Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 271 (MP)

BANSILAL v. STATE OF MADHYA PRADESH

2006-02-17

A.K.SHRIVASTAVA

body2006
Judgment ( 1. ) THIS revision petition has been directed against the judgment of conviction and order of sentence passed by the Judicial Magistrate, 1st Class, mudwara (Katni), convicting the applicant under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "act") and sentencing him to suffer rigorous imprisonment for one year and fine of rs. 2,000/- , in default of payment of fine, further imprisonment for three months. The order of sentence has been partly modified by the Appellate court in appeal from one year rigorous imprisonment to six months rigorous imprisonment and fine of Rs. 2,000/-, and in default, further rigorous imprisonment for four months. ( 2. ) IN brief, the case of the prosecution is that the Food Inspector mr. M. A. Ansari (P. W. 1) took the sample of mixed milk of she-buffalo, cow and she-goat on 25-2-1981 at 12. 30 p. m. Thereafter, the same was sent to the public Analyst on 27-2-1981 where from the report was received on 17-3-1981. In the report, milk was found to be adulterated as a result of which, after having served notice prescribed under Rule 9-B of the Prevention of Food Adulteration Rules, 1955 (for short rules of 1955), charge sheet was filed along with report of the Public Analyst. The applicant was charged under Section 7/16 of the Act. ( 3. ) THE applicant abjured the guilt and pleaded complete innocence. In his statement, he submitted that no notice under Section 13 of the act was served on him. ( 4. ) IN order to bring home the charges, the prosecution examined two witnesses, namely, M. A Ansari (P. W. 1), Food Inspector, and Garib Das (P. W. 2), before whom it is said that sample of milk was obtained. In defence, the applicant did not choose to examine any witness. ( 5. ) THE Trial Judge, after appreciating oral and documentary evidence, came to the conclusion that the applicant did commit the offence of which he has been charged, eventually convicted the applicant and passed the sentences mentioned hereinabove. ( 6. In defence, the applicant did not choose to examine any witness. ( 5. ) THE Trial Judge, after appreciating oral and documentary evidence, came to the conclusion that the applicant did commit the offence of which he has been charged, eventually convicted the applicant and passed the sentences mentioned hereinabove. ( 6. ) FEELING aggrieved by the judgment of conviction and order of sentence, the applicant preferred an appeal before the learned IInd Additional sessions Judge, Katni, who, by the impugned judgment, confirmed the order of conviction, however, interfered in the quantum of punishment and in place of one year rigorous imprisonment, he has been ordered to suffer rigorous imprisonment for six months. The applicant has, thus, assailed the judgment of conviction and order of sentence by preferring the instant revision petition. ( 7. ) IN this revision petition, Shri AP. Singh, learned Counsel for the applicant, has contended that before obtaining the sample of milk, it was not stirred so as to make the milk homogenous; there is non-compliance of Rule 16 (b) and Rule 17 of the Rules of 1955; after the receipt of report from the public Analyst, the same was not sent to the applicant, which was required to be served upon him as per Section 13 (2) of the Act as well as Rule 9-B of the rules of 1955. The non-compliance of the Rules is fatal to the prosecution and, therefore, the conviction of the applicant is bad in law. ( 8. ) PER contra, Smt. Chanchal Sharma, learned Panel Lawyer for the state, has submitted that there is overwhelming evidence to the fact that the accused/applicant has committed offence of which he was charged and, therefore, he has been rightly convicted. According to her, under the limited jurisdictional power of revision, this Court should not interfere in the judgment of the Courts below. ( 9. ) AFTER hearing rival contentions of the learned Counsel for the parties, I am of the opinion that the revision petition deserves to be allowed and the judgment of conviction passed by the Courts below deserves to be set aside. ( 10. ) THE prime document of the case is Panchanama (Ex. P-4), dated 25-2- 1981. It is said that on this date, sample of milk was collected by the Food inspector Mr. M. A. Ansari at 12. ( 10. ) THE prime document of the case is Panchanama (Ex. P-4), dated 25-2- 1981. It is said that on this date, sample of milk was collected by the Food inspector Mr. M. A. Ansari at 12. 30 p. m. Shri A. P. Singh, learned Counsel, has read over the said document before me and contended that there is nothing in the said Panchanama so as to indicate that before obtaining the sample of milk from the bulk, the same was stirred so as to make it homogenous. I find much substance in the argument of the learned Counsel for the applicant. Nowhere in the Panchanama, it has been so mentioned that before obtaining the sample of milk, it was stirred so as to make it homogenous. If the Food inspector had obtained the sample of milk from the bulk without stirring it, so as to make it homogenous, the conviction of the accused can not be sustained. In this regard, it shall be apposite to refer the decisions of K. Harikumar Vs. Food Inspector [1995 Suppl. (3) SCC 405], State of Himachal Pradesh Vs. Sher khan (1998 Cr. LJ 563), State of Himachal Pradesh Vs. Madanlal (2000 Cr. LJ 4200) and State of Rajasthan Vs. Kachab (1980 Cr. LJ 894 ). Thus, on the basis of aforesaid ratio, the applicant/accused can not be convicted. The Courts below passed the judgment of conviction by overlooking this legal aspect of the matter. ( 11. ) THE next submission of Shri A. P. Singh, learned Counsel for the applicant, is that there is non-compliance of Rule 16 (b) of the Rules of 1955. According to him, it was incumbent upon the Food Inspector to wrap the container of sample in fairly strong thick paper, the ends of which should be neatly folded. From this angle, Panchanama (Ex. P-4) has been perused by me and I find that there is nothing in the Panchanama so as to indicate that after obtaining the sample of milk in the bottle, it was wrapped in fairly strong thick paper, the ends of which were neatly folded. Thus, there is non-compliance of rule 16 (b) of the Rules of 1955. In this regard, it shall be relevant to refer decision of Prashant Kumar Shah Vs. State of Bihar (1987 FAJ 276 ). ( 12. Thus, there is non-compliance of rule 16 (b) of the Rules of 1955. In this regard, it shall be relevant to refer decision of Prashant Kumar Shah Vs. State of Bihar (1987 FAJ 276 ). ( 12. ) THIRD contention of Shri A. P. Singh, learned Counsel for the applicant, is that the sample of milk was obtained on 25-2-1981 at 12. 30 p. m. , therefore, as per Rule 17 (a) of the Rules of 1955, the same should have been sent to the Public Analyst immediately, but not later than the succeeding working day by any suitable means. It is the case of the prosecution that the sample of milk was sent on 27-2-1981 to the Public Analyst. It be seen that when the sample was obtained on 25-2-1981, the same should have been sent latest by 26-2-1981 to the Public Analyst, thus, there is non-compliance of Rule 17 (a) of the Rules of 1955 and, therefore, on this count also, the conviction: can not be sustained. See Narmada Vs. State of M. P. [1994 (2) Vibha 136], in which reliance has been placed by this Court on the decision of the Apex Court in the case of State of Maharashtra Vs. Raj Karan (1989 All India Prevention of Food Adulteration Journal 12 ). In these two decisions, it has been held that the provisions of Rule 17 of the Rules of 1955 are mandatory. In this context it would be profitable to refer another judgment of this Court reported in hiralal Vs. Food Inspector, Morena and another [1995 (2) Vibha 84]. Thus, it has become crystal clear that there is non-compliance of Rule 17 (a) of the rules of 1955 and, therefore, the applicant can not be convicted for the offences, of which he has been charged. ( 13. ) FOURTH contention of Shri A. P. Singh, learned Counsel for the applicant, is that no notice was served to the applicant as required under section 13 (2) of the Act and also under Rule 9-B of the Rules of 1955. According to him, Ex. P-12 is the copy of notice and Ex. P-13 is a receipt of the notice. One Shivram s/o Hubbilal had received the notice. Needless to say, the name of the applicant is Bansilal s/o Parmaiklal. Thus, it can not be said that the notice was ever served on the applicant. According to him, Ex. P-12 is the copy of notice and Ex. P-13 is a receipt of the notice. One Shivram s/o Hubbilal had received the notice. Needless to say, the name of the applicant is Bansilal s/o Parmaiklal. Thus, it can not be said that the notice was ever served on the applicant. In this view of the matter as well, the conviction of the applicant can not be sustained in the eye of law. ( 14. ) APART from the aforesaid grounds, on bare perusal of the panchanama (Ex. P-4), it is found that a thumb impression of the accused/applicant was obtained, being an illiterate person. In order to prove the execution of a document executed by an illiterate person, it must be shown and proved that the person executing it consciously subscribed to it in the sense that he put his thumb mark on it after having known and understood its contents. Mere proof that the persons thumb impression appears on the document, can not, by itself, amount to execution of the document. It is well settled in law that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document. ( 15. ) IN the present case, neither in the Panchanama (Ex. P-4), it has been so mentioned that after hearing the contents of it, the applicant put his thumb impression nor it has been so stated by the Food Inspector in his statement that the applicant put his thumb impression after hearing the contents of the Panchanama (Ex. P-4 ). Thus, in my view, the prime document (Ex. P-4) is not at all proved. See : Mt. Farid-un-nisa Vs. Munshi Mukhtar ahmad and another, AIR 1925 PC 204, Omanhene Kwamin Bassayin Vs. Omanhene Bendentu II, AIR 1937 PC 274, Udebhan Zangoji Patil Vs. Vithoba ukandaji Dhangar, AIR 1939 Nagpur 78, Mst. Kharbuja Kuer Vs. Jang bahadurrai and others, AIR 1963 SC1203, Ramjan Khan and others Vs. Baba raghunath Dass and others, AIR 1992 MP 22 and Kisna Vs. Hiralal and others, 2001 M. P. Revenue Nirnaya 217. ( 16. Omanhene Bendentu II, AIR 1937 PC 274, Udebhan Zangoji Patil Vs. Vithoba ukandaji Dhangar, AIR 1939 Nagpur 78, Mst. Kharbuja Kuer Vs. Jang bahadurrai and others, AIR 1963 SC1203, Ramjan Khan and others Vs. Baba raghunath Dass and others, AIR 1992 MP 22 and Kisna Vs. Hiralal and others, 2001 M. P. Revenue Nirnaya 217. ( 16. ) ON the basis of aforesaid reasons, I have no hesitation to hold that the conviction of the applicant can not be sustained in the eye of law. ( 17. ) IN the result, the revision petition succeeds and is hereby allowed. The judgment of conviction passed by the Courts below is hereby set aside. The applicant is acquitted from all the charges. He is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him. Criminal Revision allowed.