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2016 DIGILAW 3887 (ALL)

RAM CHANDRA v. STATE OF U. P.

2016-12-02

SUDHIR AGARWAL

body2016
Hon'ble Sudhir Agarwal, J. 1. Heard Sri R.B. Sahai, learned counsel for the revisionist and learned A.G.A. for respondent-State. 2. This revision, under Section 397/401 Cr.P.C., has arisen from the judgment and order dated 30.05.2005 passed by Additional Chief Judicial Magistrate, Court No. 10, Fatehpur in Case No. 581 of 1996, convicting the revisionist under Section 2(i-a)(h) read with Section 7(i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the “Act, 1954”) and 16(1-A) read with Rule 5 of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “Rules, 1955”) and sentencing him to undergo six months rigorous imprisonment and fine of Rs. 1000/- and in case of default in payment of fine, two month's imprisonment has also to be served by revisionist. Against the aforesaid judgment, revisionist preferred Criminal Appeal No.26 of 2005, which has also been dismissed by Lower Appellate Court, i.e., Additional Sessions Judge, Court No.9, Fatehpur vide judgment dated 11.05.2007. Challenging both the aforesaid orders, revisionist has filed present revision. 3. The facts, in brief, are that a complaint being Case No. 581 of 1996 was lodged by Sri A.P. Shukla, Food Inspector, Fatehpur, stating therein that on 19.03.1996 at about 11 AM, the accused-revisionist, retail food seller, was found storing and displaying for sale 5 kilograms of mustard oil at Haswa under Police Station Thariaon, District Fatehpur. The Food Inspector introduced himself to the seller; and suspecting adulteration in the aforesaid food item, i.e., mustard oil, its 375 grams quantity was purchased by him against payment of Rs.12/- for examination of the sample by Public Analyst, Government of Uttar Pradesh, Lucknow and receipt of its purchase was also obtained. Sample, so obtained, was divided into three parts and put into three clean, empty and dry phials. Every phial was labelled with code and sample number FTP/16/96/HWA-1. Every part was sealed. Slips with code name and signatures of the Local (Health) Authority were affixed on every part by wrapping the sample in paper and signatures of the seller were obtained on the joins. A notice on Form-6 was given to seller. All the proceedings were carried out in presence of the seller and witnesses. Every part was sealed. Slips with code name and signatures of the Local (Health) Authority were affixed on every part by wrapping the sample in paper and signatures of the seller were obtained on the joins. A notice on Form-6 was given to seller. All the proceedings were carried out in presence of the seller and witnesses. By putting one part of the aforesaid code number and sample number FTP/16/96/HWA-1 in a packet, one copy of the Form-7 in a sealed packet was put therein and the same was sealed and sent for examination to the Public Analyst, Government of Uttar Pradesh, Lucknow. A copy of Form-7 which also contained the imprint of the seal used in making the specimen seal was sent separately through registered post to the Public Analyst, Government of Uttar Pradesh, Lucknow. The remaining two parts of sample, along with two copies of the Memo Form-7, were submitted in a sealed packet to the Office of the Local (Health) Authority. 4. The Public Analyst, Uttar Pradesh, Lucknow, after examining the aforesaid sample number FTP/16/96/HWA-1, sent his report number 2573 dated 20.04.1996, opining the presence of Argemone Oil in the sample conclusive. In this way, sample in question, as per the examination report, was found to be lower than the standard prescribed in Appendix-B of Rule 5 of Rules, 1955 which amounts to violation of Rule 5. After receipt of the report of Public Analyst, matter was sent to Chief Medical Officer and an approval under Section 20 (1) of the Act, 1954 was obtained for taking action against the seller for violation of Section 7/16 of Act, 1954 and Rule 5 of Rules, 1955. Thereafter the complaint was filed. 5. In the documentary evidences, in support of complaint prosecution adduced Ex. Ka-1, notice on Form-6 given to the seller, Ex. Ka-2, purchase receipt, Ex. Ka-3, copy of Form-7, and, receipt for sending the specimen seal, Ex. Ka-4, receipt of parcel in which the sample was sent to the Public Analyst, Ex. Ka-5, registry receipt no. 1136 dated 20.03.1996, Ex. Ka-6, report of the Public Analyst, Ex. Ka-8, copy of the letter sent to Chief Medical Officer for obtaining approval, Ex. Ka-9, approval given by Chief Medical Officer for institution of the case, Ex. Ka-10, complaint and Ex. Ka-12, the notice under Section 13 (2) sent to the accused, Ex. Ka-11, registry receipt number 4267 dated 10.12.1996. Ka-6, report of the Public Analyst, Ex. Ka-8, copy of the letter sent to Chief Medical Officer for obtaining approval, Ex. Ka-9, approval given by Chief Medical Officer for institution of the case, Ex. Ka-10, complaint and Ex. Ka-12, the notice under Section 13 (2) sent to the accused, Ex. Ka-11, registry receipt number 4267 dated 10.12.1996. 6. Charge was framed against revisionist under Section 7/16 of Act, 1954 to which the accused pleaded not guilty and claimed trial. The statement of the accused was recorded in which he stated that no sample was collected by the Food Inspector from him by paying the amount. Neither he was given any notice on Form-6 nor did he put his signature on the notice; rather, the Food Inspector had obtained his signatures on plain papers. Nothing was written on any paper. He was not given any money against purchase of the sample. His signatures were obtained on printed and plain papers. No paper work was done. No sample was sealed. He did not receive any notice under Section 13 (2) from Office of Chief Medical Officer. He did not receive report of the Public Analyst, hence, he does not know anything in this connection. The case was instituted out of misunderstanding. He does not sell mustard oil. The mustard oil in question was produce of the mustard grown in his field and the same was for personal use by the complainant and his family. It was not for sale. 7. On behalf of prosecution, PW-1, Shri A.P. Shukla, and, PW-2, Shri Mohammad Ismail were examined, and Ex. Ka-1 to Ex. Ka-11 were produced as documentary evidences. 8. The statement of accused-revisionist was recorded under Section 313 Cr.P.C in which he stated that Food Inspector had collected sample from him but the remaining proceedings were wrong. He also stated that he had extracted oil from the mustard grown in his field. The said oil was not for sale; rather, the same was for personal use. It was kept outside the shop; hence, Food Inspector collected the sample though all these facts were detailed to him. 9. The accused-revisionist was given opportunity of defence. In his defence, he examined DW-1, Shri Shiv Charan, son of Jagan Nath. The said oil was not for sale; rather, the same was for personal use. It was kept outside the shop; hence, Food Inspector collected the sample though all these facts were detailed to him. 9. The accused-revisionist was given opportunity of defence. In his defence, he examined DW-1, Shri Shiv Charan, son of Jagan Nath. Trial was concluded by First Additional Chief Judicial Magistrate, Court No. 10, Fatehpur vide judgment and order dated 30.05.2005 holding the accused-revisionist guilty of offence under Section 2(i-a) (h) read with Section 7(i) of Act, 1954 and 16 (1-A) read with Rule 5 of Rules, 1955 and punishing him with rigorous imprisonment of six months and fine of Rs. 1000/-. The appeal filed by revisionist thereagainst also failed, hence this revision. 10. Learned counsel for appellant contended that mustered oil, sample whereof was taken, not meant for sale but it was for personal use hence application of Act, 1954 in the case in hand is patently erroneous. However, I find from record that DW-1, Shiv Charan, himself admitted that accused is running a mustered oil shop whereat he is selling mustered oil. Both the Courts below have recorded a finding that while it was displayed for sale, Food Inspector had taken sample after purchasing 375 grams of mustered oil from accused-revisionist after having a receipt issued by accused-revisionist. These evidence and the concurrent findings are not shown erroneous, hence, no interference, in my view, is called for in this revision. 11. It is then contended that oil in question was found to have adulteration of Argemone oil which is not injurious to health and, therefore, revisionist ought not to have been held guilty of adulteration in food items. The accused has been found guilty of adulteration under Section 7(i) read with Section 2(i-a)(h). Section 2(i-a) defines the term “adulteration” and Clause (h) includes an article which contain any poisonous or other ingredient which render it injurious to health. Rule 5 of Rules, 1955 provides that standards of quality of various articles of food specified in Appendix-B, C and D shall be such as defined in those Appendixes. Appendix-B Clause A.17.06 provides standard for mustered oil and with regard to test of argemone oil, it says it to be ‘negative’. 12. Rule 5 of Rules, 1955 provides that standards of quality of various articles of food specified in Appendix-B, C and D shall be such as defined in those Appendixes. Appendix-B Clause A.17.06 provides standard for mustered oil and with regard to test of argemone oil, it says it to be ‘negative’. 12. Thus, from various provisions referred to above, we find that the Legislature has prescribed standards for mustered oil and its adulteration render the food article poisonous. The argument that argemone oil is not poisonous or injurious to health is only a conjecture and not supported by any material whatsoever. 13. In Sitaram Son of Laxminarayan Agarwal and another Vs. State of Maharashtra and another AIR 1979 SC 1569 referring to report of Analyst that ‘Til’ contain argemone oil, Court observed that argemone oil is doubtless a poisonous substance. In view thereof, the argument that the revisionist is not guilty of any adulteration cannot be accepted. 14. It is then argued that it is an old matter almost 20 years back when sample was taken and, therefore, Court must take a lenient view in the matter of punishment. This aspect has two angles. Firstly this Court is considering a case of adulteration. Adulteration in food article has a direct adverse consequence to health of public. Many a times, such adulteration with food causes serious loss to consumer which is unrecoverable and create permanent disability or loss etc. Mustered oil is used by all common man for preparation of food and whether such food would be consumed by a healthy person or a patient is not known but if an adulterated food is consumed, it is bound to have its consequences. 15. The adulterated item is bound to cause such loss as it could be and the consumer would suffer without having any knowledge therefor. The people who are indulged in adulteration are more serious enemy of humanity than those who commit crime by killing a person in a straight manner. Here the hidden crime cause injury to a person who has no idea as to how he has suffered. He believed that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a bad way. Consumer suffers in ignorance but with an obvious confidence that whatever he is intaking is alright. Here the hidden crime cause injury to a person who has no idea as to how he has suffered. He believed that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a bad way. Consumer suffers in ignorance but with an obvious confidence that whatever he is intaking is alright. The adulterators, therefore, do commit a much henious and serious crime to the Society as a whole and deserve no sympathy. 16. In fact, in our Country, we deal with adulteration with lot of sympathy which is encouraging continuous indulgence in such activities and the reason is that adulteration is not being treated with such seriousness as it ought to be. This treatment to adulteration is anti-human and anti-society. The act of adulteration need be viewed with absolute strictness and stringent measures must be taken to prevent it, else Society in general would continue to suffer in the hands of adulterators, who are minting money playing with health of public at large without taking care whether suffering consumer would be an innocent child, a pregnant lady, a patient in Hospital fighting for his life or any such other needy person. 17. When a person is found guilty of adulteration of food, in my view, it deserves a severe punishment while Court below in the case in hand has taken a considerate and lenient view by awarding minimum permissible punishment, i.e., six months rigorous imprisonment and fine of Rs. 1000/-. Any further indulgence would be nothing but a grave violation of statutory provisions and principles of justice. Attempt to grant any indulgence in such a matter, when the Court below has already taken a lenient view in awarding punishment, would be nothing but making mockery of justice. Society had a confidence in the system of justice and is waiting that persons found guilty of committing henious crimes are punished appropriately and suitably, even if punishment is executed with lot of delay since Society has no control over delay occurring in Court but it has a faith in the system of justice and, therefore, not deterred from delay but is satisfied even when justice comes highly belated, provided it is not diluted and lean in favour of accused so as to treat him like a victim ignoring the loss suffered by actual victim. 18. In Ishar Das Vs. 18. In Ishar Das Vs. State of Punjab AIR 1972 SC 1295 Court observed that adulteration of food is a menace to public health and Statute has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. Where Legislature has sought it fit to prescribed minimum sentence of imprisonment, Court should not take recourse to mitigate such legislative intent. 19. Even otherwise, punishment imposed by Court below after finding charge proved beyond doubt is not to be interfered lightly unless the Court finds adequate and appropriate reason therefor. 20. In the matter of awarding punishment multiple factors have to be considered by this Court. The law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of the offence. Sentencing process should be sterned so as to give a message to the offender as well as the person like him roaming free in the society not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner irrespective of time lag. 21. Further sentencing process should be sterned but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above. 22. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254 , the Court confirmed that: "any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system". (Emphasis added) 23. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532 , the Court held that: "It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence." 24. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734 , the Court said that: "The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." 25. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444 , the court said that: "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence" 26. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516 , the Court observed that: "We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516 , the Court observed that: "We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment". (Emphasis added) 27. The revisionist has not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what it is trying to take advantage is that the act of the Court should come to his rescue inasmuch as it is this Court which has taken two and half decades and more in taking up this revision and this should come to rescue of the revisionist for making reduction in punishment drastically though otherwise what has been done by the court below cannot be said per-se illegal, unjust or improper. It is well settled that the act of the court prejudice none. The failure of this court in taking up these matters within the reasonable time should not become a hand to the offender like present one to claim reduction in the punishment as a matter of right ignoring the fact that the society requires that an offender should be punished adequately and over the above the victim, who has suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert and accused as a victim ignoring all the rights of the actual victim, who has suffered, his family and the society in shown. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner, I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court. 28. The judicial review in exercise of revisional jurisdiction is not like an appeal. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner, I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court. 28. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained. 29. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or mis-appreciated the evidence on record. 30. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise. 31. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707 ; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272 ; Satyendra Nath Dutta and another Vs. 31. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707 ; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272 ; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580 ; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002 (5) SCC 659 ; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.). 32. In Duli Chand Vs. Delhi Administration, 1975 (4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct. 33. In Pathumma and another Vs. Muhammad, 1986 (2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact. 34. In Munna Devi Vs. State of Rajasthan and another, 2001 (9) SCC 631 the Court said: "The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." 35. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004 (7) SCC 665 , in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said: "4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice." 36. In view of above exposition of law and considering the facts and circumstances of this case, this Court finds no merit in any of the submissions advanced on behalf of revisionist. 37. The revision is, accordingly, dismissed. 38. Interim order, if any, stands vacated. 39. The accused, Ram Chandra, is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause him to be arrested and lodged in jail to serve out the sentence passed against him. The compliance shall be prepared forthwith. 40. Certify this judgment to the lower court immediately.