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Madhya Pradesh High Court · body

2008 DIGILAW 412 (MP)

Munnalal v. State of M. P.

2008-03-13

SUSHMA SHRIVASTAVA

body2008
ORDER Sushma Shrivastava, J. 1. Applicant has preferred this revision against the appellate judgment dated 18.6.98 passed by Sessions Judge, Raisen in Criminal Appeal No. 8/98, 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, Raisen and sentence passed on him are upheld. 2. It is alleged that applicant is a milk-vender. On 21.11.86 at about 8.15 A.M., when applicant was carrying 12-14 litres of cow-milk in two canes for sale he was checked by Food Inspector, S.C. Gupta. Food Inspector S.C. Gupta, after inquiring the rate and species of the milk from the applicant, purchased 750 ml of cow-milk from him 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 cow-milk in three equal parts and filled each part in clean and dried bottles, added prescribed quantity of Formalin and duly sealed each part and sent one of its part to the Public Analyst for analysis and sent the remaining two parts to Local Health Authority. After 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 along with report of Public Analyst was sent to the applicant by registered post, which was refused by him. 3. Applicant was tried for the offence under Section 7(i)/ 16(1)(a)(i) of the Act before Chief Judicial Magistrate, Raisen. After trial Chief Judicial Magistrate, Raisen found the applicant guilty for selling adulterated cow-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 one month vide judgment dated 5.1.98 passed in Criminal Case. No. 40/87. 4. In criminal appeal preferred by the applicant against the aforesaid order of 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) and sentence passed on him by Chief Judicial Magistrate, Raisen and dismissed his appeal by impugned judgment, which has been assailed in this revision. 5. 4. In criminal appeal preferred by the applicant against the aforesaid order of 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) and sentence passed on him by Chief Judicial Magistrate, Raisen and dismissed his appeal by impugned judgment, which has been assailed in this revision. 5. Learned Counsel for the applicant submitted that the two courts below gravely erred in law and facts in convicting and sentencing the applicant. He further submitted that the applicant did not deserve the jail sentence in 14 years' old case after long passage of time. 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 the Food Inspector had duly purchased 750 ml of cow-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 S.C. Gupta (P.W.-1) and the documents Ex. P-2 to P-13 placed on record. The evidence of Food Inspector, S.C. Gupta (P.W-1) clearly indicated that he had purchased sample of 750 ml of cow-milk from the applicant in presence of panch witnesses and divided it then and there in three equal parts and filled them in clean and dried bottles, duly sealed them and sent one of its part to the Public Analyst for analysis and the two remaining parts to the Local Health Authority and had followed the procedure prescribed under the Act for taking sample of articles of food. As per the report of the Public Analyst (Ex.P-13), the sample of cow-milk collected from the applicant was found to be adulterated, as it did not conform to the standard prescribed under the Act. 9. No infirmity in the procedure or non-compliance of the provisions of Section 13(2) or any other provisions of the Act was urged in this revision. Needless to point out that the two courts below have concurrently held that the notice under Section 13(2) of the Act was sent to the applicant by registered post on his correct address, which had returned with the refusal endorsement. Needless to point out that the two courts below have concurrently held that the notice under Section 13(2) of the Act was sent to the applicant by registered post on his correct address, which had returned with the refusal endorsement. Obviously, in such a case, there would be a presumption of service in view of the provisions of Section 27 of the General Clauses Act and Section 114 (Illustration e & f) of the Evidence Act. 10. Thus, 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)(i) so as to warrant any interference in this revision. 11. The principal submission made on behalf of the applicant was with regard to the jail sentence imposed on the applicant and it was urged that the jail sentence was not warranted after long passage of time when the sample of milk was taken from the applicant in the year 1986. 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) 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 of the Act. Applicant has already been awarded minimum prescribed sentence of six months' imprisonment and fine of Rs. 1000/-(one thousand only), which requires no further reduction. 12. Revision fails and is dismissed. Applicant is on bail. He shall surrender to his bail bonds to serve out the remaining part of his sentence.