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Allahabad High Court · body

2007 DIGILAW 1287 (ALL)

TURSHAN PAL SINGH v. STATE OF UTTAR PRADESH

2007-04-30

V.D.CHATURVEDI

body2007
( 1 ) THIS Criminal Revision has been filed against the judgment and order dated 20. 1. 89 passed by Addl. Sessions Judge I, in Criminal Appeal No. 32 of 1987 whereby he has upheld the conviction and sentence passed against the revisionist Turshan Pal Singh for offence under section 7/16 of Prevention of Food Adulteration Act (hereinafter called as the Act ). ( 2 ) THE facts are briefly that Sri Baikunthi Narain Saksena, Food Inspector, filed a criminal complaint in the court of Munsif Magistrate against the revisionist for offence under section 7/16 of Prevention of Food Adulteration Act stating therein that on 20. 4. 1983 at about 9. 30 a. M. , he (Food Inspector) took the sample of the milk sold by the revisionist; that the milk was sent for chemical examination; that adulteration was reported by the chemical analyst hence the complaint was filed in the trial court. The statements of P. W. 1 Sri Baikunthi Narain Saksena (Food Inspector ) and P. W. 2 Jagdish Prasad Gupta, (another Food Inspector) were recorded in the trial court. The Magistrate convicted the revisionist under section 7/16 of Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for 6 months and also imposed a fine of Rs. 1000/ -. In default of payment of fine the revisionist was further directed to undergo the rigorous imprisonment for 3 months. The appeal filed by the revisionist was dismissed, hence this revision. ( 3 ) THE glaring aspect of this case is that no public witness was examined in the trial court by the complainant. Sub-Section 7 of Section 10 of the Act lays down that where the Food Inspector takes any action under clause (a) of Sub-section (1), sub-section (2), sub-section (4) or sub-section (6) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. The words "one or more persons" occurring in Section 10 (7) of the Act means "one or more independent persons". An employee of the Department of Food Inspector, who was already accompanying the Food Inspector is not the "person called" by the Food Inspector. The person, enumerated in Section 10 (7) of the Act, may be called from the same locality where the sample was taken, or may be called, in appropriate circumstances, from another locality. An employee of the Department of Food Inspector, who was already accompanying the Food Inspector is not the "person called" by the Food Inspector. The person, enumerated in Section 10 (7) of the Act, may be called from the same locality where the sample was taken, or may be called, in appropriate circumstances, from another locality. ( 4 ) THE persons of the complainants department are bound to support the complainants version. Therefore, the provisions of section 10 (7) of the Act are enacted to provide the independent witness to rule out any doubt regarding the truthfullness of the prosecution version and to affirm the confidence in the prosecution version. ( 5 ) THE object of sub-section (7) of Section 10 of the Act is bound to frustrate if such independent person is not produced in the court to affirm that he was called upon by the Food Inspector and that he remained present when the action was taken against the accused and that he made his signatures over the relevant papers. ( 6 ) IN the case in hand no such independent person is produced by the prosecution hence there is no compliance of sub-section (7) of Section 10 of the Act. ( 7 ) THE learned A. G. A. argued that the persons of the locality declined to give evidence against the accused on account of their sweet relationship with the accused. . He on this ground argued that the omission to produce the independent witness be not treated against the prosecution. Where the sample was taken in the locality, where the accused had any house, shop or factory, the persons of such locality may decline to give evidence against such accused person, on account of their sweet or good relationship with the accused. But the fact of the case in hand are entirely different. The sample in the present case was taken in the locality, where the accused had no shop, house or factory. Therefore, there was no reason or occasion for the persons of the locality to decline to give evidence against the accused (Revisionist), on account of their sweet relationship with the accused. ( 8 ) THE accused is a poor person who used to sell milk from door to door and from Mohalla to Mohalla. He cannot be deemed to be a person having any influence to win over the independent witness. ( 8 ) THE accused is a poor person who used to sell milk from door to door and from Mohalla to Mohalla. He cannot be deemed to be a person having any influence to win over the independent witness. ( 9 ) THE non compliance of direction contained in Section 10 (7) of the Act and the omission to produce such independent witness in Court, creates a grave doubt regarding the truthfullness of the prosecution version. In such circumstances, the conviction and the sentence awarded to the revisionist cannot be allowed to sustain. ( 10 ) THE revision is allowed. The judgment and order dated 20. 1. 89 passed in Criminal Appeal No. 32 of 1987 and the judgment dated 6. 3. 87 passed in Criminal Case No. 422 of 1986 by the trial court are set aside. The revisionist is acquitted. His bail bonds are cancelled. Sureties are discharged. He need not to surrender. Certify the order to the court below within 2 weeks. .