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Allahabad High Court · body

2015 DIGILAW 106 (ALL)

SATYA NARAYAN UMAR v. STATE OF U. P.

2015-01-16

RAMESH SINHA

body2015
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Shailesh Kumar Tripathi, learned counsel for the revisionist and Sri R.K. Maurya, learned A.G.A for the State. 2. The revisionist by means of this revision has challenged the order dated 25.8.2014 passed by Additional Sessions Judge, Court No. 6, District Jaunpur illegally rejected the discharge application of the revisionist which was filed by the revisionist in S.T. No. 379 of 2010 (State v. Satya Narain) as Case Crime No. 361 of 2010, under Section 272 IPC, P.S. Sujanganj, district Jaunpur 3. The brief facts of the case are that on 18.3.2010 at about 1.25 noon opposite party No. 2 Shri Kishun Chauhan who was then posted as Supply Inspector in the area Mungra Badshahpur, district Jaunpur raided the shop of the revisionist suspecting some adulteration in the mustard oil (Kacchi Ghani). The raiding team took the sample and sent the same to the Public Analyst, Lucknow. Thereafter the opposite party No. 2 lodged FIR on 19.7.2010 at about 1 p.m. against the revisionist with regard to the said incident, which was registered as case crime No. 361 of 2010 at Police Station Sujanganj, district Jaunpur under Section 272 I.P.C. The sample in question which was sent by the Supply Inspector to the Public Analyst, Lucknow, was found to be adulterated as per the report of Public Analyst dated 17.4.2010. In pursuance of the Government Order No. G-617/88, 10-55 Kha/10 dated 11.5.2010, the Supply Inspector, opposite party No. 2 was directed to lodge the FIR against the revisionist. During investigation of the case, the statement of the informant as well as other members of the raiding team were recorded under Section 161 Cr.P.C. who supported the prosecution case. The statement of the Public Analyst Dr. S.C. Tiwari who prepared the report dated 17.4.2010 statement was recorded under Section 161 Cr.P.C. and has stated that the sample was found to be adulterated. After completion of investigation on 31.7.2010, a charge-sheet was submitted against the revisionist under Section 272 IPC. The revisionist who released on bail by this Court on 16.9.2010. The revisionist approached this Court by filing Criminal Misc. Application No. 141 of 2011 Sandhya Narayan Umar v. State of U.P. and another, which was disposed of by this Court vide order dated 5.4.2011 to move discharge application. In pursuance of the said order the revisionist moved discharge application before the Court below. The revisionist approached this Court by filing Criminal Misc. Application No. 141 of 2011 Sandhya Narayan Umar v. State of U.P. and another, which was disposed of by this Court vide order dated 5.4.2011 to move discharge application. In pursuance of the said order the revisionist moved discharge application before the Court below. The opposite party No. 2 also filed complaint under Section 7/16 of Prevention of Food Adulteration Act, 1954 before the Additional Chief Judicial Magistrate, Ist, Jaunpur on 18.10.2010 on the basis of the report of the Public Analyst dated 17.4.2010 and the said complaint is pending before the said Court till today. The discharge application was rejected by the trial Court by the impugned order passed on 25.8.2014, hence the present revision has been filed by the revisionist challenging the same. 4. It has been argued by learned counsel for the revisionist that the sample in question which was seized from the shop of the revisionist by the Supply Inspector and sent to the Public Analyst, a report of which was received on 17.4.2010 shows that the sample was found to be adulterated but the same was not found to be noxious. As per statement of the Public Analyst Dr. S.C. Tiwari recorded under Section 161 Cr.P.C. he too also stated that the sample was found to be adulterated but the substance found was not noxious. As a complaint has also been filed under Section 7/16 of P.F.A. Act by the opposite party No. 2 before the Court of Additional Chief Judicial Magistrate Ist, Jaunpur on 18.8.2010 on the basis of the report of the Public Analyst dated 17.4.2010 which is proceeding against the applicant, hence the present prosecution of the applicant under Section 272 IPC is wholly unwarranted. Moreover, no offence under Section 272 IPC is made out against the revisionist and the learned trial Court without considering the said fact has rejected the discharge application in a most mechanical manner without applying its mind. He further argued that the sample was taken by the Supply Inspector under the provisions of Prevention of Food Adulteration Act, 1954 on 8.3.2010. 5. Learned AGA opposed the prayer for quashing of the impugned order but could not dispute the fact that as per Public Analyst report, the sample in question was found to be adulterated but it was not found to be noxious. 6. 5. Learned AGA opposed the prayer for quashing of the impugned order but could not dispute the fact that as per Public Analyst report, the sample in question was found to be adulterated but it was not found to be noxious. 6. Considered the submissions advanced by learned counsel for the parties and perused the material brought on record. It is an admitted fact that a criminal complaint has been filed by opposite party No. 2 under Section 7/16 of Prevention of Food Adulteration Act, 1954 before the Additional Chief Judicial Magistrate, Ist, Jaunpur on 18.8.2010, copy of which is annexed as Annexure 7 to the accompanying affidavit. The Supply Inspector who has taken the sample from the shop of the applicant has sent the sample to the Public Analyst, Lucknow and as per report of Public Analyst, he has opined that “Saponification value unsaponifiable matter and bellier turbidity temperature of the sample exceed the prescribed maximum limits of 177.0, 1.2% and 27.5º c respectively for mustard oil and the sample is adulterated. 7. From the perusal of the report, it is clear that the sample exceeds the prescribed standard provided under the Prevention of Food Adulteration Act, 1954. Moreover the report of the Public Analyst also shows that he did not found anything noxious which may warrant the prosecution of the revisionist under Section 272 IPC. The parallel proceeding initiated by opposite party No. 2 Supply Inspector one under the Prevention of Food Adulteration Act against the revisionist and other by lodging the FIR is not permissible under law for the same offence. Moreover the offence under Section 272 IPC is a seperate and substantive offence. Even if the applicant is to be prosecuted under Section 272 IPC, there should be material evidence to show that the sample is noxious and simply because it is found to be adulterated does not warrant the prosecution of the applicant for offence under Section 272 IPC. 8. Even if the applicant is to be prosecuted under Section 272 IPC, there should be material evidence to show that the sample is noxious and simply because it is found to be adulterated does not warrant the prosecution of the applicant for offence under Section 272 IPC. 8. The contention of learned counsel for the revisionist also find substance from the material on record that the sample in question was also taken under the provisions of Prevention of Food Adulteration Act, 1954 as is evident from the Form 7 memo which was prepared by the Food Inspector of raiding party and the sample was also sent to the Public Analyst and all the exercise was done by the raiding party when the raid was done under the provisions of Prevention of Food Adulteration Act, 1954 and the papers were also prepared according to the said Act, copies of which has been annexed as S.A. 1 supplementary-affidavit and the present FIR appears to have been lodged by opposite party No. 2 by misinterpreting the Government Order dated 11.5.2010 though the complaint filed against the revisionist under the Prevention of Food Adulteration Act for the offence in question is still pending and going on, hence the proceedings against the revisionist on the basis of charge-sheet for prosecuting him under Section 272 IPC is bad in the eyes of law. Moreover no offence under Section 272 IPC is made out against the revisionist. Thus the impugned order passed by the Court below and the proceedings of the aforesaid case is hereby quashed. 9. The petition stands allowed. 10. It is made clear that the proceedings against the revisionist under Section 7/16 of Prevention of Food Adulteration Act, 1954 which is stated to be pending shall go on in accordance with law and be concluded expeditiously in accordance with law within the period of six months from the date of production of certified copy of this order before the trial Court without granting unnecessary adjournment to either of the parties if there is no legal impediment. ——————