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2013 DIGILAW 563 (MP)

Daryav Singh v. State of M. P.

2013-04-26

N.K.GUPTA

body2013
JUDGMENT The applicant was convicted for the offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the P.F. Act") vide judgment dated 17-1-1998 passed by the JMFC, Raisen in Criminal Case No. 64 of 1989 and sentenced for six months' rigorous imprisonment with fine of Rs. 1000/-. In Criminal Appeal No. 12/1989, the learned Sessions Judge, Raisen vide judgment dated 29-5-1999 dismissed the appeal. Being aggrieved with the aforesaid judgments passed by both the Courts below the applicant has preferred the present revision. 2. Prosecution's case in short is that on 30-8-1988 the Food Inspector, R.K. Singh (P.W. 1) was inspecting the various milk hawkers on the road from Raisen towards Sagar. In front of the College at Raisen, he found that the applicant was bring 8 ltrs. of milk in a can by the bicycle. The Food Inspector proposed to take a sample of the milk and thereafter, he purchased 750 mlts. of milk in a clean, odourless and dry pot, after making the milk homogeneous. Payment of the milk was done. Purchased milk was divided into three parts in three dry clean and odourless glass bottles. 20 drops of formalin were added in each of the bottle and thereafter, the bottles were closed by cork and duly sealed with thick paper and thereafter, slip issued by the Local Health Authority was also affixed on each of the bottles. Various memos were prepared. One part of sample was sent to the public analyst whereas remaining two parts were deposited in the office of the Local Health Authority. The public analyst, vide its report (Exh. P-16) found that the percentage of fat was 3.1% and percentage of solid non-fat was 5.33% and therefore, the milk of cow and buffalo sold by the applicant was found adulterated. The Deputy Director, Food and Drug Administration, Raisen vide order (Exh. P-17), directed the Food Inspector to file a complaint and thereafter, a complaint was filed before the Trial Court. A notice (Exh. P-19) under Section 13(2) of the P.F. Act was given to the applicant. An acknowledgment slip (Exh. P-20) was received. The applicant did not apply for analysis of the sample from the Central Food Laboratory. 3. The applicant abjured his guilt. He did not take any specific plea in the matter. A notice (Exh. P-19) under Section 13(2) of the P.F. Act was given to the applicant. An acknowledgment slip (Exh. P-20) was received. The applicant did not apply for analysis of the sample from the Central Food Laboratory. 3. The applicant abjured his guilt. He did not take any specific plea in the matter. However, Somath Singh (D.W. 1) was examined in support of the defence. 4. After considering the evidence adduced by the parties the learned Judicial Magistrate First Class, Raisen has convicted and sentenced the applicant as mentioned above whereas 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 submitted that the prosecution's sanction in the present case was not proper. It was necessary that the Sanctioning Authority was to be examined before the Trial Court. In support of his contention he has relied upon the order passed by the Single Bench of this Court in the case of Rajnikant and others Vs. V.K. Yati, 2009 (3) MPLJ 467 . It is also contended that no proper compliance of the provisions under Section 13(2) of the P.F. Act was done in the present case and therefore, the rights of the applicant were violated and violation was fatal. In support of his contention he has placed the reliance on the various orders passed by the Single Benches of this Court in the cases of Satish Vs. State of M.P., 2007 (1) M.P.H.T. 120 and Mohd. Maksud Vs. State of M.P., 2005 (3) MPLJ 147. In alternate, it is submitted that the applicant has faced the trial, appeal and revision since last 24 years and therefore, he may not be sent to jail. In this connection reliance is placed upon the order passed by the Single Judge of this Court in the case of Tulsiram Mehta Vs. State of M.P., 2009 (4) MPLJ 397 . 7. On the other hand, the learned Panel Lawyer has submitted that the applicant was found selling adulterated milk and therefore, he be punished in a proper manner. Sentence cannot be reduced to the minimum sentence as provided by the statute. State of M.P., 2009 (4) MPLJ 397 . 7. On the other hand, the learned Panel Lawyer has submitted that the applicant was found selling adulterated milk and therefore, he be punished in a proper manner. Sentence cannot be reduced to the minimum sentence as provided by the statute. In revision this Court is standing on the shoes of the Chief Judicial Magistrate concerned and it is to be seen that if any legal mistake is committed by the Courts below then any interference can be done in their judgments. 8. After considering the submissions made by learned Counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the Food Inspector has submitted the original order of Deputy Director, Food & Drugs Administration, Raisen to show that the prosecution's sanction (Exh. P-17) was given by the concerned authority. It is a settled law that the Sanctioning Authority may prove the order of the sanction or if the original order is produced before the Court then the Court has its own discretion to peruse the order and to examine as to whether the judicial discretion given to the Sanctioning Authority was properly exercised. There is no hard and fast rule that the Sanctioning Authority should be examined before the Trial Court. In the present case, if order (Exh. P-17) is perused then the Sanctioning Authority found that the applicant sold adulterated milk and therefore, a sanction was given. The order passed by the Single Bench of this Court in the case of Rajnikant (supra), cannot be applied due to factual difference. 9. Learned Counsel for the applicant has raised an objection about the compliance of the provisions under Section 13(2) of the P.F. Act. In the present case, the sample was taken on 30-11-1998 and the report of public analyst was issued on 7-1-1989. Thereafter, a notice under Section 13(2), Exh. P-19 was alleged to be sent on 2-3-1989 and the applicant appeared before the Trial Court for the first time on 24-1-1990. When the applicant appeared before the Court more than a year had passed after taking a sample and there was no point at that time for re-examination of sample because the preservative had already lost its effect within six months and the sample must have been deteriorated at that time. When the applicant appeared before the Court more than a year had passed after taking a sample and there was no point at that time for re-examination of sample because the preservative had already lost its effect within six months and the sample must have been deteriorated at that time. Under such circumstances, it is to be observed as to whether a notice under Section 13(2) of the P.F. Act was given in a proper manner or not. 10. The Food Inspector, Shri R.K. Singh (P.W. 1) has stated that the notice under Section 13(2) of the P.F. Act was sent as Exh. P-19 and an acknowledgment receipt (Exh. P-20) was received. The notice was given by the Local Health Authority and therefore, it was for the prosecution to examine the dispatch clerk of that authority to prove the issuance of the notice. Notice (Exh. P-19) is a copy of the notice sent to the Chief Judicial Magistrate, Raisen but no office copy of the Local Health Authority was proved to show that such type of notice was given to the applicant. It is also acceptable that no postal receipt is submitted in the case to show that the notice was dispatched to the applicant. It is true that once acknowledgment is submitted before the Court to show that the notice was received by the accused then there is no necessity to submit the postal receipt. Utility of a postal receipt arises when no acknowledgment slip is returned and hence a presumption may be taken on the basis of the postal receipt with the help of the provisions of the General Clauses Act. However, in the present case, it is not proved beyond doubt that the document (Exh. P-20) was the acknowledgment slip of the same notice. Notice (Exh. P-19) was alleged to be given on 2-3-1989 whereas the applicant was residing within Raisen District and there is a postal seal on the document (Exh. P-20) dated 16-3-1989. It was not possible that a letter dispatched on 2-3-1989 was given to the post office on 16-3-1989 or it was served upon the applicant after a delay of two weeks. Under such circumstances, it is doubtful that the acknowledgment slip (Exh. P-20) is the same which was sent to the applicant along with the envelop of the notice (Exh. P-19). 11. It is also doubtful that the Exh. Under such circumstances, it is doubtful that the acknowledgment slip (Exh. P-20) is the same which was sent to the applicant along with the envelop of the notice (Exh. P-19). 11. It is also doubtful that the Exh. P-20 contains the signature of the applicant. According to the prosecution, on documents (Exhs. P-9 and P-10) the Food Inspector took the signature of the applicant whereas on receipt (Exh. P-8) a thumb impression of the applicant was taken which indicates that the Food Inspector was not sure as to whether the applicant was able to put his signature on the documents or not. Also on the documents (Exhs. P-8, P-9 and P-10), it appears that the applicant was in habit to write down his complete name by appending his signature but, the signature appended on the documents (Exh. P-20) the word "Va" is missing. Similarly, the sign of small "e" (f) may have the word "sinh" in document (Exh. P-20) is quite different from its making in the documents (Exhs. P-9 and P-10). Also the signature appended by the applicant in the documents (Exhs. P-8, P-9 and P-10) are different. Under such circumstances, it cannot be said that the acknowledgment slip (Exh. P-20) bears the signature of the applicant and therefore, it cannot be said that the applicant had received a notice under Section 13(2) of the P.F. Act. 12. As discussed above, it is no where proved that the applicant received a notice under Section 13(2) of the P.F. Act and when he appeared before the Trial Court for the first time the sample was already deteriorated and therefore, right of the applicant to get the sample re-examined was violated. Violation of that right is fatal in the present case. In the light of the order passed by the Single Benches of this Court in the cases of Satish (supra) and Mohd. Maksud (supra), due to violation of right of the applicant under Section 13(2) of the P.F. Act, he could not be convicted for the offence of adulteration. Violation of that right is fatal in the present case. In the light of the order passed by the Single Benches of this Court in the cases of Satish (supra) and Mohd. Maksud (supra), due to violation of right of the applicant under Section 13(2) of the P.F. Act, he could not be convicted for the offence of adulteration. For mixed milk of cow and buffalo standard is fixed in Article A-11.01.11 in the Appendix 'B' of the Prevention of Food Adulteration Rules, 1955 by which the fat percentage should not be less than 4.5% whereas percentage of solid not fat should be 8.4% whereas, in the present case the fat percentage was found to be 3.1% and solid non fat was found to be 5.33% and it apparent that the milk was added with the water and therefore, the percentage of fat as well as solid non fat was reduced. However, since the right of the applicant under Section 13(2) of the P.F. Act was violated, he could not be convicted for adulteration of the milk and therefore, the learned Chief Judicial Magistrate as well as the learned Sessions Judge have committed an error of law in convicting the applicant for the offence of adulteration. 13. On the basis of the aforesaid discussion, the revision filed by the applicant appears to be acceptable. 14. Consequently, it is hereby accepted. The conviction as well as the sentence directed against the applicant for offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the P.F. Act are hereby set aside. The applicant is acquitted from the aforesaid charge. He shall be entitled to get the fine amount back if he has deposited before the Trial Court. 15. The applicant was on bail. His presence is not more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 16. Copy of the order be sent to the Appellate Court as well as the Trial Court along with their records for information and compliance.