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Madhya Pradesh High Court · body

2008 DIGILAW 461 (MP)

Gyasi Lal Napit v. State of M. P.

2008-03-25

K.S.CHAUHAN

body2008
ORDER :- This Criminal Revision under section 397 read with section 401 of the Code of Criminal Procedure has been preferred being aggrieved by the impugned judgment passed by Sessions Judge, Tikamgarh in Criminal Appeal No. 41/95 decided on 3-4-1997 arising out of Criminal Case No. 129/88 decided by Chief Judicial Magistrate, Tikamgarh on 12-10-1995 whereby the conviction of the petitioner under section 7(3), Rule 50 read with section 16(1)(a)(ii) and section 7(1) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the 'Act') and sentences passed thereunder have been affirmed. 2. Prosecution case in brief is that on 25-4-1987 at 9:45 a.m. at Digauda Road, Tikamgarh near Electricity Department petitioner was carrying on milk in 2 cans and 1 Kasedi on cycle. On asking by Shri R. K. Dubey, Food Inspector, Tikamgarh he told that he has 20 litres mixed milk of cow and she-goat and he sells it in Tikamgarh town at the rate of Rs. 21- per litre. But he did not have the licence for selling milk for the year 1987-88. Food Inspector suspected adulteration hence after giving him notice of form No. 6 (Ex.P/2) purchased 660 millilitres milk after paying the price thereof and obtained the receipt (Ex.P/3). It was divided in 3 equal parts and filled in 3 dried, neat and clean bottles. 18 drops of formalin were added in each bottle. Packing, wrapping, labelling and sealing were done and panchnama of the proceedings Ex. P/4 was prepared at the spot which contains the signature of the petitioner and witnesses. One part of sample along with memorandum form No. 7 and specimen impression of seal were deposited in the Office of Local (Health) Authority, Tikamgarh for sending it to Public Analyst, Bhopal for analysis and remaining two parts were also deposited in the same Office. The sample of Public Analyst was sent by special messenger. The report from Public Analyst was received, accordingly the milk was found adulterated. After obtaining sanction for prosecution complaint was filed in the Court of C.J.M., Tikamgarh and the petitioner was informed accordingly. 3. Trial Court framed the charge under section 7(3), Rule 50 read with section 16(1)(a)(ii) and under section 7(1) read with section 16(1)(a)(i) of the Act that on 25-4-1987 at 9:45 a.m. at Tikamgarh he was found stored milk for sale without licence. 3. Trial Court framed the charge under section 7(3), Rule 50 read with section 16(1)(a)(ii) and under section 7(1) read with section 16(1)(a)(i) of the Act that on 25-4-1987 at 9:45 a.m. at Tikamgarh he was found stored milk for sale without licence. He denied the guilt and claimed to be tried. Prosecution examined as many as 3 witnesses and the defence did not examine any witness. After appreciating the evidence, trial Court found him guilty under section 7(3), Rule 50 read with section 16(1)(a)(ii) and under section 7(1) read with section 16(1)(a)(i) of the Act and sentenced thereto fine of Rs. 500/- and R.I. for 6 months with fine of Rs. 1,000/- in default additional imprisonment for 3 months and 6 months respectively. Being aggrieved by the judgment, finding and sentence Criminal Appeal No. 41/95 was filed before the Sessions Judge, Tikamgarh which was decided on 3-4-1997. The appeal was dismissed. Being aggrieved by the impugned judgment, the instant revision has been filed on the grounds set out in the memo of revision. 4. Learned counsel for the petitioner has submitted that no independent witness has supported the prosecution case. No proper notice under section 13(2) of the Act was given to the petitioner. As a result of which he could not get the sample examined by C.F.L. hence his case has been seriously prejudiced. There is contravention of rules in taking sample and sending it to Public Analyst. The finding of guilt is erroneous which deserves to be set aside and the petitioner is entitled for acquittal. 5. On the other hand, Shri A. L. Patel, learned G.A. appearing on behalf of the respondent/State has submitted that prosecution has proved the guilt beyond reasonable doubt against the petitioner and he has been rightly convicted. Learned counsel further submitted that the compliance of section 13(2) of the Act has been made. The notice was sent by U.P.C. The petitioner himself has not taken steps to get another sample examined by C.F.L. The guilt of the petitioner is based on the proper appreciation of evidence. Both the Courts below have found him guilty, therefore, no interference is called for. 6. The notice was sent by U.P.C. The petitioner himself has not taken steps to get another sample examined by C.F.L. The guilt of the petitioner is based on the proper appreciation of evidence. Both the Courts below have found him guilty, therefore, no interference is called for. 6. The main point for consideration in this revision is whether the Appellate Court has committed any illegality in affirming the conviction of the petitioner under section 7(3), Rule 50 read with section 16(1)(a)(ii) and under section 7(1) read with section 16(1)(a)(i) of the Act and sentencing him thereunder? 7. R. K. Dubey (PW-1) by way of oral as well as documentary evidence has established that he was a qualified Food Inspector to take food sampling. On 25-4-1987 the petitioner was found carrying milk in the containers on the cycle. On being inquired he stated that he does the profession of milk vending. He carried the milk from village to Tikamgarh town and sells there. Presently he is having 20 litres mixed milk of cow and she-goat and he has no licence for selling milk for the year 1987-88. On being suspected adulteration in milk he gave him notice of form No. 6 Ex.P/2 and purchased 660 millilitres of milk by paying the price thereof vide receipt Ex.P/3. This milk was divided in 3 equal parts and filled in 3 dried, neat and clean bottles and 18 drops of formalin were mixed in each bottle. These bottles were properly packed, wrapped, labelled and sealed. Panchnama of the proceedings Ex.P/4 was prepared. One part of sample along with memorandum form No. 7 with specimen impression of seal were deposited in the office of Local (Health) Authority, Tikamgarh to send it to Public Analyst for analysis and another 2 parts of sample were also deposited in the same office. Public Analyst report Ex.P/8 was received through office vide letter Ex.P/9. According to this report, the milk was found adulterated, therefore, he filed an application Ex.P/10 for permission to prosecute the petitioner. Sanction was granted vide Ex.P/11 then he informed the petitioner vide letter Ex.P/12 that the complaint would be filed in the Court of C.J.M., Tikamgarh on 15-3-1988. Public Analyst report Ex.P/8 was received through office vide letter Ex.P/9. According to this report, the milk was found adulterated, therefore, he filed an application Ex.P/10 for permission to prosecute the petitioner. Sanction was granted vide Ex.P/11 then he informed the petitioner vide letter Ex.P/12 that the complaint would be filed in the Court of C.J.M., Tikamgarh on 15-3-1988. In cross-examination of this witness nothing is elicited as to discredit his testimony and his evidence is intact that the sample of milk which was taken from the petitioner was found adulterated and after obtaining the sanction he was prosecuted. 8. Swami Prasad (PW-3) is the witness of proceedings. He has admitted his signature on the documents Ex.P/2 to Ex.P/4 but not supported the prosecution story, therefore, declared hostile by the prosecution. 9. According to section 134 of Indian Evidence Act no particular number of witness is required to prove the particular fact. It is established principle of law that if the evidence of a witness is trustworthy and reliable then the conviction may be based on his evidence. So far as the present case is concerned, the evidence of R. K. Dubey (PW-1) is trustworthy and wholly reliable hence conviction may be based on his sole testimony. [See Municipal Corpn. of Delhi vs. Ram Murti and anr., 1972 FAC 756, Ramalingam vs. State, 1989 FAJ 194 and Joginder Singh vs. State of Punjab, 1991(1) Sim LJ 444.] 10. The main contention of the learned counsel for the petitioner is that there is no due compliance of section 13(2) of the Act, therefore, petitioner deserves to be acquitted. Learned counsel for the petitioner has placed reliance on the following decisions :- (i) Ghansu vs. State of M. P., 1999(1) MPLJ 613 , (ii) Ramprasad vs. State of M. P., 2002(4) MPLJ 523 , (iii) Brandavan vs. State of M. P., 2005(4) MPLJ 276 , (iv) Ram Singh vs. State of M. P., 2005(3) MPLJ 458 11. So far as the present case is concerned, there is evidence of Smt. Prabha Verma (PW-2) who has stated that notice under section 13(2) of the Act (Ex.P/14) along with Public Analyst report was sent vide dispatch No. 13-15 dated 16-3-1988 through U.P.C. The receipt is Ex.P/13. Register shows the entry of U.P.C. at page No. 49 and expenditure of 80 paise on it. Register shows the entry of U.P.C. at page No. 49 and expenditure of 80 paise on it. She has admitted in her cross-examination that the notice could not be sent through registry on account of shortage of the stamp ticket. 12. On perusal of entire evidence of Smt. Prabha Verma (PW-2) it is clearly established that the notice to petitioner was sent at his proper address through U.P.C. vide receipt Ex.P/13. No evidence in rebuttal has been adduced by petitioner that he did not receive such notice. Apart from it, the petitioner was also informed vide Ex.P/12 that the sample which was taken from him was found adulterated and the complaint would be instituted against him on 15-3-1988. This letter contains the signature of the petitioner. It clearly indicates that he was informed that the sample which was taken from him was found adulterated on analysis. Records shows that this petitioner appeared before the trial Court on 15-3-1988 along with his counsel. He has received the copies of complaint and the documents filed along with it, therefore, he received the public analyst report also on that day hence this fact came into his knowledge that sample of milk was found adulterated but he did not exercise his right under section 13(2) of the Act for getting another part of sample analysed by Central Food Laboratory. The position might have been different if the analysis of the remaining part of sample could not have been done on account of deterioration of sample, therefore, in such situation, he cannot get the benefit that the registered notice under section 13(2) of the Act was not given to him because he has not been prejudiced in any way. In such circumstances, no benefit of the cited cases be extended to the petitioner. 13. The next contention of the learned counsel for the petitioner is that the prosecution has been launched delayed. The incident is of 25-4-1987 and the complaint was filed on 15-3-1988, therefore, such complaint ought to have been quashed. He has placed the reliance on the decision rendered in State of M. P. vs. Hemant Kumar, 1999(1) MPLJ 669 . 14. So far as the present case is concerned, there is nothing on record that the another part of sample became unfit for analysis due to delay in filing the complaint, therefore, there was no question to quash such complaint. 15. 14. So far as the present case is concerned, there is nothing on record that the another part of sample became unfit for analysis due to delay in filing the complaint, therefore, there was no question to quash such complaint. 15. The next contention of the learned counsel for the petitioner is that there was only minor difference, therefore, the milk cannot be said to be adulterated but this defence is not tenable because after due analysis Public Analyst found the sample of milk adulterated vide Ex.P/8, therefore, the sample of milk which was taken from this petitioner and sent for analysis was found adulterated. 16. On appraisal of the entire evidence adduced in the case, it is clearly established that the petitioner was selling milk without licence. Food Inspector R. K. Dubey (PW-1) took sample of milk and sent for analysis which was found adulterated. Both the Courts below have appreciated the evidence in the proper perspective. There is concurrent finding of the Courts below regarding guilt of the petitioner. There is no illegality, infirmity or perversity in such finding hence does not call for interference. The sentence is also not excessive. Revision is meritless and deserves to be dismissed. 17. Consequently, revision petition fails and is dismissed accordingly. Petitioner is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M., Tikamgarh on 25-4-2008 to serve out the remaining part of the sentence. Revision petition dismissed.