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2014 DIGILAW 212 (ALL)

GANNU YADAV v. STATE OF U. P.

2014-01-17

BHARAT BHUSHAN

body2014
JUDGMENT Hon’ble Bharat Bhushan, J.—This criminal revision is directed against the judgment and order dated 10.12.1987 passed by Vth Additional Sessions Judge, Kanpur Nagar passed in Crl. Appeal No. 85/1987 arising out of Case No. 1071/1985 under Section 7/16 Prevention of Food Adulteration Act (in short P.F.A. Act), P.S. Bidhnoo, district Kanpur Nagar whereby the said criminal appeal was dismissed. 2. This criminal revision is very old yet none appeared on behalf of revisionist. This Court on 23.7.2013 passed the following orders : “Sri Rajesh Ji Verma, learned counsel for the revisionist is in a habit of sending illness slip regularly in this revision filed in the year 1987 and he is not ready to argue this revision since last 25 years. The revisionist was convicted and sentenced under Section 7/16 of the Prevention of Food Adulteration Act, 1954. The appeal filed against conviction was dismissed and the revision is pending since last 25 years. Lower Court record is annexed with the file of the revision. Learned counsel for the revisionist has sent illness slip today again which is accepted for today on the condition that in future, no adjournment shall be granted at any cost even on the illness slip or any other ground of the learned counsel for the revisionist. List peremptorily on 26.8.2013.” 3. Despite the aforesaid order, learned counsel for the revisionist did not not appear on the date fixed. Revision was listed peremptorily. Lower Court record is available. Therefore, the Court is constrained to decide the criminal revision with the help of learned A.G.A. 4. Brief facts of the case are that on 12.3.1985 about about 11:30 am. on Hamirpur Road in front of Primary Health Centre Bidhnoo, revisionist Gannu Yadav was found selling mixed milk of cow, buffalo and goat. He was carrying milk in drums on his cycle for the purpose of sale. The Food Inspector took the sample of that milk on the payment of requisite fee in accordance with the prevailing rules. The sample of mixed milk was divided in two parts. Formalin was added and after performing the requisite duties, the sample was sent to public analyst for test. The report of public analyst concluded that the milk sample is adulterated as milk fat and non-fat-solids were found deficient in comparison to the prescribed standard. A complaint was lodged under Section 7/16 PFA Act. Formalin was added and after performing the requisite duties, the sample was sent to public analyst for test. The report of public analyst concluded that the milk sample is adulterated as milk fat and non-fat-solids were found deficient in comparison to the prescribed standard. A complaint was lodged under Section 7/16 PFA Act. The prosecution and defence evidence was recorded and trial Court found revisionist, Gannu Yadav guilty of offence under Section 7 (1) 16 (1) (A) (1) of PFA Act and was, accordingly, convicted and sentenced for a rigorous imprisonment of six months and a fine of Rs. 1000/- with default stipulation. An appeal filed against the said order was dismissed on 10.12.1987. Aggrieved, present revision has been filed. 5. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 6. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely. 7. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon’ble Supreme Court in “State of Kerala v. Putthumana ILLath Jathavedan Namboodiri,” AIR 1999 SC 981 , has held that the High Court while hearing revisions does not work as an Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. 8. Hon’ble the Apex Court in “Jagannath Chaudhary v. Ramayan Singh”, AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. 8. Hon’ble the Apex Court in “Jagannath Chaudhary v. Ramayan Singh”, AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In “Munna Devi v. State of Rajasthan and others” AIR 2002 SC 107 , it has been further held that while exercising the revisional power the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do. 9. The revisionist has claimed that Court below did not have sufficient evidence to conclude that milk was for sale and; that no authentic and reliable evidence was available to support this conclusion. This argument is misplaced as the testimony of Food Inspector is available on record. There is no law which says that the testimony of Food Inspector cannot be accepted if found reliable and trustworthy. In fact the presence of Gannu Yadav on spot is proved by the official papers executed at the time of lifting the sample. The trial Court as well as the appellate Court were not impressed by the argument raised on behalf of revisionist/accused that he was taking 32 liters of milk in two drums on behalf of several villagers for offerings in the Baradevi Temple. The appellate Court considered the argument completely bogus. I am afraid the conclusion of trial Court and appellate Court are not misplaced. Ordinarily 32 litres of mixed milk is not carried for offerings to the deity on behalf of several people. The accused/revisionist was carrying the milk in two drums of 16 litres each on bicycle. The Court below concluded village people will not collect such a large quantity of milk and send it through revisionist/accused. In any case, no trustworthy evidence was produced on behalf of accused/revisionist for establishing that he was carrying milk on behalf of village people for offerings it to the deity. Prosecution has discharged his obligation by proving that accused/revisionist was carrying milk for sale. If revisionist wanted to refute this allegation, it was incumbent upon him to prove that the milk belonged to several people and he was merely carrying this milk for offerings in the temple. 10. Prosecution has discharged his obligation by proving that accused/revisionist was carrying milk for sale. If revisionist wanted to refute this allegation, it was incumbent upon him to prove that the milk belonged to several people and he was merely carrying this milk for offerings in the temple. 10. The revisionist has also challenged the sanction accorded by the competent authority saying that it was accorded without application of mind. A perusal of lower Court record reveals that each and every paper was examined by the sanctioning authority. Each official paper bear the seal and signature of sanctioning authority indicating perusal of all relevant papers before sanctioning the prosecution. Therefore, the sanction cannot be challenged on this ground. 11. The argument that sample was taken without stirring and adding required quantity of formalin is misplaced for the simple reason that public analyst found the milk sample fit for examination. Once the public analyst finds that sample fit for analysis, its report cannot be rejected on the ground that requisite quantity of formalin was not added. 12. The claim of revisionist for benefit of Probation of Offenders Act 1958 is also misplaced as Section 20 A A of PFA Act forbids grant of benefit of Probation of Offenders Act 1958 and Section 358 of Cr.P.C. unless accused is under 18 years of age. There is no evidence on record that accused was under 18 years of age at the time of alleged incident. In fact no such claim was either raised before trial Court or appellate Court. 13. Considering all facts and circumstances, present criminal revision is liable to be rejected and is accordingly dismissed. 14. Let a copy of this judgment and record of the trial Court be sent to the concerned Court within 15 days for compliance.