Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1125 (MP)

Lalu Bhagat v. State of Madhya Pradesh

2013-09-17

A.K.SHRIVASTAVA

body2013
ORDER Feeling aggrieved by the judgment of conviction and order of sentence dated 12.9.1997 passed by learned Judicial Magistrate, Shahdol in Criminal Original Case No. 1200/1993 whereby the applicant has been convicted for the offence punishable under Section 7(1) read with Section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (for short, the Act of 1954) sentencing him to suffer six months S.I. and fine of Rs. 1000/-; in default further SI of three months which has been affirmed by learned First Additional Sessions Judge, Shahdol in Criminal Appeal No. 145/97 decided on 2.8.1999, the applicant has knocked the doors of this Court by preferring this revision application under Section 397/401, Cr.P.C. 2. Sans unnecessary details, the facts lie in a narrow compass. Suffice it to say that on 31.5.1993 the Food Inspector P.D. Khare came to the grossery shop of the applicant and made a demand of sevain and suspecting the same to be adulterated, gave notice in form No. 6 and bought three packets of sevain containing 200 gms. in each packet in total 600 gms. after making payment of Rs. 13.50 paise to the applicant. A receipt was also obtained. All the three packets of sevain were separately sealed in a thick paper wrapped with the help of thread and was sealed in accordance with law. One packet was sent to the Food Analyst, the other packet was sent to the local Health Office and the third packet was kept in the office of the Food Inspector. The sample of sevain was received in the office of Public Analyst on 3.6.1993. In the report dated 12.7.1993 the sample was not found in conformity with the standard laid down under the Food Adulteration Rules, 1955 (in short, the Rules). The report of sample was sent to the Food Inspector. It is said that the Local Health Authority after having served notice under Section 13(2) of the Act of 1954 prosecuted the applicant. 3. The learned Trial Court framed charge punishable under Section 7/16 of the Act of 1954 which applicant denied. Thereafter the prosecution examined Food Inspector P.D. Khare, the panchnama witness Amritlal Gupta and S.D. Choudhary clerk of the office of Dy. Director (Food). 4. 3. The learned Trial Court framed charge punishable under Section 7/16 of the Act of 1954 which applicant denied. Thereafter the prosecution examined Food Inspector P.D. Khare, the panchnama witness Amritlal Gupta and S.D. Choudhary clerk of the office of Dy. Director (Food). 4. The learned Trial Court on the basis of the evidence placed on record found that charge is proved and eventually convicted the applicant for the aforesaid charge and passed the sentence of six months S.I. and fine. The appeal which was filed by the applicant has been dismissed by learned First Appellate Court. In this manner, this revision application has been filed by the applicant. 5. Three contentions have been raised by learned counsel for the applicant. His first contention is that sampling and sealing was not done by the Food Inspector strictly in terms of Rule 16 of the Rules of 1955 because only in a thick paper it was sealed and the thick paper cannot be said to be a container. In support of his contention, learned counsel has placed heavy reliance on the Full Bench decision of Punjab and Haryana High Court in State of Punjab v. Raman Kumar, 1998 Cri LJ 737 and also place reliance upon the Single Bench decision of this Court Gurumukh Das v. State of M.P., 2000 Cri LJ 2419. His second contention is that there is total non-compliance of Section 13(2) of the Act of 1954 because the notice as required under this provision has not been sent either by the Public Analyst or by the Local Health Authority. In support of his contention, learned counsel has placed heavy reliance on C. Mohammed v. State of Kerala (2006) 13 SCC 290, Girishbhai Dahyabhai Shah v. C.C. Jani and another (2009) 15 SCC 64 and a Single Bench decision of this Court in Municipal Corporation, Khandwa v. Narsingh Das, 2000(3) MPLJ 336 : (2000 Cri LJ 4906 (MP)). His third and last contention is that looking to the mandatory provisions of Section 19(2) of the Act of 1954 it was incumbent upon the prosecution to array the manufacturer, Jaya Food Industries Limited, Basheerbagh, Hyderabad as well as the Dealer Madhavdas Sanjay Kumar of Shahdol as party because the Sevain was sold by the said manufacturer and to the dealer from whom appellant bought the sevain. 6. 6. On the other hand Shri Anubhav Jain, learned Public Prosecutor argued in support of the impugned judgment passed by the two Courts below and submitted that fastening and wrapping of the sample was done in accordance with the prescribed Rule 16 and further notice under Section 13(2) of the Act of 1954 has been proved from the evidence of PW-3. Learned counsel further submits that looking to the scope of Section 19(2) of the Act of 1954, it was incumbent upon the applicant who is a vendor to prove that he bought the sevain packets from the manufacturer or from the dealer. Since it has not been proved by him, therefore, it cannot be said that there is total non-compliance of Section 19(2) of the Act of 1954. Hence, it has been prayed that this revision be dismissed. 7. Having heard learned counsel for the parties, I am of the view that this revision deserves to be allowed. 8. On bare perusal of the testimony of the public analyst P.D. Khare (PW-1), this Court finds that although he has stated that he sealed the packet of sevain which was already sealed by the manufacturer, but if his testimony is tested on the touchstone and anvil of seizure witness Amritlal Gupta (PW-2) this Court finds that after purchasing the packets of sevain they were torn and the contents of packets sevain was kept in a plate and thereafter the sampling was made in a thick paper. Amritlal Gupta (PW-2) who is a seizure witness is an independent witness and, therefore, according to me, the credential value of his evidence is having high degree in comparison to that of Food Inspector. That apart, this seizure witness Amritlal Gupta (PW-2) was never declared hostile and, therefore, the prosecution is bound by the statement of this witness. True, the Food Inspector in cross-examination para 10 has denied the suggestion that the three packets were torn and the sevain was collected in a plate as stated by the independent witness Amritlal Gupta. But, since there is evidence of the independent seizure witness, I am of the view that it is having great value. Even otherwise, looking to the contradictory evidence, it becomes highly doubtful as to how and in what manner the sampling was made. But, since there is evidence of the independent seizure witness, I am of the view that it is having great value. Even otherwise, looking to the contradictory evidence, it becomes highly doubtful as to how and in what manner the sampling was made. Thus, according to me, the sampling was made in stricto sensu to Rule 16 of the Rules of 1955 is not proved. Once the sampling is not found to be proved in accordance with the Rule 16, the conviction cannot be affirmed. 9. Coming to the second point raised by learned counsel for the applicant, this Court finds that the testimony of Food Inspector P.D. Khare (PW-1) is totally silent that he ever sent the notice under Section 13(2) to the accused. According to me, under Section 13(2), the Local Health Authority should send a notice under Section 13(2) of the Act. Although the notice Ex. P/15 is found to be sent by the office of the Dy. Director (Health) but who has sent it and by whom there is no evidence. PW-3 S.D. Choudhary who is only a Clerk, has simply said that notice was sent. He has not even said that he sent the notice by registered AD post. The Food Inspector also does not say that he had sent the notice. Hence, mandatory requirement of sending of notice stricto sensu to Section 13(2) of the Act of 1954 has not been proved. Therefore, I am of the view that on this count also, his conviction cannot be upheld. 10. Since on the aforesaid two counts the conviction of the applicant cannot be upheld and revision has to be allowed, I am not dealing with the third submission of learned counsel for the applicant. 11. For the reasons stated hereinabove, this revision is accordingly allowed. The impugned judgment of conviction and order of sentence of learned Trial Court and affirmed by the Appellate Court is hereby set aside and the applicant is acquitted from the charges punishable under Section 7(1) read with Section 16(1) (a) (i) of the Act of 1954. He is on bail. His bail bonds stand discharged. The amount of fine, if deposited, be refunded to him. Petition allowed.