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2014 DIGILAW 3178 (ALL)

J. S. Prasad v. State

2014-10-16

SURENDRA SINGH

body2014
JUDGMENT Surendra Singh,J. Challenge in this revision is the judgment and order dated 12.4.1989 passed by Special Judge/ Additional Sessions Judge, Azamgarh in Criminal Appeal No. 10 of 1989 (Jai Shanker vs. State of U.P.) upholding the judgment and order dated 23.1.1989 passed by Special Judicial Magistrate, Azamgarh in Case No. 1329 of 1987 convicting and sentencing the revisionist under Section 7(i)/16(1)(a)(i) of Prevention of Food Adulteration Act for six months rigorous imprisonment with fine of Rs.1000/- in default stipulation two months further imprisonment. 2. The facts giving rise to this revision are that the revisionist Jai Shankar Prasad was a small shop keeper of Kasba Bilariaganj, P.S. Jiyanpur, District Azamgarh. On 30.8.1986 at about 8 a.m. a sample of turmeric (Haldi Saboot) was taken from accused revisionist and it was sent to the public analyst for examination and after examination the public analyst vide his report dated 13.10.1986 submits that the turmeric was insect infected 85.5% and for this reason it was held to be adulterated. A complaint was filed against the accused revisionist and he was summoned. The complainant Food Inspector Sri S.P. Pathak examined himself as PW 1 and narrated the entire complaint case on oath. Sri Chandrama Rai the clerk who sent registered letter with public analyst report to the accused revisionist was examined as PW 2. The prosecution did not produce Sri Thakur Prasad and Sri Nifikir Yadav, who were the employees of the department and signed as the recovery witnesses. No defence evidence was produced by the accused revisionist. 3. The learned Magistrate after hearing of the case came to the conclusion that charge under Section 7(i)/16(1)(a)(i) was substantially proved against the accused revisionist, therefore, convicted and sentenced him for six months of rigorous imprisonment with fine of Rs.1000/-. Aggrieved with the judgment and order, the accused revisionist preferred criminal appeal No. 10 of 1989 before the Court of Sessions Judge, Azamgarh. His appeal was heard and decided by Special Judge/Additional Sessions Judge, Azamgarh, who dismissed the appeal on merits and confirmed the judgment and order of the trial court. Hence this revision. 4. Learned counsel appearing on behalf of the revisionist Sri Rahul Sripat contended that admittedly turmeric (Haldi Saboot) which was taken from the accused revisionist by the Food Inspector was quite healthy and did not appear to be insect infected. Hence this revision. 4. Learned counsel appearing on behalf of the revisionist Sri Rahul Sripat contended that admittedly turmeric (Haldi Saboot) which was taken from the accused revisionist by the Food Inspector was quite healthy and did not appear to be insect infected. PW 1 (complainant) had categorically admitted that Haldi which was taken by him from the accused revisionist was quite healthy and did not appear to be insect infected. In his cross-examination he further deposed that it was yellow in colour even its colour did not fade so much, so he took its sample suspecting it to be coloured with prohibited colours. He stated the following words: gYnh ihys jax dh FkhA eq>s gYnh ds jax ij lansg gqvk FkkA tkap fjiksZV esa jax dk dksbZ nks"k ugha ik;kA gYnh ?kquh gqbZ ugha fn[kkbZ nh FkhA gfYn;ksa dk tks uewuk fy;k Fkk mu gfYn;ksa dk jax ns[kus esa LoLFk FkkA 5. It is argued that according to the public analyst report 85.5% Haldi was found insect infected which could have been visible with naked eyes at the time of taking sample, therefore it is clear that at the time of examination either it was a different Haldi or the sample became rotten after it was taken on 30.8.1986 i.e. admittedly in rainy season. Moreso, when admittedly nothing preservative was mixed with it. It was next contended that the entries of the department and arrival of the inspector in the diary are missing. Sri Thakur Prasad and Nifikir Yadav, who were the employees of the department and have signed as recovery witnesses were not produced in support of the prosecution case. Admittedly they were not the resident of the place where the shop of the revisionist exists, so their presence on the spot at the time of taking sample is wholly doubtful. It is further stated that had the turmeric (Haldi Saboot) been insect infected at the time taking its sample, it would have been noticed by the complainant at the same time. Supplementing his arguments he submitted that this incident is of the year 1986. The trial court passed the order of conviction on 23.1.1989 and the appeal filed by the accused revisionist was decided on 12.4.1989. Supplementing his arguments he submitted that this incident is of the year 1986. The trial court passed the order of conviction on 23.1.1989 and the appeal filed by the accused revisionist was decided on 12.4.1989. Thus a period of about 28 years has passed since the date of the incident and a period of 25 years has passed from the date of order of the appellate court. He further submitted that the accused has remained incarceration for more than 20 days. It was further argued that now the accused revisionist is aged about 80 years suffering from several medical ailments and is bedridden. He is on bail and had not misused the privilege of bail during this period. He placed reliance on the decision of the Hon'ble Apex Court in Laskari Ram vs. State of U.P. 2001 SCC (Crl.) 111, in which it has been held by the Hon'ble Apex Court that the turmeric being the primary food and adulteration being due to the natural causes and not due to human agency so it is proper that minimum sentence should be awarded to the accused. 6. On the other hand, the learned AGA has opposed this revision. He contended that the sentence of minimum six months has been provided under Section 16 of the Prevention of Food Adulteration Act and so the imprisonment cannot be reduced. 7. I have heard the learned counsel for the revisionist, learned AGA for the state and have perused both the judgments and orders impugned and also material placed on record. 8. On 30.8.1986 sample of turmeric (Haldi Saboot) was taken from the revisionist Jai Shankar. Turmeric was found 85.5% insect infected. Both the courts below have rightly held that turmeric was adulterated. Looking to the statement of the complainant PW 1 that at the time of taking sample of turmeric (Haldi Saboot) it was not insect infected, the whole prosecution story becomes doubtful. Moreover having regard to the fact that the incident had taken place almost 28 years ago the revisionist had already been in jail for about 20 days and now he is more than 80 years of age suffering from several medical ailments and is bedridden. He is on bail and had not misused the privilege of bail during this period. Moreover having regard to the fact that the incident had taken place almost 28 years ago the revisionist had already been in jail for about 20 days and now he is more than 80 years of age suffering from several medical ailments and is bedridden. He is on bail and had not misused the privilege of bail during this period. In that view of the matter and the circumstances mentioned hereinabove, I am of the view that it is a fit case in which for adequate and special reasons lessor punishment under the proviso of section 16(1) should be awarded. Sending a man to jail after 28 years for a technical offence appears to be too harsh and is not likely to serve any useful purpose by sending him to jail for serving out a term of imprisonment which remained unversed. I propose to maintain the fine of Rs.1000/- awarded by the court below. In these circumstances following the cases of Bhagwan Das Motilal Navalani vs. State of Maharashtra 1988 (25) ACC 52, Umrao Singh vs. State of Haryana 1982 EFR 46 and Nandlal vs. State of Uttrakhand and another 2010 (4) SCC 562 , I allow the revision in part and reduce the sentence of the revisionist to the period already undergone. Sentence of fine is confirmed. The revisionist is allowed two months' time to deposit the fine before the court concerned. 9. The revisionist is on bail. He need not surrender. His bail bond and surety bonds are discharged. 10. Let a copy of this order be sent to the District Judge/Trial Court along with lower court record.