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2017 DIGILAW 1107 (ALL)

Raj Kumar v. State of U. P.

2017-04-26

VINOD KUMAR MISRA

body2017
JUDGMENT Vinod Kumar Misra, J. 1. Revisionist, Raj Kumar has filed this revision against the judgment and order dated 20.11.1999 passed by Sessions Judge, Fatehpur in criminal appeal No. 21 of 1999 (Raj Kumar v. State of U.P.) under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’) whereby he has confirmed the conviction and sentence to the revisionist to undergo R.I. for six months and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo two months imprisonment, which has been passed by Ist Additional Chief Judicial Magistrate/Special Judicial Magistrate, Fatehpur in criminal case No. 235 of 1996 (State v. Raj Kumar) under Section 7/16 of the Act, Police Station-Kotwali, District Fatehpur. 2. Heard learned counsel for the revisionist and learned A.G.A. 3. Facts of the case in brief are that Food Inspector, Sri A.P. Shukla on 30.10.1995 at about 10: 15 a.m. after introducing himself to accused, Raj Kumar Tiwari, who was found in possession of 20 liters of milk in two containers for the purpose of sale, purchased 750 milliliters of milk and paid the price thereof Rs. 4.50 and obtained receipt. Milk so purchased was divided in three equal part and Food Inspector kept them in three clean and dried bottles and mixed 20-20 crops of 40% formalin and sealed the said bottles. After completing necessary formalities one bottle so sealed was sent to the Public Analyst at Varanasi and two sealed bottles were kept in the office of Local Health Authority. The sample of the milk sent to the Public Analyst was found adulterated and case was filed in the court against the accused, revisionist, Raj Kumar Tiwari. The accused was charged and charge was read over and explained to the accused, Raj Kumar Tiwari, who pleaded non guilty and claimed to be tried. 4. The prosecution in support of its case has examined P.W. 1 A.P. Shukla, Food Inspector, P.W. 2, Mohd. Ismail, Food Clerk and in documentary evidence filed papers Exts, Ka-1 to Ka-10. 5. Learned Magistrate after hearing both the sides and after analyzing the evidence found the charge proved against the accused and sentenced him for six months rigorous imprisonment and Rs. 1000/- fine and in default of payment of fine two months imprisonment. The accused preferred appeal against the conviction before Sessions Judge, Fatehpur. 6. 5. Learned Magistrate after hearing both the sides and after analyzing the evidence found the charge proved against the accused and sentenced him for six months rigorous imprisonment and Rs. 1000/- fine and in default of payment of fine two months imprisonment. The accused preferred appeal against the conviction before Sessions Judge, Fatehpur. 6. Learned appellate court vide its judgment date 20.11.1997 dismissed the appeal and affirmed the conviction of the appellant. Against the judgment of the appellate court present appeal has been preferred. Learned counsel for the revisionist submitted that in the present case compliance of Section 13(2) of the Act has not been made by the Food Inspector. This argument was also raised before the appellate court. Learned appellate court has met this argument and mentioned in its judgment that records shows that the complaint was instituted in the court on 15.2.1999. On the contrary the arguments which have been raised are baseless. This argument is not correct. This aspect was argued before the learned Magistrate and he discussed quite nicely. In the instant case, it is clear that the complaint was filed in the court on 15.2.1999 whereupon the court called for the report from the office and then after the report was submitted by the clerk and then ultimately the complaint was instituted on 15.2.1999 and then after certain official procedures were adopted by the Magistrate prior to the ordering of registration of complaint. So there is no denying that in law 15.2.1999 is the date of institution and intimation for exercising of option under Section 13(2) of the Act was sent through registered post on 18.2.1999 enclosing Ext. Ka-10. A carbon copy enclosing the report of Public Analyst dated 27.11.1995. Ext. Ka-10 shows that it is dated 15.2.1996 in which there is mention that against the appellant criminal proceedings in the court of Ist Additional Chief Judicial Magistrate, Fatehpur has been instituted on 15.2.1999. Had it been a case that the intimation, as argued by the learned counsel for the appellant was sent on 8.2.1996 then there was no justification of annexing Ext. Ka.-10 and then there would have been no justification for sending it on 18.2.1996. P.W. 1 in his deposition in the court has clearly referred to all these documents and stated that this intimation was sent to the appellant on 18.2.1999 and 18.2.1999 is the date after 15.2.1999. Ka.-10 and then there would have been no justification for sending it on 18.2.1996. P.W. 1 in his deposition in the court has clearly referred to all these documents and stated that this intimation was sent to the appellant on 18.2.1999 and 18.2.1999 is the date after 15.2.1999. So compliance of Section 13(2) of the Act has specifically been made by the Food Inspector, P.W. 1 and as well as proved by his deposition in the Court. In this regard there is no force in the argument of the learned counsel for the revisionist. 7. Learned counsel for the revisionist further submitted that Food Inspector has not complied with the provision of Section 10(7) of the Act, as no attempt has been made to obtain independent witness at the time of taking the sample. 8. This argument of the learned counsel for the revisionist does not hold water, as it has been specifically been mentioned in the judgment of the learned appellate court that P.W. 1, Food Inspector made all attempts to procure the attendance of the independent public witness for witnessing the proceedings but not only they all refused to do so but also refused to disclose their name and address. Consequently, Food Inspector procure the signature of J.P. Tripathi as a witness on the documents. So, Food Inspector has tried his best for obtaining independent local witness for witnessing the sample taking procedure but the all the persons declined. So in these circumstances, compliance of Section 10(7) of the Act was made by the Food Inspector. Learned counsel also submitted that Food Inspector did not comply with the Section 11(1)(a) of the Act. This argument was also raised before the learned appellate court. Learned appellate court has discussed it in its judgment and found that sufficient compliance of Section 11(1)(a) of the Act was made by the Food Inspector, as Food Inspector, P.W. 1 has deposed that he initially served a notice Ext. Ka-1 and then thereafter he gave the receipt of purchase of sample Ext. Ka-2 and the he prepared Ext. Ka-3. So learned appellate court on the basis of evidence of P.W. 1, Food Inspector found that compliance of Section 11(1)(a) has been made by the Food Inspector. 9. Ka-1 and then thereafter he gave the receipt of purchase of sample Ext. Ka-2 and the he prepared Ext. Ka-3. So learned appellate court on the basis of evidence of P.W. 1, Food Inspector found that compliance of Section 11(1)(a) has been made by the Food Inspector. 9. In my opinion, there is no illegality in the approach of the learned appellate court in coming to the above conclusion that compliance of Section 11(1)(a) of the Act has been made by the Food Inspector, as he has observed all the necessary formalities for taking the sample. 10. Learned counsel for the revisionist submitted that the revisionist is aged person and it shall not be proper to send him jail after 18 years and after dismissal of appeal. Learned counsel for the revisionist has also submitted the case law of Mohd. Husain v. State of U.P. [2009 (I) JIC 49 (All)]. The facts of the above case law is distinguishable, as in the cited case before High Court, record of the courts below was not available and was weeded out. This factor was being taken into consideration by the court in the above ruling while in the present case such circumstance is not there, as record of the courts below were available. Moreover, it is economic offence and in my opinion no leniency on this score is required. Furthermore, so far as the question of commutation of sentence is concerned, it is jurisdiction of the State Government and convict can apply for the same independently without any intervention of this Court. 11. Consequently, the revision is devoid of merit and is liable to be dismissed. 12. Revision is, accordingly, dismissed. Judgment of the learned appellate court is confirmed. 13. Revisionist is directed to surrender before learned C.J.M., Fatehpur within one month from today. Learned C.J.M. will send the revisionist to District Jail for undergoing the sentence of six months. The revisionist will also pay Rs. 1000/- as fine in the trial court. In default of payment, the revisionist will undergo two months simple imprisonment and sureties stands discharged after the surrender of the revisionist before C.J.M., Fatehpur within one month. 14. Let a Copy of this judgment be transmitted to the C.J.M., Fatehpur for compliance and compliance report be submitted by the learned C.J.M., Fatehpur within two months.