Judicial First Class Magistrate, Palakonda as modified in Crl. Appeal No. 83 of 1996 on the file of the Sessions Judge, Srikakulam. ( 2 ) THE brief facts of the case are as follows: ( 3 ) THE Food Inspector of Veeraghattam Grama Panchayath laid a complaint against the accused under Sections 16 (1) (a) (ii), 7 (i) and (v) and 2 (ia) (a) of the Prevention of Food Adulteration Act, 1954 (for short the Act ) alleging that on 13. 12. 1991 at about 10. 30 a. m. , while the accused was transacting business in his kirana shop, the complainant inspected the shop and found the Sunflower refined oil in 2 kg. plastic tin which is exposed for sale to the public and suspected the same to be adulterated, purchased 375 grams of sunflower refined oil and obtained receipt and took sample as per the procedure contemplated under the act and Rules. The sample bottle was sent to the public analyst who opined that it was adulterated and subsequently a complaint was laid. On behalf of the prosecution PWs 1 to 5 were examined and Exs. Pl to P13 were marked. The Food and Sanitary inspector, Veeraghattam Panchayath is examined as PW-1. The independent witness pw2 turned hostile. PW-3 G. Appa Rao, sanitary Maistry corroborated the evidence of PW-1. PWs 1 and 3 deposed with regard to the inspection of the shop and taking sample etc. PW 4 is the Executive Officer, gramapanchayath who received the sample and PW-5 is another Executive officer, Gramapanchayath who after receipt of the report of public analyst gave notice to the accused. The learned Magistrate after appreciating the entire evidence came to the conclusion that the complainant proved the offences alleged against the accused beyond reasonable doubt and accordingly the accused was convicted and sentenced. Aggrieved against the judgment of conviction and sentence, the accused filed a Criminal appeal No. 83 of 1996 on the file of the sessions Court, Srikakulam and the learned sessions Judge modified the conviction for the offence under Section 16 (1) (a) (i) of the Act and sentenced him to suffer simple imprisonment for three months and to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for one month. ( 4 ) AGGRIEVED against the judgment, the revision petitioner filed the revision contending that the Courts below committed error in relying on the evidence of PWs 1 and 3. Both the Courts ignored the fact that the mandatory provisions under Section 13 (2) and 11 (4) of the Act were not complied. For the abovesaid reasons, the revision may be allowed. ( 5 ) NOW the point for consideration is whether the Courts below committed error in convicting and sentencing the accused under the Prevention of Food Adulteration act and if so whether the revision is liable to be allowed? ( 6 ) THE revision petitioner-accused is a petty kirana merchant and while he was transacting his business on 13. 12. 1991 at about 10. 30 a. m. , the Food Inspector along with his staff and mediators inspected the shop and took sample of Sunflower refined Oil which was later found to be adulterated as opined by the Government public Analyst. PW1 is the Food Inspector and PW3 is the Sanitary Maistry who deposed with regard to the inspection, taking of sample and receipt of opinion and later sending notice to the accused and filing the complaint. The evidence of PWs 1 and 3 is cogent and convincing with regard to the alleged offence. The learned Advocate appearing for the accused contended that the mandatory provisions of Section 13 (2) was not complied with. As seen from Ex. P13, a notice was served on the accused and therefore, there is no substance in the contention that the mandatory provisions of section 13 (2) of the Act was not complied with. It is also further contended that the provisions of Sections 10 (4) and 11 (4) of the Act were also not complied. Under section 10 (4) of the Act, if any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away the said article. In the instant case he did not seize the article except taking the sample of the food article. Therefore it cannot be said that the provisions of the said Section were not, complied with. For the abovesaid reasons both the Courts have not committed any irregularity and therefore no interference is necessary. In the instant case he did not seize the article except taking the sample of the food article. Therefore it cannot be said that the provisions of the said Section were not, complied with. For the abovesaid reasons both the Courts have not committed any irregularity and therefore no interference is necessary. ( 7 ) THE learned Advocate appearing for the revision petitioner further contended that the alleged offence was committed on 13. 12. 1991 and the revision petitioner has been attending the Courts for all these years and he suffered mental agony. It is also brought to the notice that the revision petitioner has undergone a portion of sentence of imprisonment after the judgment of the lower appellate Court and before obtaining the order of suspension of sentence from this Court. Considering the fact that the revision petitioner was a petty kirana merchant and that the offence was committed more than 10 years ago and the matter was pending all these years, sentence of imprisonment may be modified into a sentence already undergone and in addition to fine. ( 8 ) IN the result, the revision petition is dismissed confirming the conviction but the sentence of imprisonment for three months is modified into the period of sentence already undergone and in addition to the fine paid by the revision petitioner in the lower Court, he shall pay an additional fine of Rs. 1000/- (Rupees one thousand only) in default to suffer simple imprisonment for a period of one month. The fine amount shall be paid within a period of four weeks from the date of receipt of the copy of this order.