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2005 DIGILAW 1588 (RAJ)

Laxmi Narayan v. State of Rajasthan

2005-05-27

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This criminal revision under Section 397 read with Section 401 of the CrPC has been filed against the Judgment and order dated 03.08.1995 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Sawai Madhopur in Criminal Appeal No. 35/94 (99/94) -Laxminarayan vs. State, whereby the learned Special Judge, SC/ST cases has dismissed the appeal filed by accused-petitioner and affirmed the conviction and sentence awarded to the accused-petitioner under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short, hereinafter referred to as the Act) by learned Chief Judicial Magistrate, Swai Madhopur vide his Judgment & order dated 22.09.1994 passed in Criminal Case No. 230/88 - State vs. Laxminarayan sentencing the accused-petitioner to six months simple imprisonment with fine of Rs.1,000/-, in default thereof to further suffer imprisonment for a period of 25 days. 2. Briefly stated, the facts necessary to be noticed are that on 10.01.1988 at about 9 AM, Jagdish Narayan, Food Inspector, Primary Health Centre, Bhagwatgarh found the accused-petitioner selling milk in Swai Madhopur and on suspicion of selling adulterated milk, after disclosing his identity purchased 750 ml. milk paying Rs.2.40 to the accused-petitioner. The milk so purchased was filled in three clean and dry bottles equally as per the procedure. One of the bottles of sample was sent to the Public Analyst and on receiving report from the Public Analyst that the sample was not upto mark as per the prescribed standard and was adulterated, after obtaining sanction for prosecution from the Local Health Authority, a complaint for the offence under Section 7/16 of the Act was filed inter alia stating that the accused-petitioner was selling milk in a filthy pot, which did not mention the type of milk and that he was not having any licence to sell the milk. Earlier to that a copy of the inspection report was sent to the accused-petitioner but on his refusal the same was sent personally. 3. In pre-charge evidence, statement of PW. 1 Jagdish Narayan was recorded and a charge under Section 7/16 of the Act was framed and read over to the accused-petitioner. Accused-petitioner denied the charge and claimed trial. 4. In support of its case, prosecution examined PW. 1 Jagdish Narayan, PW. 2 Vijendra Kumari & PW. 3 Gajanand Sharma and exhibited several documents. In pre-charge evidence, statement of PW. 1 Jagdish Narayan was recorded and a charge under Section 7/16 of the Act was framed and read over to the accused-petitioner. Accused-petitioner denied the charge and claimed trial. 4. In support of its case, prosecution examined PW. 1 Jagdish Narayan, PW. 2 Vijendra Kumari & PW. 3 Gajanand Sharma and exhibited several documents. It was the plea of accused-petitioner that he had not brought the milk for sale but the same was for some patient in the hospital. No evidence was produced in defence. 5. The learned trial court, after hearing both sides, vide its Judgment and order of conviction dated 22.09.1994, convicted and sentenced the accused-petitioner as indicated hereinabove. 6. Aggrieved by the said Judgment and order of the learned trial court dated 22.09.1994, the accused-petitioner preferred an appeal before the Court of Sessions, which came up for hearing before the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Swai Modhpur, who vide its Judgment and order dated 03.08.1995 dismissed the appeal after confirming the conviction and sentence awarded to the accused-petitioner. 7. Being dissatisfied with the Judgment s of Courts below, the accused-petitioner has filed this revision petition. 8. Heard learned Counsel for the accused-petitioner Mr. Sunil Jain and the learned Public Prosecutor appearing for State Mr. B. Chhaba and also carefully scrutinized the material available on record. 9. It was contended by learned Counsel for the accused-petitioner that the Judgment s of Courts below are contrary to the facts available on record and the law applicable as such the conviction and sentence of accused-petitioner deserves to be set aside. He submitted that the sample of milk was taken without properly mixing the entire milk which fact does not find mention either in checking report nor in the complaint, as such on this basis conviction cannot be made. He further submitted that there are material contradictions in the statements of prosecution witnesses, who are interested witnesses and have deposed beyond the record of case. He also submitted that the sanction for prosecution was issued without application of mind and that there is delay of six months in filing the complaint which has prejudiced the interest of accused-petitioner. He further submitted that there are material contradictions in the statements of prosecution witnesses, who are interested witnesses and have deposed beyond the record of case. He also submitted that the sanction for prosecution was issued without application of mind and that there is delay of six months in filing the complaint which has prejudiced the interest of accused-petitioner. Furthermore, it was submitted that the incident is alleged to be of 03.02.1988 and information to the accused was sent on 03.07.1989 and 19.08.1989 i.e. after about six months and for this much period sample of milk cannot be preserved, as such the right of the accused-petitioner to get the sample rechecked was infringed. The learned counsel submitted that this was the first offence of the accused-petitioner and in case the findings of guilt even if assumed to be proved then the petitioner be given the benefit of probation. In the last, learned counsel prayed for taking lenient view submitting that the accused-petitioner is the only earning member of his family who was going to the hospital for delivering milk to his relative patient and same was not for sale, and if the sentence awarded is sustained his whole family will be ruined. He relied on a decision rendered by Bombay High Court in State of Maharashtra vs. Laxman N. Khamkar, 1977 (1) PFA Cases 13, and on a case of Allahabad High Court in Sirajuddin vs. State, 1982 (I) PFA Cases 271. 10. On the other hand, learned Public Prosecutor supported the case of prosecution and submitted that the courts below have properly appreciated the evidence, which is sufficient to hold the accused-petitioner guilty and liable for punishment. 11. I have considered the rival submissions made before me and carefully perused the impugned Judgment s. 12. First, it is to be seen that in the instant case that the contentions raised before me on behalf of accused-petitioner with regard to the sample not being properly taken and the prosecution having failed to prove its case are not tenable for the reason that PW. 1 J.N. Saroya the Food Inspector had apprehended the accused-petitioner and purchased 750 ml. Milk from him on 10.01.1988. 1 J.N. Saroya the Food Inspector had apprehended the accused-petitioner and purchased 750 ml. Milk from him on 10.01.1988. The milk was equally filled in three bottles and one of the bottles of sample was sent to the Public Analyst whose report indicated that the sample was adulterated and it did not conform to the standards prescribed, therefore, there appears to be no substance in the argument. 13. The another contention of the learned counsel that there has not been a proper sanction to prosecute him in the matter is also not tenable for the reason that PW. 1 J.N. Saroya has stated that after finding that the milk was adulterated and it did not conform to the prescribed standards, the entire record was sent to the Local Health Authority, Karauli on 29.03.1998 for perusal, who after perusal of record gave his acceptance to file challan before a competent court and after obtaining sanction challan was filed. This witness has proved sanction Exhibit P/13. A perusal of Exhibit P/13 indicates application of mind by the Local Health Authority and therefore in my considered opinion the argument of the learned counsel being untenable falls flat. 14. The other important aspect to be considered in the matter is as to whether the accused had an opportunity to get the sample rechecked? 15. In the instant case, the incident is alleged to have taken place on 10.01.1988 when milk was purchased from the accused-petitioner. The purchased 750 ml milk was divided into three bottles equally and it was sent for sanction on 20.03.1988. Thereafter, sanction was received on 30.05.1988 and the complaint was filed in the present matter on 20.06.1988. The report with regard to the sample being adulterated was given to the accused on 19.01.1989. Thus, it appears that the sample being primary food cannot not be preserved for long and it gets unfit for examination after 3-4 months. It is also correct that in the instant case the accused has not moved the Court for getting the preserved sample rechecked but that fact itself is not sufficient to draw a conclusion that since the accused has not made an application his case has not been prejudiced. It is also correct that in the instant case the accused has not moved the Court for getting the preserved sample rechecked but that fact itself is not sufficient to draw a conclusion that since the accused has not made an application his case has not been prejudiced. It was the duty of the prosecution to have atleast filed the challan and give report to the accused petitioner within a reasonable time so that it could be said that accused had an opportunity to make a request to the Court for getting the sample rechecked but as would appear the report of the Public Analyst was handedover to the accused-petitioner only after 10 months and he in fact had no chance to get the sample rechecked. 16. In this view of the matter, I find that the case of the accused stand prejudiced and he is entitled to be given the benefit. 17. In view of foregoing discussions, the revision petition deserves to be accepted and the Judgment s of conviction and orders of sentence passed against the accused-petitioner are liable to be set aside. 18. In the result, the criminal revision petition is allowed. The Judgment of conviction and sentence passed by the Chief Judicial Magistrate, Sawai Madhopur and affirmed by the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Swai Madhpur in Criminal Appeal No. 35/94 (99/94) Laxminarayan vs. State is hereby set aside. The accused petitioner is acquitted of the offence to which he has been convicted and sentenced. He is on bail. He need not to surrender.