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Uttarakhand High Court · body

2012 DIGILAW 118 (UTT)

SATISH KUMAR v. STATE OF UTTARANCHAL

2012-03-21

SERVESH KUMAR GUPTA

body2012
JUDGMENT Brief facts, giving rise to this revision, are that accused revisionist Satish Kumar was tried by Special Magistrate, Economic Offences/Additional Chief Judicial Magistrate, 1st, Dehradun in Criminal Case No. 910/99, Food Inspector v. Satish Kumar, for the offence under Section 7(1 ) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short, ‘the Act’). The learned Magistrate, after conclusion of the trial, vide the judgment and order dated 5.2.2001, convicted the accused revisionist for the said offence, and sentenced him to undergo one year’s rigorous imprisonment along with fine of rupees one thousand. In default of payment of fine, the accused revisionist was further directed to undergo two months’ rigorous imprisonment The accused revisionist challenged his conviction and sentence, as imposed by the learned Magistrate, by filing Criminal Appeal No. 11/2001 before the Court of Sessions. The said appeal of the accused revisionist was partly allowed by the Additional Sessions Judge/F. T. C.-III, Dehradun vide his judgment and order dated 24.3.2003, whereby the conviction of the accused revisionist was upheld, while the sentence was modified from one year’s rigorous imprisonment to six months’ rigorous imprisonment, without disturbing the sentence of fine and punishment in default thereof. Still feeling disgruntled, the accused has filed the instant Revision before this Court. 2. Learned Counsel for the revisionist has very strenuously and vociferously argued this revision. He pointed out some minor discrepancies in the evidence adduced before the trial court, which can be noticed only on its scrupulous examination. One of the main contentions of the learned Counsel for the revisionist is that Food Inspector Mr. Sheo Raj Singh Yadav, while taking the sample of the adulterated milk from the dairy of the accused located at 73 Race Course, Dehradun, failed to take the signature of a witness Ajay Jaggi on Form VI, and the only remaining witness, Head Constable Hari Prakash, posted at nearby police station Dehradun, who had signed on the said Form VI, could not be examined by the prosecution before the trial court Prosecution examined only Mr. Ajay Jaggi, who was employed in Nagar Nigam, Dehradun and had Signed on the receipt manifesting the payment of quantity of milk taken for sample. So, on account of non-examination of Head Constable Hari Prakash, a witness shown in Form VI, the conviction of the accused revisionist is illegal and against the provisions of the Act. 3. Ajay Jaggi, who was employed in Nagar Nigam, Dehradun and had Signed on the receipt manifesting the payment of quantity of milk taken for sample. So, on account of non-examination of Head Constable Hari Prakash, a witness shown in Form VI, the conviction of the accused revisionist is illegal and against the provisions of the Act. 3. In support of his argument, leamed Counsel relied upon a judgment rendered by this Court in Criminal Appeal No. 148/2007, Chief Food Inspector, Local Health Authority, Nainital v. Shri Jagtar Singh, reported in 2008 N.C.C. 453; wherein learned Single Judge of this Court has held that the provisions contained under Section 10(7) of the Act are mandatory in nature for the purpose of compliance thereof. It is mandatory for the Food Inspector to get witnessed the action of taking of the sample, under clause (a) of sub-section (1) of Section 10 of the Act, by one or more persons and take his or their signature on Form VI. The Court further held that if none of the witnesses, who witnessed taking of the sample, is examined by the prosecution, then it creates doubt as to the truthfulness of the prosecution story and benefit of doubt must be given by the trial court to the accused. 4. The precedent is not at all application in this case inasmuch as Head Constable Hari Prakash, no doubt could not be examined by the prosecution, but another witness Ajay Jaggi, who was present at the time of taking the sample and had also signed on the receipt Ex. Ka-2, has been examined by the prosecution. This witness has proved the taking of sample by the Food Inspector. 5. Fortiori, the Hon’ble Apex Court, in case of Prem Ballab & Another v. The State (Delhi Administration), reported in (1977) 1 SCC 173, has held that in cases tried under the Act, prosecution can be based on the sole testimony of Food Inspector. Rule of corroboration by independent witness is one of prudence and not of law. Hence, where the panch witness turned hostile, the prosecution case based on the testimony of the Food Inspector alone cannot be thrown out. If it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the maneuver of bribing the punch witnesses. 6. Hence, where the panch witness turned hostile, the prosecution case based on the testimony of the Food Inspector alone cannot be thrown out. If it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the maneuver of bribing the punch witnesses. 6. In yet another case of Municipal Council v. Nanak Chand, reported in 1979 F.A.J. 123, wherein the trial court had acquitted the accused on account of non-supporting of the prosecution story by the witnesses whose signatures were obtained on the document of sample at the time of taking the sample, Rajasthan High Court upset the judgment of trial court and held that the solitary statement of Food Inspector coupled with the documents can be acted upon and it cannot be said that there was non-compliance of Section 10(7) of the Act. 7. In the instant case, as has been stated above, the fact witness Ajay Jaggi whose signatures were obtained on the receipt at the time of taking of the sample, has been examined before the court below, and this witness has fully corroborated the version of Food Inspector regarding taking of the sample. 8. Another argument put forth by the leamed Counsel for the accused revisionist is that sending of the notice, which is a requisite under Section 13(2) of the Act, was not complied with in its true spirit because the notice was sent to the accused at 78, Dharmpur, Dehradun, while sample was taken from his dairy situated at 73 Race Course, Dehradun. This argument is also not acceptable for the reason that main purpose of sending notice to the accused, as per the provisions of the said’ Section of the Act, is to effect the service upon the accused. In the present case, the accused himself had disclosed the address where the notice was sent to him (at 78 Dharmpur, Dehradun) in his statement under Section 313 CrPC as well as on Form VI at the time of taking of the sample. 9. Learned Counsel further argued that in the sanction Ex. Ka-9, there is manipulation in the sample number and it has been changed from 91 to 191 without putting the initials of the authority concerned. 9. Learned Counsel further argued that in the sanction Ex. Ka-9, there is manipulation in the sample number and it has been changed from 91 to 191 without putting the initials of the authority concerned. This argument is also not tenable because, firstly, the alleged manipulation appears to have taken place on account of jumping of the keys of typewriter machine which has been rectified and made clear by writing again from the pen and, secondly, the sample which was prepared at the spot bears the number 191 and the same was sent to the Food Laboratory and its report also ratifies the same number. 10. It has lastly been argued by the leamed Counsel for the accused revisionist that Food Inspector has deposed that sample was sent to Public Analyst, Lucknow but the report Ex. Ka-7 bears the stamp of Regional Public Analyst, Meerut This is also not acceptable because the Public Analyst Dr. S.C. Tiwari, who was working in the office located at Lucknow, was the office of Public Analyst for whole of undivided state of Uttar Pradesh, and the working of the same was distributed amongst different regional units in the same office. This fact is clearly evident if the seal, which has been put below the signature of Dr. S. C. Tiwari, is viewed in its entirety. 11. For the reasons recorded above, the arguments advanced by learned Counsel for the accused revisionist, are wholly untenable and cannot be sustained. Conviction of the accused revisionist has rightly been affirmed by the appellate court, which has also correctly modified the sentence awarded by the trial court to the accused from one year’s rigorous imprisonment to six months’ rigorous imprisonment leaving intact the punishment of fine. I do not find any illegalility, irregularity or impropriety in the impugned judgments and orders passed by the courts below. 12. Resultantly, the revision being devoid of merit is hereby dismissed. The conviction and sentence, as modified by the appellate court, are hereby upheld. The revisionist is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence. However, the period during which the accused revisionist remained behind the bars in connection of this crime shall be adjusted after verifying the same from the records. 13. Let a copy of this judgment and order be sent to the court below for compliance. He shall be taken into custody forthwith to serve out the sentence. However, the period during which the accused revisionist remained behind the bars in connection of this crime shall be adjusted after verifying the same from the records. 13. Let a copy of this judgment and order be sent to the court below for compliance. Lower court records be also sent back.