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Madhya Pradesh High Court · body

2008 DIGILAW 674 (MP)

Radhika Prasad Gupta v. State of M. P.

2008-05-08

SUSHMA SHRIVASTAVA

body2008
JUDGMENT Sushma Shrivastava, J. 1. Applicant has preferred this revision against the appellate judgment dated 5.8.98 passed by Sessions Judge, Sidhi in Criminal Appeal No. 104/96, whereby the conviction of the applicant under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as 'Act') recorded by Chief Judicial Magistrate, Sidhi has been upheld. 2. Applicant was tried for the offence under Section 16(1)(a)(i) of the Act before Chief Judicial Magistrate, Sidhi. It is alleged that on 18.2.94 at about 12 O'clock in the noon at village Silwar, during checking and inspection by Food Inspector K.G. Khare at kirana shop of applicant, it was found that the applicant had kept various articles of food including turmeric powder for sale. Food Inspector K.G. Khare then introduced himself to the applicant and purchased 450 grams of turmeric powder from the applicant as sample for analysis in presence of panch witness and gave him a notice in writing in Form No. VI to have it analyzed. Food Inspector K.G. Khare then mixed up all the turmeric powder contained in nine packets of 50 grams each purchased by him and divided it into three equal parts then and there, filled them in three clean and dried packets and duly fastened and sealed them, sent one of its parts to the Public Analyst and remaining two parts to the Local Health Authority. Upon analysis, the sample of turmeric powder taken from the applicant was found to be adulterated. After obtaining necessary sanction, applicant was prosecuted under Section 16(1)(a)(i) of the Act. After the institution of prosecution, notice under Section 13(2) of the Act alongwith report of Public Analyst was sent to the applicant by registered post. 3. After trial, Chief Judicial Magistrate found the applicant guilty for selling adulterated turmeric powder and convicted him under Section 16(1)(a)(i) of the Act and sentenced him to rigorous imprisonment for one year with fine of Rs. 1,000/- vide judgment dated 7.12.96 passed in Criminal Case No. 1405/94. 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 and various legal aspects of the case, upheld the conviction of the applicant, but reduced his sentence of imprisonment for one year to a term of six months by the impugned judgment, which has been challenged in this revision. 5. 5. Learned counsel for the applicant submitted that the Courts below gravely erred in law and facts in convicting and sentencing the applicant on the basis of sole testimony of the Food Inspector K.G. Khare and failed to consider that turmeric powder lying with the applicant was not intended for sale and sanction for prosecution was also mechanically granted. 6. Learned counsel for the State, on the other hand, justified and supported the impugned judgment. 7. Impugned judgment and records perused. There is a concurrent finding of fact of the two courts below that Food Inspector K.G. Khare purchased 450 grams of turmeric powder from the applicant, in all nine packets of 50 grams each, for analysis, which was found to be adulterated by the Public Analyst. The aforesaid finding of fact does not suffer from any infirmity in view of the evidence of Food Inspector K.G. Khare (P.W-1) and the documents Ex.P-1 to Ex.P-10 placed on record. 8. The evidence of Food Inspector K.G. Khare and the documents prepared by him on the spot clearly indicated that Food Inspector K.G. Khare had purchased the sample of 450 grams of turmeric powder, in all nine packets of 50 grams each, from the applicant, made it homogenous and then divided the sample of total turmeric powder into three equal parts, duly sealed them, sent one of its parts to the Public Analyst for analysis and the remaining part to the Local Health Authority and had followed the procedure prescribed under the Act for taking the sample of articles of food. The documents prepared by Food Inspector on the spot (Ex.P-1 to P-2) and panchnama (Ex.P-4), which also admittedly bear the signatures of panch witness Rammahesh Gupta also denote that the sampling was done by the Food Inspector in presence of the panch witness. As per report of Public Analyst (Ex.P-10), the sample of turmeric powder taken from the applicant was found to be adulterated, as it did not conform to the standard prescribed for turmeric powder under the Act. 9. The submission of learned Senior Counsel for the applicant that in absence of examination of the independent panch witness, the sole testimony of the Food Inspector could not be relied, is devoid of any substance. 9. The submission of learned Senior Counsel for the applicant that in absence of examination of the independent panch witness, the sole testimony of the Food Inspector could not be relied, is devoid of any substance. It is well settled, as also reiterated by the Apex Court in the case of Food Inspector v. G. S atyanarayana reported in AIR 2004 SC 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. Needless to repeat that the provisions of Section 10(7) of the Act were complied with as the relevant documents prepared on the spot also bore the signatures of the panch witness. Mere non-examination of the panch witness by the prosecution cannot be said to vitiate the action taken by the Food Inspector in collecting the sample. 11. The next submission of learned Senior Counsel for the applicant is that the turmeric powder was not intended for sale and was for personal use of the applicant. Again there is a finding of fact of courts below based on the evidence on record that the packets of turmeric powder were also lying at the shop of applicant and were meant for sale. In absence of any evidence to the contrary, it could not be held that number of packets of turmeric powder lying at the shop of the applicant alongwith other articles of food were not intended for sale or that the applicant bought them for his personal use. The various packets of turmeric powder found at the shop of the applicant, as is evident, also did not contain any label, nor any purchase bill of these articles from any other vender were produced by the applicant. 12. Moreover, a sale of an article to a Food Inspector for analysis is also a sale within the meaning of Section 2(xiii) of the Act. The Apex Court also reiterated in the case of Mohd. Yamin v. 1972 CriLJ 1198 that a sale to a Food Inspector is a sale for the purpose of Section 16 of the Act. 13. The submission of learned Senior Counsel for the applicant, that sanction for prosecution was mechanically granted, also sans merit. The Apex Court also reiterated in the case of Mohd. Yamin v. 1972 CriLJ 1198 that a sale to a Food Inspector is a sale for the purpose of Section 16 of the Act. 13. The submission of learned Senior Counsel for the applicant, that sanction for prosecution was mechanically granted, also sans merit. Record reveals that sanction for prosecution of the applicant was granted after perusal of the relevant documents, which also bear the endorsement of perusal by the Local Health Authority. 14. The evidence on record (evidence of PW-2) also revealed that notice under Section 13(2) of the Act alongwith report of the Public Analyst was sent and served on the applicant by registered post within ten days of the institution of prosecution against the applicant. It is also manifest from the record that the applicant chose not to exercise his right to get the other part of sample analyzed by the Director Central Food Laboratory. Thus, the report of the Public Analyst (Ex.P-10) had become final. 15. In view of the aforesaid discussion, the conviction of the applicant recorded by the courts below for sale of adulterated turmeric powder does not suffer from any legal or factual infirmity so as to call for any interference in revision. 16. As regards the sentence, learned senior counsel for the applicant submitted that the applicant was a petty vender and turmeric was a 'primary food', therefore, in view of the 1st Proviso to Section 16 of the Act, applicant could be awarded a lesser sentence of three months. 17. Now the "Primary Food" is defined under Section 2(xiia) of the Act as under: Primary Food" means any article of food being a produce of agriculture or horticulture in its natural form. 18. In view of the above definition, though turmeric whole (lkcqr) may be a primary food, but turmeric powder cannot be held to be a primary food, as the turmeric powder cannot be said to be a produce of agriculture or horticulture in its natural form. The same view has been taken by Allahabad High Court in case of Vishwanath v. State and Anr. reported in Prevention of Food Adulteration Cases 1981(1) (Allahabad) page 16. 19. Therefore, the applicant is not entitled for reduction of sentence under 1st Proviso to Section 16 of the Act. Accordingly, the impugned minimum sentence of imprisonment for six months with fine of Rs. reported in Prevention of Food Adulteration Cases 1981(1) (Allahabad) page 16. 19. Therefore, the applicant is not entitled for reduction of sentence under 1st Proviso to Section 16 of the Act. Accordingly, the impugned minimum sentence of imprisonment for six months with fine of Rs. 1,000/- imposed on the applicant under Section of the Act also does not call for any interference. 20. Revision fails and is dismissed. 21. Applicant is on bail. He shall surrender to his bail bonds to serve out the remaining part of his sentence.