Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 749 (MP)

Chhotelal v. State of M. P.

2008-06-20

SUSHMA SHRIVASTAVA

body2008
ORDER 1. Applicant has preferred this revision against the appellate judgment dated 8.1.1999 passed by Sessions Judge, Raisen in Criminal Appeal No. 80/98, 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. Applicant was tried for the offence under section 7 (i)/16 (1) (a) (i) of the Act before Chief Judicial Magistrate, Raisen on the basis of complaint instituted by Food Inspector R.K. Singh. It is alleged that on 25.12.1990 at about 8 O'clock in the morning at Barna Colony, Badi, during checking by the Food Inspector R.K. Singh, applicant was found carrying 8 liters of mixed milk (cow and buffalo milk) for sale. Food Inspector, R.K. Singh then introduced himself to the applicant and purchased 750 ml of mixed milk from the applicant for analysis in presence of panch witnesses and gave him a 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 filed each part in three clean and dried bottles, added prescribed quantity of Formalin in each bottle and duly packed and sealed them, sent one of its parts to the Public Analyst for analysis and 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 the 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. After trial, Chief Judicial Magistrate, Raisen, found the applicant guilty for selling adulterated mixed milk of cow and buffalo 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/- by judgment dated 29.7.1998 passed in Criminal Case No. 269/91. 4. 3. After trial, Chief Judicial Magistrate, Raisen, found the applicant guilty for selling adulterated mixed milk of cow and buffalo 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/- by judgment dated 29.7.1998 passed in Criminal Case No. 269/91. 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 the other legal aspects of the case, affirmed the conviction and sentence passed on the applicant under section 7 (i)/ 16 (1) (a) (i) of the Act by the impugned judgment, which has been assailed in this revision. 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 without any independent corroboration and failed to consider that notice under section 13 (2) of the Act was not served on the applicant and the applicant was thus deprived of valuable right under section 13 (2) of the Act. 6. Learned counsel for the State, on the other hand, justified and supported the impugned judgment. 7. Impugned judgment and records of the Lower Courts perused. 8. There is concurrent finding of the fact of two Courts below that Food Inspector R.K. Singh had duly purchased a sample of 750 ml of mixed milk (cow and buffalo milk) from the applicant, which was found to be adulterated after analysis. The aforesaid finding of fact does not suffer from any infirmity in view of the evidence of Food Inspector, R.K.Singh (PW 1) and the documents (Exh. P-4 to Exh. P-11) placed on record. 9. Although, the panch witnesses, namely Jamuna Prasad (PW 2) and Ashok Dixit (PW 3) did not support the version of the Food Inspector (PW 1), they admitted their signatures on the papers evidencing the sampling of milk from the applicant. There were no reasons to disbelieve the testimony of the Food Inspector R.K. Singh (PW 1) that he had checked the applicant at Barna Colony while he was selling milk and had purchased 750 ml of mixed milk from him for analysis after following the procedure prescribed by law. There were no reasons to disbelieve the testimony of the Food Inspector R.K. Singh (PW 1) that he had checked the applicant at Barna Colony while he was selling milk and had purchased 750 ml of mixed milk from him for analysis after following the procedure prescribed by law. It is well settled, as reiterated by the apex Court in the case of Food Inspector v. G. Satyanarayana, 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. The Courts below, therefore, did not err in relying upon the sole testimony of the Food Inspector (PW 1). 10. The evidence of Food Inspector R.K. Singh (PW 1) and the documents prepared by him on the spot clearly indicate that he had purchased the sample of mixed milk of cow and buffalo in prescribed quantity from the applicant in presence of panch witnesses, gave him a notice in writing to have it analyzed and divided the sample then and there into three equal parts, added necessary quantity of Formalin into each part, duly sealed them and sent one of its parts to the Public Analyst for analysis, and remaining two parts to the 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 (Exh. P-l1), the sample of mixed milk of cow and buffalo was found to be adulterated, as it did not conform to the standard prescribed for mixed milk under the Act. No infirmity in the procedure in collecting the sample of milk from the applicant was urged or pointed out. 11. Learned counsel for the applicant, however, emphatically submitted that for want of postal and AID receipt the notice under section 13 (2) of the Act could not be held to be served on the applicant and the applicant was deprived of his right under section 13 (2) of the Act. 12. Again there is a concurrent finding of two Courts below that the copy of the notice (Exh. P-15) alongwith report 0 Public Analyst was sent to the applicant by registered post and thus, there would be a presumption of service of said notice sent by registered post. 12. Again there is a concurrent finding of two Courts below that the copy of the notice (Exh. P-15) alongwith report 0 Public Analyst was sent to the applicant by registered post and thus, there would be a presumption of service of said notice sent by registered post. The evidence of Shyam Babu Gupta (PW 2) employed in the office of Local Health Authority coupled with the extract of the relevant entries in the register maintained in the office also indicated that the notice under section 13 (2) of the Act alongwith report of the Public Analyst was sent to the applicant by registered post on the address mentioned in his evidence. The aforesaid testimony of Shyam Babu (PW 2) made on oath remained virtually uncontroverted or unrebutted during his cross-examination. There was also no such suggestion in his cross-examination that the address on which notice under section 13 (2) of the Act was sent was not the correct address of the applicant. The uncontroverted testimony of Shyam Babu Gupta (PW 2) could not be discarded merely for want of postal receipt, particularly when the testimony of PW 2 on oath was supported by the extract of the register maintained in the office of Local Health Authority regarding dispatch of the notice under section 13 (2) of the Act by registered post. Thus, Courts below rightly held that there would be a presumption of service of notice sent by registered post. The mere fact, that AID receipt was not filed or received back, was not sufficient to rebut or dislodge the presumption of service of notice sent by registered post in absence of any evidence to the contrary. It is a known fact that AI D receipt is sent back by ordinary post and could also be misplaced. 13. The citation referred to be learned counsel for the applicant reported in [ 2005 (II) MPWN 136 = CrLJ 2005 page 4722 (M.P.)], Anil Kumar Jain v. State of M.P., turned on different set of facts and is of no avail to the applicant in the facts of the instant case. 14. In the wake of aforesaid, the submission of learned counsel for the applicant that the notice under section 13 (2) of the Act was not served on the applicant and he was deprived of the right under section 13 (2) of the Act has no merit. 14. In the wake of aforesaid, the submission of learned counsel for the applicant that the notice under section 13 (2) of the Act was not served on the applicant and he was deprived of the right under section 13 (2) of the Act has no merit. Moreover, the applicant never applied to have the other part of the sample analyzed by the Director Central Food Laboratory. 15. 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) of the Act so as to call for any interference in revision. 16. As regards the sentence, applicant has been awarded minimum prescribed sentence for six months with fine of Rs. 1,000/- in accordance with mandatory provisions of section 16 (1) (a) (i) of the Act, which also needs no interference. 17. 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.