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2012 DIGILAW 179 (ALL)

NANHKU v. STATE OF U. P.

2012-01-19

SURENDRA KUMAR

body2012
JUDGMENT Hon’ble Surendra Kumar, J.—Heard Sri R.C. Gupta, learned counsel for the revisionist and learned AGA for the State. 2. The revisionist Nanhku who was an accused in the trial Court, by way of filing this criminal revision has challenged the judgment and order dated 21.1.1995 passed by Judicial Magistrate, Ist, Mirzapur, whereby he was convicted under Section 7(5)/16 (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954 read with Rule 50 of the Prevention of Food Adulteration Rules 1955 and sentenced to undergo rigorous imprisonment for one month and fine of Rs. 300/-, in default of payment of fine, further to undergo rigorous imprisonment for fifteen days. The judgment and order of conviction and sentence passed by the trial Court was challenged by Nanhku before the learned Sessions Judge, Mirzapur, by filing Criminal Appeal No. 4 of 1995, Chandu and another v. State of U.P. and another, which was dismissed by the learned Sessions Judge, Mirzapur, affirming the conviction and sentence recorded against the accused Nanhku, vide judgment and order dated 19.8.1995. It is thus, the revisionist has challenged the judgment and order dated 19.8.1995 passed by the learned Sessions Judge in the aforesaid appeal and the judgment and order dated 21.1.1995 passed by the trial Court, through this revision. 3. The facts giving rise to the present revision are as follows: 4. The accused Nanhku is father and co-accused Chandu is his son. The accused Nanhku had obtained Licence No. P-6/87-88 for the year 1987-88 for sale of edible oils, spices, pulses, jaggery and biscuits etc. at Pandari. The term of licence expired on 31.3.1988. The accused Nanhku did not get the term of licence renewed for another financial year. He also did not wind up his business after expiry of the term of the licence. Sri Salik Ram Prasad who was the Food Inspector at Pandari, on 1.7.1988 at about 10:00 a.m. alongwith one Hari Ram House Visitor of Pandari inspected the shop of Nanhku. He found Chandu selling edible oils etc. at the aforesaid shop. He asked Chandu to show licence but he could not show any licence. The term of licence standing in the name of his father had already expired. He found Chandu selling edible oils etc. at the aforesaid shop. He asked Chandu to show licence but he could not show any licence. The term of licence standing in the name of his father had already expired. The Food Inspector, therefore, prepared the spot note and on 2.7.1988 reported the matter to the Chief Medical Officer, Mirzapur, seeking his consent to prosecute Nanhku and his son Chandu under Sections 7/16 of Prevention of Food Adulteration Act, 1954 read with Rule 50 of Prevention of Food Adulteration Rules 1955 (hereinafter referred to as the Act and Rules). The Chief Medical Officer, Mirzapur, accorded the consent on 22.7.1988. Accordingly, the Food Inspector instituted a complaint against duo under the aforesaid provisions of the Act and Rules. 5. The Food Inspector namely Sri Salik Ram Prasad was examined under Section 244 Cr.P.C. and then the accused persons were charged under Section 7 (V) read with Sections 16(1)(a)(ii) of the Act, read with Rules 50 of the Rules. The Food Inspector was cross-examined under Section 246 Cr.P.C. The prosecution further examined Sri A.A. Hasmi, Food Clerk of the Office of Chief Medical Officer, Mirzapur to prove the signature of the then Chief Medical Officer, Mirzapur on the sanction letter. 6. The first submission of the learned counsel for the accused-revisionist is that only allegation against him is that his son Chandu was exposing for sale the aforesaid articles after expiry of the term of licence and without any renewal of the expired licence which stood in the name of his father Nanhku. At the time of the spot inspection by the Food Inspector, Chandu could not show any valid licence, therefore, Nanhku could not have been attributed to the said offence and could not be found guilty for the said offence. Nanhku has been convicted and sentenced only on the ground that his son Chandu was exposing for sale the said articles on the relevant day. 7. Learned AGA opposing the plea of the revisionist has submitted that Chandu son of Nanhku was exposing the said articles for sale of the said articles in the same shop and it could not be said that he was selling the same without knowledge of the revisionist. 8. 7. Learned AGA opposing the plea of the revisionist has submitted that Chandu son of Nanhku was exposing the said articles for sale of the said articles in the same shop and it could not be said that he was selling the same without knowledge of the revisionist. 8. Learned counsel for the revisionist has further submitted that no independent witness was examined by the prosecution and the testimony of the sole Food Inspector could not be held reliable and trustworthy. 9. Learned counsel for the revisionist has further submitted that the revision was admitted by this Court on the ground of sentence only after agreeing with the submission of the learned counsel for the revisionist that sentence was too severe and the same had resulted in miscarriage of justice to the revisionist. 10. Thus, the main thrust of the argument of the learned counsel for the revisionist is on quantum of sentence only. On this point, it has been submitted by the learned counsel for the revisionist that the revisionist Nanhku at the time of dismissal of the appeal by the learned Sessions Judge, Mirzapur, was taken in custody on the same day i.e. on 19.8.1995 and then the revision was filed on behalf of Nanhku in this Court, when this Court vide order dated 29.8.1995 directed the revisionist to be released on bail on his executing a bond of Rs. 1,000/- with two local sureties each in the like amount, the revisionist had already served about 12 days in jail in this case. Fine of Rs. 300/- was deposited by him at the relevant time. The receipt thereof is annexed as Annexure No. 3 to the affidavit filed in support of this revision. 11. The revisionist according to his learned counsel was aged about 60 years at the time of filing of this revision in the year 1995. On this ground, the age of the revisionist is claimed to be 75 years as of now. 12. These facts are not disputed by the learned AGA appearing for the State. 13. Hon’ble Apex Court in the case of Vaithi @ Vaithianathan v. State of Tamil Nadu, (2011) 10 SCC 779 , while reducing the sentence of one month’s imprisonment awarded to the appellant to the period already undergone, has held that when offence of theft of electricity was committed ten years back then the period undergone would suffice. 13. Hon’ble Apex Court in the case of Vaithi @ Vaithianathan v. State of Tamil Nadu, (2011) 10 SCC 779 , while reducing the sentence of one month’s imprisonment awarded to the appellant to the period already undergone, has held that when offence of theft of electricity was committed ten years back then the period undergone would suffice. Hon’ble Apex Court in the reported case while dealing with conviction and sentence of the appellant in criminal appeal in respect of the case of theft of electricity considering that offence was committed ten years back and the appellant had already undergone 13 days’ imprisonment as against one month imprisonment awarded, reduced the same to the period already undergone. 14. Considering the material on record, submission advanced by the learned counsel for the parties and also keeping in view the nature of offence viz. non renewal of licence of his shop, the judgment and order dated 19.8.1995 passed by the learned Sessions Judge, Mirzapur, upholding the conviction of the appellant, revisionist herein Nanhku, is maintained. However, sentence of one month rigorous imprisonment is hereby reduced to the period already undergone by the revisionist Nanhku. The revisionist need not surrender before the Court. Bail bonds are hereby cancelled and sureties of the revisionist are discharged. The revision is partly allowed. ——————