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2013 DIGILAW 437 (MP)

Basant Rao v. State of M. P.

2013-04-02

N.K.GUPTA

body2013
JUDGMENT : The applicant was convicted for commission of offence punishable under Section 7(1) read with Section 16(1)(A)(ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “PF Act, 1954”) and sentenced for six months' rigorous imprisonment with fine of Rs.1000/-, by the Chief Judicial Magistrate, Betul vide judgment dated 19.9.2002 in Criminal Case No.437/1991. In Criminal Appeal No.88/2002, the learned Sessions Judge, Betul vide judgment dated 5.2.2003 dismissed the appeal of the applicant in toto. Being aggrieved with the judgments of both the Courts below, this criminal revision is preferred by the applicant. 2. Prosecution's case, in short, is that on 20.1.1991 at about 9:00 AM in the morning the Food Inspector Achal Singh (PW-2) went to inspect the various edible vendors at Bus Stand Betul. At that time the applicant came with three cans on his bicycle filled with milk. On enquiry he had informed that it was a mixed milk of cow and buffalo. After checking all the cans the Food Inspector proposed to take the sample of milk from one can having 10 liters. of milk. Thereafter the sample was taken and it was distributed in three dried, clean and odorless bottles and 20-20 drops of formalin were added. The sample was duly packed and the slip of the Local Health Authority was affixed on each part. One part of the sample was sent to the Public Analyst whereas two parts of the sample were deposited in the office of Local Health Authority. The Public Analyst vide his report dated 25.2.1991 found that the sample was adulterated. The complainant obtained a permission to file a prosecution from the Deputy Director Food and Drugs Administration and thereafter a complaint was filed on 7.5.1991 and a notice under Section 13(2) of the PF Act was given to the applicant. It was mailed by registered post on 13.5.1991. The applicant did not apply for analysis of the sample by the Central Food Laboratory. 3. The applicant-accused abjured his guilt before the trial Court. He took a specific plea that he was taking the milk for one Navange Babu, therefore he purchased the milk from Gulab Dhore for Navange Babu. In defence one Keshav Rao was examined. 4. The applicant did not apply for analysis of the sample by the Central Food Laboratory. 3. The applicant-accused abjured his guilt before the trial Court. He took a specific plea that he was taking the milk for one Navange Babu, therefore he purchased the milk from Gulab Dhore for Navange Babu. In defence one Keshav Rao was examined. 4. The learned Chief Judicial Magistrate, Betul tried the matter in summary manner and after considering the evidence adduced by the parties convicted and sentenced the applicant as mentioned above and the appeal filed by the applicant was dismissed in toto. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the applicant has challenged that the Food Inspector did not mix the milk of all the cans. He took the sample from one can only, that was violative to the rules. Similarly, the bottles were not packed properly, though those should have been packed in a proper manner, and therefore the Food Inspector did not comply the Rule 16(b) of the PF Rules, 1985. In support of his contention, he has placed his reliance on the judgment of the Single Bench of the Gujrat High Court in the case of “State of Gujarat Vs. Prajapati Amratlal Natvarlal”, (2008 Cri.L.J. 4065). It is also submitted that the provisions of Section 13(2) of the PF Act were not properly complied. In support of his contention, he has placed his reliance upon the judgments of this Court in the case of “Satish Vs. State of Madhya Pradesh”, [ 2007(1) MPHT 120 ] and in the case of “Mohd. Maksud Vs. State of Madhya Pradesh” [2005(3) MPLJ 147]. Therefore it was submitted that the applicant could not be convicted for that particular offence. In the alternate, it was submitted that the applicant has faced the trial, appeal and revision since the year 1991, therefore he may not be sent to the jail again. The learned counsel for the applicant has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of “Paramjit Singh Vs. Municipal Corporation of Delhi”, ( AIR 1982 SC 1095 ) and the order passed by the Single Bench of this Court in the case of “State of Madhya Pradesh Vs. Nanhelal” ( 1993 MPLJ 345 ). 7. Municipal Corporation of Delhi”, ( AIR 1982 SC 1095 ) and the order passed by the Single Bench of this Court in the case of “State of Madhya Pradesh Vs. Nanhelal” ( 1993 MPLJ 345 ). 7. On the other hand, learned counsel for the State has supported the impugned judgments of the Courts below. He submits that the conviction and sentence directed by the Courts below are based on sound reasonings and no illegality or perversity is visible in the impugned judgments. He further submits that the delay has been caused by the applicant himself, and therefore he could not get the advantage of the delay, hence his revision may be dismissed. 8. By considering the evidence adduced by the Food Inspector Achal Singh (PW-2) and Nena Yadav (PW-1), it appears that the sample was taken by the Food Inspector from the applicant in a proper manner and the sample was properly sealed. The learned counsel for the applicant has submitted that the sample was taken from one can only, whereas entire milk of three cans must have been mixed. It is apparent that the applicant was to supply the milk to the consumers from each of the cans separately, and therefore it was not necessary for the Food Inspector to mix the milk of all the cans. The milk which was kept in one can was kept for sale, and therefore if the Food Inspector chose to take sample from that can, then it was his choice, hence no illegality has been done by the Food Inspector if he did not mix the milk of other two cans. The applicant tried to show that the milk was not for the sale and he was taking the same for one Navange Babu. However, Navange Babu was not examined in the defence to say that the applicant was his employee and he was bringing the milk from one Gulab Dhore for his personal purposes. The statement given by the witness Keshav Rao (DW-1) is not acceptable, because he could not show his connection either with Gulab Dhore or with Navange Babu. Under such circumstances, the applicant was taking the milk for sale. 9. It is alleged by the learned counsel for the applicant that the sample was not taken in a proper manner and hence there was a violation of Rules 16(b) of the PF Rules. Under such circumstances, the applicant was taking the milk for sale. 9. It is alleged by the learned counsel for the applicant that the sample was not taken in a proper manner and hence there was a violation of Rules 16(b) of the PF Rules. According to that Rule, if the sample is taken in a bottle or jar, then it should be sealed on ends and wrapped in thick brown paper and ends of the paper should be folded and affixed by means of gum or other adhesive. Thereafter a proper slip of the Local Health Authority must be affixed. The Food Inspector Achal Singh has proved that he adopted the same method and then one part of the sample was sent to the Public Analyst, who found the sample intact in a sealed condition, whereas the remaining two parts of the sample were not requisitioned before the Court to show that they were not packed properly, and therefore it is not proved that the Rule 16(b) of the PF Rules was not complied. In the case of Prajapati Amratlal (supra) the Single Bench of the Gujrat High Court found that the ends of the paper in the sample were not clearly folded and the sample was not packed according to the rule, but such a situation could not be proved in the present case. Therefore the judgment of the Gujrat High Court is not applicable in the present case. 10. So far as the notice under Section 13(2) of the PF Act is concerned, the copy of the notice Ex.P-14 is produced before the Court, which was given on 9.5.1991 and postal receipt Ex.P-15 is also submitted by which it would be clear that notice was sent by registered post on 13.5.1991. The sample was taken on 20.1.1991, and therefore notice was given within four months of the sample taken. Under such circumstances, it cannot be said that the provisions of Section 13(2) of the Act were not followed. According to the provisions of the General Clauses Act, it shall be presumed that the notice which was dispatched by registered post was received by the applicant, and therefore it cannot be said that the Investigation Officer violated the provisions of Section 13(2) of the Act. Therefore, the orders passed by the Single Bench of this Court in the case of Mohd. Therefore, the orders passed by the Single Bench of this Court in the case of Mohd. Muksud (supra) and in the case of Satish (supra) cannot be applied in the present case due to factual difference. 11. On the basis of the aforesaid discussion, it was found that the Food Inspector took the sample from the applicant in a proper manner. A notice under Section 13(2) of the PF Act was given to the applicant, but he did not apply for analysis of the sample from the Central Food Laboratory. According to the report of the Public Analyst, in the sample in question, percentage fat was found 4%, whereas percentage of solid not fat was 5.96%. According to the Article A.11.01.11 of the Appendix B of the Act, 1954, it would be clear that for mixed milk the percentage of fat and solid not fat should be 4.5 and 8.5 respectively in the State of Madhya Pradesh, and therefore the sample in question was found adulterated. Under such circumstances, the learned CJM as well as the Appellate Court have rightly found that the applicant sold adulterated milk, and therefore both the Courts below have rightly convicted the applicant for the aforesaid offence. 12. So far as the sentence is concerned, it is true that the applicant has faced the trial, appeal and revision since the year 1991. His revision is pending since the year 2003. However, the delay has been caused by the applicant himself. If he would have requested, then his revision could have been heard at the earliest. There is a provision of minimum sentence for the offence committed by the applicant. The learned counsel for the applicant has placed his reliance upon the judgment of the Single Bench of this Court in the case of Nanhelal (supra) to show that due to delay, the statutory minimum sentence may not be passed. By perusal of that order, there is no specific reason mentioned by the Court to show as to how the minimum prescribed sentence may be relaxed. In the revision petition, the rights of this court are limited. The court can exercise the rights which are available to the trial Court. It is to be seen before this Court as to whether any legal mistake has been committed by the trial Court as well as the Appellate Court. In the revision petition, the rights of this court are limited. The court can exercise the rights which are available to the trial Court. It is to be seen before this Court as to whether any legal mistake has been committed by the trial Court as well as the Appellate Court. If an order defeats the statutory provisions of a particular enactment, then that order cannot be considered as a precedent It may be an order for a particular case, but it cannot be applied as a precedent in the present case. Therefore, the order passed in the case of Nanhelal (supra) cannot be considered as a precedent in the present case. In the case of Paramjit Singh (supra) Hon'ble the Apex Court has given benefit of probation to the accused, but due to factual difference, such type of benefit cannot be given to the applicant. Though, the present applicant has faced the trial, appeal and revision for a lengthy period, however, looking at his overt-act, there is no reason by which the statutory provisions of minimum sentence given in the Act should not be adopted. Consequently, nothing can be done in the sentence directed by both the Courts below. 13. On the basis of the aforesaid discussion, the present revision filed by the applicant cannot be accepted. Consequently, it is hereby dismissed. The conviction as well as the sentence directed against the applicant is hereby maintained. 14. The applicant is on bail, therefore he is directed to surrender before the trial Court without any delay so that his remaining jail sentence may be executed. He will get the period set off in which he remained in the custody during the trial, appeal and revision. 15. A copy of this order be sent to the trial Court as well as the Appellate Court along with their records for information and compliance. The trial Court is directed to arrest the applicant without any delay and to send him to the jail for execution of remaining jail sentence.