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Madhya Pradesh High Court · body

2007 DIGILAW 596 (MP)

Mohan Singh v. State of M. P.

2007-05-17

SUSHMA SHRIVASTAVA

body2007
ORDER 1. Applicant has preferred this revision against the appellate judgment dated 3.4.1996 passed by Sessions Judge, Hoshangabad in Criminal Appeal No. 118/1989 affirming his conviction under section 7 (i)/16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as 'Act') and order of sentence of rigorous imprisonment for one year and fine of Rs. 1,000/-, in default further rigorous imprisonment for three months passed against him by Chief Judicial Magistrate Hoshangabad in Criminal Case No. 504/84 vide judgment dated 26.9.1989. 2. It is alleged that on 30.5.1984 at about 9:30 a.m. Food Inspector R.P. Singh upon inspection of the shop, known as Hotel Baba Ramji Das Mishthan Bhandar near bus stand Hoshangabad, belonging to the applicant found that applicant had stored some green coloured 'Mava Barfee' for sale at his shop, which appeared to be sub-standard. The Food Inspector then 'purchased 600 grams of green coloured 'Mava Barfee' from the applicant as sample for analysis by paying its cost, after giving him notice in Form No. VI. The Food Inspector then divided the sample of 'Mava Barfee' in three equal parts and kept each part in dried and clean containers and duly packed and sealed them in presence of panch witnesses and sent one of its part for analysis to the Public Analyst alongwith impression of his seal as prescribed. After analysis, the sample of 'Barfee' purchased from the applicant was found to be adulterated. Copy of the report of Public Analyst was then duly sent to the applicant and after obtaining necessary sanction for prosecution, applicant was prosecuted under section 7 (i)/16 (1) (a) (i) of the Act. 3. Chief Judicial Magistrate Hoshangabad tried the applicant for the offence punishable under section 7 (i)/16 (1) (a) (i) of the Act and after full trial found him guilty for the aforesaid offence and sentenced him to rigorous imprisonment for one year and fine of Rs. 1,000/-, in default further rigorous imprisonment for three months vide judgment dated26.9.1989 passed in Criminal Case No. 504/84. 4. 1,000/-, in default further rigorous imprisonment for three months vide judgment dated26.9.1989 passed in Criminal Case No. 504/84. 4. In Criminal Appeal No. 118/89 preferred by the applicant against his aforesaid conviction and order of sentence passed by Chief Judical Magistrate Chhindwara in Criminal Case No. 504/84, the appellate Court after considering the evidence on record affirmed the conviction of the applicant and sentence passed on him by the Chief Judicial Magistrate Chhindwara and dismissed his appeal vide judgment dated 3.4.1996, which has been assailed in this revision. 5. Impugned judgment and records of the Lower Courts perused. 6. There is a concurrent finding of the two Courts below that the Food Inspector had purchased 600 grams of green coloured 'Barfee' made up of khova from the shop of the applicant known as Hotel Baba Ramji Das Mishthan Bhandar located at bus-stand Hoshangabad and the sample so taken was sent to the Public Analyst for analysis and vide report of the Public Analyst (Exh. P-11) same was found to be adulterated as unpermitted colour combination of yellow and blue dyes was used in the sample of green colour 'Mava Barfee'. The two Courts below thus found the sample to be adulterated within the meaning of section 2 (ia) (j) of the 'Act' as it did not conform to Rule 28 of the 'Rules' prescribing the use of colours in the articles of food. 7. Learned counsel for the applicant submitted that the two Courts below erroneously did not consider the defence of the applicant that' Mava Barfee' was not stored or intended for sale and it was prepared at his shop at the order placed by Premnarayan Nagwanshi (PW 2) on the material and colour as supplied by him. However, both the Courts below for cogent reasons have disbelieved the defence so taken by the applicant and the finding in this behalf is also based on the correct appreciation of the evidence on record and is not perverse so as to interfered with. 8. Learned counsel for the applicant further submitted that the two Courts below erred in law in relying upon the sole testimony of the Food Inspector in absence of corroboration by the independent witness Premnarayan Nagwanshi (PW 2), who did not support the prosecution case. 8. Learned counsel for the applicant further submitted that the two Courts below erred in law in relying upon the sole testimony of the Food Inspector in absence of corroboration by the independent witness Premnarayan Nagwanshi (PW 2), who did not support the prosecution case. However, it is well settled, as also reiterated by the apex Court in the case of Food Inspector v. G. Satyanarayan, reported in [ AIR 2004 SC 1236 ] that corroboration of main witness by independent witness is a rule of prudence and not a law and the testimony of Food Inspector cannot be rejected for want of corroboration by independent witness. 9. Learned counsel for the applicant also submitted that the food Inspector did not follow the procedure as prescribed under sections 10 (7) and 11 of the 'Act'. However, it is clearly borne out from the testimony of Food Inspector R.P. Singh (PW 1) coupled with the documents (Exh. P-3 and Exh. P-10) that the Food Inspector had followed the procedure as prescribed under sections 10 (7) and 11 of the Act in taking the sample of sweets from the shop of the applicant and purchased the sample of 'Mava Barfee' after giving him a notice in Form No. VI (Exh. P-3) and making payment of cost vide receipt (Exh. P-4) and the panchnama of the whole proceedings (Exh. P-5) was also prepared by him in presence of panch witness (PW 2). The money receipt (Exh. P-4) and the panchnama (Exh. P-5) also admittedly bore the signatures of the panch witness Premnarayan Nagwanshi (PW 2), though he did not support the prosecution case. Therefore, the submission of learned counsel for the applicant has no force that the conviction of applicant is bad in law for non-compliance of the mandatory provisions of the Act by the Food Inspector. No other non-compliance of the mandatory provisions of the Act could be pointed out. 10. In fact, in view of the evidence of Food Inspector R.P. Singh (PW 1), as on record and the report of the Public Analyst (Exh. P-11) coupled with other documents on record, no infirmity is found in the finding of fact that the sample of green coloured 'Barfee' taken by the Food Inspector from the applicant from his shop, which he had stored for sale, was found to be adulterated. P-11) coupled with other documents on record, no infirmity is found in the finding of fact that the sample of green coloured 'Barfee' taken by the Food Inspector from the applicant from his shop, which he had stored for sale, was found to be adulterated. Needless to emphasize, that a sale of article of food to a Food Inspector for analysis is also a sale within the meaning of section 2 (xiii) of the Act. Apposite to add that the report of the Public Analyst (Exh. P-11) indicating that unpermitted colour combination of yellow and blue dyes was used in the sample of green coloured 'Barfee' was also not challenged before the Courts below. 11. In the wake of aforesaid, no infirmity or error of jurisdiction is found in the impugned judgment affirming the conviction of the applicant under section 7 (i)/16 (1) (a) of the Act so as to warrant any interference in this revision. 12. As regards the sentence, the learned counsel for the applicant submitted that the applicant being a poor, unemployed and handicapped person deserves leniency in the sentence. However, as held by the apex Court in the case of Mahendra Kumar Patel v. State of Gujrat. reported in [(2004) SCC 13 Page 78], in view of mandatory provisions of section 16 (1) of the Act, no sentence lesser than the minimum prescribed by the statute could be awarded. Yet, in view of the submissions made on behalf of the applicant and in the wake of fact that the offence in question was of the year 1984, it would be just and proper if the impugned sentence of imprisonment for one year awarded to the applicant is reduced to period of six months, which is minimum prescribed for the offence under section 16 (1) (a) (i) of the Act besides fine of Rs. 1,000/-. Accordingly the sentence of rigorous imprisonment for one year awarded to the applicant is reduced to six months imprisonment. However, the impugned sentence of fine of Rs. 1,000/- (One thousand only) imposed on the applicant is affirmed and maintained. Revision is accordingly allowed in part to the extent indicated above.