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Madhya Pradesh High Court · body

2008 DIGILAW 411 (MP)

Shanker v. State of M. P.

2008-03-13

S.SHRIVASTAVA

body2008
JUDGMENT : Sushma Shrivastava, J. 1. Applicant has preferred this revision against the appellate judgment dated 11.7.98 passed by III rd Additional Sessions Judge, Chhindwara in Criminal Appeal No. 123/97, whereby the conviction of the applicant under Section 7(i)/16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as 'Act') recorded by Chief Judicial Magistrate, Chhindwara and sentence passed on him are upheld. 2. It is alleged that on 30.1.86 at about 9 O'clock in the morning at Narsinghpur Road, Chhindwara, while applicant was carrying 20-25 liters of mixed milk (cow and buffalo milk) for sale he was checked by Food Inspector Bhola Singh. Food Inspector Bhola Singh purchased 660 ml. of mixed milk from the applicant for analysis in presence of panch witnesses after giving him notice in writing in Form No. VI to have it analyzed. The Food Inspector then divided the sample of mixed milk collected from the applicant into three equal parts and filled each part in three clean and dried bottles and added prescribed quantity of Formalin and duly sealed them and sent one of its parts to the Public Analyst for analysis and sent the remaining two parts to the Local Health Authority. Upon analysis, the sample of milk taken from the applicant was found to be adulterated. After obtaining necessary sanction, applicant was prosecuted under Section 7(i)/16(1)(a)(i) of the Act. After the institution of prosecution, notice under Section 13(2) of the Act alongwith the report of the Public Analyst was sent to the applicant by registered post. 3. Applicant was tried for the offence under Section 7(i)/16(1)(a)(i) of the Act in the Court of Chief Judicial Magistrate, Chhindwara. After trial Chief Judicial Magistrate, Chhindwara found the applicant guilty for selling adulterated milk and convicted him under Section 7(i)/16(1)(a)(i) of the Act and sentenced him to rigorous imprisonment for six months with fine of Rs. 1,000/-, in default further imprisonment for two months vide judgment dated 24.7.97 passed in Criminal Case. No. 1441/86. 4. In criminal appeal preferred by the applicant against the aforesaid order of his conviction and sentence, the appellate Court, after considering the evidence on record, upheld the conviction of the applicant under Section 7(i)/16(1)(a)(i) of the Act and sentence passed on him by Chief Judicial Magistrate, Chhindwara and dismissed his appeal by the impugned judgment, which has been challenged in this revision. 5. 5. Learned Counsel for the applicant submitted that the two courts below gravely erred in law and facts in convicting and sentencing the applicant on the basis of sole testimony of the Food Inspector and failed to see that there was no compliance of provisions of Section 13(2) of the Act. 6. Learned Counsel for the State, on the other hand, supported the impugned judgment and findings recorded by the court below. 7. Impugned judgment and records of the lower courts perused. 8. There is a concurrent finding of the fact of two courts below that Food Inspector Bhola Singh purchased a sample of 660 ml of mixed milk from the applicant for analysis, and the same was found to be adulterated after analysis by the Public Analyst. The aforesaid finding of fact does not suffer from any infirmity in view of the evidence of Food Inspector Bhola Singh (P.W.-1) and the documents Ex. P-5 to P-13 placed on record. The evidence of Food Inspector, Bhola Singh (P.W-1) and the documents prepared by him on the spot clearly indicate that Food Inspector had taken the sample of mixed milk (cow and buffalo milk) from the applicant in presence of panch witnesses after giving him a notice in writing to have it analyzed and had divided the sample then and there into three equal parts and duly sealed them and sent one of its parts to the Public Analyst for analysis and the remaining two parts to Local Health Authority and had followed the procedure prescribed under the Act for taking sample of article of food. As per report of Public Analyst (Ex.P-13), the sample taken from the applicant has been found to adulterated, as it did not conform to the standard prescribed for mixed milk under the Act. 9. The submission of the learned Counsel for the applicant that the testimony of Food Inspector could not be relied upon in absence of corroboration by the independent witness, namely, Dheeraj Singh (P.W-2) is devoid of any substance. It is well settled, as also reiterated by the Apex Court in the case of Food Inspector v. G. Satyanarayana reported in AIR 2004 SC page 1236 that corroboration of main witness by independent witness is a rule of prudence and not the requirement of law and the testimony of Food Inspector cannot be rejected for want of corroboration by independent witness. 10. 10. The next submission of leaned counsel for the applicant regarding non-service of notice under Section 13(2) of the Act in as much as AD receipt was not received back, also has no merit. The evidence of P.N. Bilse (P.W-3) indicated that the notice under Section 13(2) of the Act was dispatched to the applicant by means of registered post on the address mentioned in Ex.P-16. There was no such suggestion in the cross-examination that the notice under Section 13(2) of the Act (Ex.P-15) sent by registered post vide Ex.P-16 and Ex.P-17 did not mention the correct address of the applicant. Thus, there would be a presumption of service of notice sent by registered post on the correct address of the applicant in view of provisions of Section 27 of General Clauses Act as well as Section 114 (illustration e & f) of the Evidence Act. The mere fact that AD receipt was not received back was not sufficient to rebut or dislodge the presumption of service of notice (Ex.P-15) sent by registered post in absence of any other evidence to the contrary. It is a known fact that AD receipt is sent back by ordinary post and might also be misplaced. Thus, it could not be said that there was non-compliance of Section 13(2) of the Act. 11. No other infirmity or non-compliance of any other provisions of the Act was urged in this revision. No interference in the conviction of the applicant under Section 7(i)/16(1)(a)(i) is thus called for. 12. As regards the sentence, the learned Counsel for the applicant submitted that the sample of milk was collected from the applicant in the year 1986, the jail sentence would not be justified after such a long lapse of time. However, as held by the Apex Court in the case of Mahendrakumar G. Patel and Anr. v. State of Gujarat and Anr. 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 for the offence under Section 16(1)(a)(i) of the Act. Applicant has already been awarded minimum prescribed sentence of six months imprisonment with fine of Rs. 1000/-(one thousand only), which requires no further reduction. 13. Revision fails and is dismissed. 14. Applicant is on bail. Applicant has already been awarded minimum prescribed sentence of six months imprisonment with fine of Rs. 1000/-(one thousand only), which requires no further reduction. 13. Revision fails and is dismissed. 14. Applicant is on bail. He shall surrender to his bail bonds to serve out the remaining period of his sentence.