Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2233 (ALL)

Rakesh Pal v. State of U. P

2014-07-28

RANJANA PANDYA

body2014
JUDGMENT Ranjana Pandya, J. 1. This revision has been preferred against the judgment and order dated 02.08.1988 passed by the learned Additional Sessions Judge, Budaun dismissing the appeal No. 52 of 1987 filed by the revisionist. 2. Brief facts of the case are that on 24.10.1987 at Budh Bazar, Dataganj, Budaun at about 7.30 a.m. Food Inspector Umrao Singh checked the accused, who was found selling milk and exhibiting the sale of milk. The Food Inspector stopped the witness Shyam Pal Singh in whose presence Food Inspector delivered the notice form No. 6 to the accused and on having doubt purchased 660 milliliter of milk from the accused on payment of Rs. 2/- and issued a receipt of the same to the accused. The Food Inspector divided the sample into three parts, filled them in the bottles and sealed them and affixed slip over the three bottles having mixed formalin in all the three bottles. Out of three bottles one sample was sent to the Public Analyst, Lucknow for chemical examination. According to the report of the Public Analyst, Lucknow, 40% fatty solids were found absent in the sample. Thus, the sample was found adulterated. The Food Inspector made a report in this behalf to the Chief Medical Officer to grant sanction to the Food Inspector for prosecuting the accused under section 7(1)/16(1)A of Prevention of Food Adulteration Act. 3. The prosecution examined Umrao Singh, the Food Inspector as PW-1, Ajaz Ahmad, Food Clerk as PW-2, and independent witness Shyam Pal Singh as PW-3. 4. The learned lower court after perusal of the evidence on record found the accused guilty under section 7(1)/16(1) Prevention of Food Adulteration Act and convicted and sentenced him to undergo six months rigorous imprisonment and imposed a fine of Rs. 2000/- and in default of payment of fine to further undergo two months rigorous imprisonment. Feeling aggrieved the accused filed Criminal Appeal No. 52 of 1987, which was decided by the impugned order dated 02.08.1988, dismissing the appeal. 5. Feeling aggrieved from this order, the present revision has been filed. 6. I have heard the learned counsel for the revisionist and learned AGA and perused the record. 7. Feeling aggrieved the accused filed Criminal Appeal No. 52 of 1987, which was decided by the impugned order dated 02.08.1988, dismissing the appeal. 5. Feeling aggrieved from this order, the present revision has been filed. 6. I have heard the learned counsel for the revisionist and learned AGA and perused the record. 7. Learned counsel for the revisionist has contended that there was no independent witness to support the prosecution, but I think according to the report Shyam Pal was an independent witness, who has supported the fact that in his presence sample of milk was taken from the revisionist and it was sealed in his presence by the Food Inspector. He has also said that notice was given by the Food Inspector. The Food Inspector has no enmity with the revisionist, and therefore, there is no ground of false implication. 8. Another contention is that the milk carried by the revisionist was not for sale. In the statement under section 313 Cr.P.C., the revisionist has stated that he was taking the milk to the house of Lalman, Amin and he does not sell the milk. This contention is rejected because 660 ml milk was purchased by the Food Inspector from the revisionist and a sum of Rs. 2/- was paid as consideration. This transaction itself amounts to sale of milk and the contention of the revisionist that Shyam Lal, PW-3 stated that the revisionist had no measuring utensil, has no legs to stand. 9. It is well settled law that the evidence in revision as far as it relates to the factual aspects cannot be reassessed as can be don in appeal because it will be beyond the jurisdiction of the revisional court, who reassessed the evidence. The Hon'ble Apex Court in AIR 1999 SC 981 State of Kerala vs. Putthumana Illath Jathavedan Namboodiri has held that the High Court while hearing the revisions does not work as Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. Thus, it is well proved fact on record that the revisionist was engaged in selling milk. 10. It has also been argued that copy of the Annalistic report has not been supplied to the accused. Thus, it is well proved fact on record that the revisionist was engaged in selling milk. 10. It has also been argued that copy of the Annalistic report has not been supplied to the accused. This argument is also not substantiated by the evidence on record because the copy of information and registered receipt is on record being Exh. Ka-9 and Ka-1. 11. Learned counsel for the revisionist has placed reliance upon the judgment in N. Sukumaran Nair vs. Food Inspector, Mavelikara, Laws (SC) 1995 (1), in which it has been held that " the offence took place in the year 1984. The appellant has been awarded six months' simple imprisonment and has also been ordered to pay a fine of Rs. 1,0000.00 Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial court a sum of Rs. 6,000.00 as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure. 12. I have gone through the impugned judgment and also material on record. It is well settled position of law that the High Court will exercise its revisional power where there is 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. 13. 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. 14. Thus, in exercise of revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. 15. 14. Thus, in exercise of revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. 15. In another case reported in AIR 1993 Supreme Court 1126 State of Karnataka vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be inferred with by the High Court in absence of any special circumstances or unless there is any perversity. 16. Considering the limited scope of revisional jurisdiction it is clear that the evidence recorded by the trial court and well discussed and appreciated by the Appellate Court is not required to be again re-appreciated on the point raised by the learned counsel for the revisionist. 17. Learned counsel for the revisionist has argued that the accused said that the milk was of cow milk. Accordingly, it is not adulterated because in cow's milk there is to be fat 3.25% gm whereas in the analystic report, Exh. Ka-5 milk fat is 3.5%, which is higher than prescribed standard for cow's milk. In the prosecution evidence, it has been emphasised that the milk was of cow if at all it was cow's milk as has been alleged by the revisionist, there was no occasion why he could not produce independent witness before this Court. Besides when the revisionist was asked under section 313 Cr.P.C. as to when the milk was taken in his possession, it was detected that 45% less fat was found instead of replying that milk was that of cow, he said that he has nothing to say in this regard. Hence, if the prosecution has proved its case, the burden lies on the accused to prove that he should state something which is personally within his knowledge. 18. Counsel for the revisionist has also argued that compliance of section 7 has not been done, but there is nothing to substantiate his argument before this Court. 19. Learned counsel for the revisionist has further argued that the compliance of rule 7 of the Prevention of Food Adulteration Rules has not been done. 20. 18. Counsel for the revisionist has also argued that compliance of section 7 has not been done, but there is nothing to substantiate his argument before this Court. 19. Learned counsel for the revisionist has further argued that the compliance of rule 7 of the Prevention of Food Adulteration Rules has not been done. 20. Rule 7 sub-rule (3) reads as follows: (3) The public analyst shall, within a period of [forty days] from the date of receipt of any sample for analysis, [send by Registered post or hand] to the Local (Health) Authority a report of the result of such analysis in Form III: 21. If the above provisions are read carefully, it will mean that the public analyst shall send his report within 40 days to the Local Health Authority and the Local (Health) Authority has been defined in section 2 of the Act, which reads as follows: Local (Health) Authority", in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of Health administration in such area with such designation as may be specified therein; 22. Now it is to be seen whether rule 7(3) is directory or mandatory. 23. In Maxwell on Interpretation of Statutes, Eleventh Edition, at page 362 it is suited as under: Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention; that is to say, such a requirement would be imperative. It is further stated on page 364 that: The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative. In Craies' Statutes Law, Seventh edition at page 62 it is stated thus: When a statute is passed for the purpose of enabling something to be done and prescribed the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory. At page 250 It is further states thus: The question whether the provisions in a statue are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who/have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of acts done. In Dattatraya vs. State of Bombay it was held as under: Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the court to hold such provisions to be directory only: the neglect of them not affecting the validity of the acts done. In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. May be, in a given case, if there is inordinate delay, the court may not attach any value to the report but merely because the time limit is prescribed, it can not be said that even a slight delay would render the report void or inadmissible in law. In this context it must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, Sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis inspite of the delay. Therefore, it must be shown that the delay has led to the denial of right conferred under section 13(2) and that depends on the facts of each case and violation of the time limit given in Sub-rule 3 of Rule 7 by itself can not be a ground for prosecution case being thrown out. 24. In the context, the expression "immediately" is only meant to convey "reasonable dispatch and promptitude" and no more. The idea is to avoid dilatoriness on the part of the official and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence and the expression "immediately" means to convey the sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of statutory right as provided. 25. In Craies' Statute Law, VIII Edn. at page 262 it is stated thus: It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.... That in each case you must look to the subject-matter, consider the importance of the provisions and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. Likewise in State of Kerala and others vs. Allasserry Mohammed and others, Hon. Untwalia, J. speaking for the Supreme Court and while holding that Rule 22 of Prevention of Food Adulteration Rules is only directory, held that 'If the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance. Therefore, we are of the view that Rule 7(3) is only directory and not mandatory. No interference is called for in this appeal. It is accordingly dismissed. 26. Therefore, we are of the view that Rule 7(3) is only directory and not mandatory. No interference is called for in this appeal. It is accordingly dismissed. 26. Thus, what has been said about the rules it has been concluded that there is no violation of rule 7(3). 27. It has been further argued that there is no independent witness in this case and the witness Shayam Lal, who is said to be independent is not independent witness. The Food Inspector, PW-1 has categorically admitted that he was known to the witness Shyam Lal one year prior to the incident. 28. The provisions as far as independent witness is concerned, is given in section 11, which reads as follows: 11. Procedure to be followed by food inspectors.-(1) When a food inspector takes a sample of food for analysis, he shall- (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14A; (b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed. Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person; 29. Referring back to witness Shyam Lal, just because the Food Inspector-PW-3 knew Shyam Lal from one year prior to the incident, he cannot be termed to be an interested witness. Shyam Lal, PW-3 has specifically admitted that the sample was taken in his presence and the sample was sealed in his presence. Although he has said that the accused had no measuring instrument, but the factum that 660 ml milk was sold to the Food Inspector for Rs. 2/- itself goes to show that he had sold milk to the Food Inspector. 30. Although he has said that the accused had no measuring instrument, but the factum that 660 ml milk was sold to the Food Inspector for Rs. 2/- itself goes to show that he had sold milk to the Food Inspector. 30. Both the courts below i.e. the trial court and the appellate court have given a categorical finding that the fact that the accused has no measuring instrument was not put to the Food Inspector, besides the courts below also found that Shyam Lal was an independent witness and I have no reason to interfere with this finding at all. 31. The Hon'ble Apex Court in Narrendra Champak Lal Trivedi vs. State of Gujarat (2012) 7 SCC 80 , has held that it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution to reduce the sentence on the ground of so called mitigating factors as that would tantamount to supplementing statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act. 32. Further in A.B. Bhaskar Rao Vs. C.B.I. (2011) 10 SCC 259 , the contention for reduction of sentence below the statutory minimum have been categorically rejected. 33. Learned counsel for the revisionist has further argued that there is no evidence to show that the revisionist was going to sell the milk, but as I have said earlier that these points have been discussed by the trial court and the appellate court also. No enmity against the Food Inspector has been alleged. 34. In 2000 Allahabad Law Journal 1939 and 2000 Criminal Law Journal 3929, it has been held that the conviction for sale of adulterated milk in which minimum sentence of imprisonment has been passed cannot be altered into fine only. 35. After considering all the materials on record and the legal proposition of law discussed above, I do not find any impropriety, illegality or irregularity in the impugned orders of the courts below and the revisionist has failed to prove that courts below have failed to consider the material evidence on record or have misread the evidence or have misappreciated the evidence on record. 36. 36. The revisionist has further failed to prove any perversity in the impugned order passed by the courts below and there is no ground what is to say sufficient ground for interfering or setting aside the impugned order of conviction and sentence confirmed by the appellate court. The revision is devoid of merits and is liable to be dismissed. 37. Accordingly, the revision is dismissed. 38. Interim order, if any, stands vacated. 39. Let the lower court record be sent back along with copy of this order for doing the needful.