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2017 DIGILAW 1108 (ALL)

R. K. Gupta v. State of U. P.

2017-04-26

VINOD KUMAR MISRA

body2017
JUDGMENT Vinod Kumar Misra, J. 1. Revisionist, Ram Krishna Gupta has filed this revision against the judgment and order dated 30.11.1984 passed in Criminal Appeal No. 54/1984 dismissing the appeal and confirming the judgment and order dated 21.3.1984 passed by Special Judicial Magistrate (Economic Offence), Gorakhpur in Case No. 598/82 (State v. Ram Krishna Gupta) under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’). 2. Heard learned counsel for the revisionist and learned A.G.A. 3. Brief facts of the case are that on 31.12.1980 at about 10: 00 a.m. Sri A.N. Tripathi, Food Inspector inspected the shop of the revisionist, Ram Krishna Gupta in Siktaur, P.S. Khorabar, District-Gorakhpur. At the shop food-grains, edible oils and spices including coriander (Dhania) were displayed for sale and revisionist, Ram Krishna Gupta was also present. Food Inspector purchased 450gms of Dhania and paid Rs. 3.60/- to the revisionist, Ram Krishna Gupta in presence of Rikhai. Food Inspector also prepared a receipt but revisionist refused to sign it. Food Inspector, thereafter, gave a notice in form No. 6 to the revisionist informing that the sample had been purchased for analysis. Sample was divided in three equal parts and filled in three bottles, which were properly sealed and code slip was pasted on it. Memo was also prepared at the spot. Revisionist refused to sign the notice in form No. 6, the sealed sample and the memo. One phial of the sample along with copy of memorandum in form No. 7 was sent by the Food Inspector through registered post to the Public Analyst. The remaining two phials were deposited in the office of the Local Health Authority. Another copy of memo in form No. 7 along with sample of the seal was separately sent to the Public Analyst. It appears that the aforesaid sample sent to the Public Analyst, Lucknow was damaged in the transit therefore, through letter dated 13.12.1981 he asked for the other phial from the Local Health Authority, which was sent on 6.5.1981. According to the report of the Public Analyst dated 11.6.1981 the sample was found to be adulterated, as the insects damaged portion was 10.5%, which was more than maximum prescribed limit of 5% and there were also dead and alive insects in it. After considering the documents the Local Health Authority gave sanction for the prosecution of the revisionist. According to the report of the Public Analyst dated 11.6.1981 the sample was found to be adulterated, as the insects damaged portion was 10.5%, which was more than maximum prescribed limit of 5% and there were also dead and alive insects in it. After considering the documents the Local Health Authority gave sanction for the prosecution of the revisionist. Thereafter the complaint was filed in the court. 4. The revisionist was charged under Section 7(i)(iii)(V)/16(1)(i)(ii) of the Act. Revisionist pleaded not guilty to the charges. He denied that food-grains and ‘Masala’ were sold at his shop. He further alleged that only ‘bidi’, Tobacco and Hosiery was sold at his shop. He further alleged that no sample was purchased from his shop. The alleged Rikhai was pocket witness of the Food Inspector and he had been implicated due to misunderstanding. Prosecution examined A.N. Tripathi as P.W. 1, Rikhai as P.W. 2 and Vijai Bahadur Yadav as P.W. 3. Learned Special Judicial Magistrate, Economic Offence after hearing both the sides and on the perusal of the evidence found the charge proved against the accused and convicted him for the offence under Section 7/16 of the Act and sentenced for six months rigorous imprisonment and Rs. 1000/- as fine and in default of payment he was sentenced for one month rigorous imprisonment. 5. Accused/convict preferred appeal against the judgment of learned Magistrate before Sessions Judge, Gorakhpur. Appeal was transferred to the Court of Special Judge, Economic Offence, Gorakhpur. Learned Special Judge vide judgment dated 30.11.1984 dismissed the appeal and affirmed the findings of the learned Magistrate. Against the appellate judgment present revision has been filed by the revisionist. 6. Learned counsel for the revisionist submitted that learned appellate court wrongly held that sample of the revisionist was adulterated, as Public Analyst found insects damaged part to be 10.5.% by weight and according to Para A.05.08 in coriander whole the amount of inspect damaged matter should not exceed 5% by weight. 7. Learned counsel for the revisionist submitted that Public Analyst has not mentioned in its report that sample was injurious to health. 7. Learned counsel for the revisionist submitted that Public Analyst has not mentioned in its report that sample was injurious to health. Learned counsel for the revisionist submitted that sub-clause (m) of Section 2(1-a) of the Act and its proviso provided that primary food which is non-injurious to health but is of substandard due to natural causes and beyond the control of human agency shall not been deemed adulterated within the definition of adulteration, as provided in Section 2(1-a) of the Act. Learned appellate court has discussed this argument, as it was also raised before appellate court. Learned appellate court after discussing the pros and cons of the matter and relying upon judgment of Hon’ble Court in the case of Municipal Corporation of Delhi v. Khacheru Mal, A.I.R. 1976-SC-394, in which it was held that any case of articles for which the rules laid down any minimum standard of purity with reference to any of the vices specified in the sub-clause; mere proof of fact that impurity was in excess of that countenanced by the prescribed standard would be conclusive to show that the articles was unfit for human consumption. In the present case report of Public Analyst has found that in the sample insects damaged part was 10.5% by weight and according to Para A.05.08 in coriander whole the amount of insect damaged matter should not exceed 5% by weight. Thus, the standard of purity had fallen below the prescribed standard and the impurity was in excess of that prescribed by law. 8. In view of the principle laid down in the aforesaid rulings, the article was unfit for human consumption. That being so it shall be considered to be injurious to health. In this way, the sample would be deemed to be adulterated within the meaning of sub-causes (f) and (l) of Section 2(1-a) of the Act. In this regard the arguments of the learned counsel for the revisionist is mis-placed one, as present case squarely falls within the principle of the case of Municipal Corporation of Delhi v. Khacheru Mal, A.I.R. 1976-SC-394. 9. Learned counsel for the revisionist submitted that Food Inspector did not comply with the Section 10(7) of the Act, as no independent witness was called upon to witness the proceedings of taking the sample. 9. Learned counsel for the revisionist submitted that Food Inspector did not comply with the Section 10(7) of the Act, as no independent witness was called upon to witness the proceedings of taking the sample. This argument was also raised before the learned appellate court and same was rejected by the learned appellate court, as the evidence of Food Inspector, P.W. 1 and Rikhai, P.W. 2 proved that Food Inspector tried his best to call upon an independent witness to witness the sample taking proceedings but none came forward. In these circumstances the arguments of the learned counsel for the revisionist that Food Inspector did not comply with the provisions of the Section 10(7) of the Act is not substantiated. 10. It has also been submitted by learned counsel for the revisionist that P.W. 2, Rikhai was pocket witness of the Food Inspector, as he had appeared in three or four other cases of such nature at the instance of the Food Inspector. If P.W. 2 had appeared in other cases of like nature, even only on this score it cannot be said that P.W. 2 was not present while sample was taken by the Food Inspector by the revisionist. Furthermore, even on the sole testimony of the Food Inspector conviction can be made provided that evidence of Food Inspector is creditworthy and reliable and so the appearance of the P.W. 2 as an independent witness along with P.W. 1 in other cases of like nature will not treated as a disqualification of P.W. 2 for witnessing the sample taking proceedings. 11. All necessary formalities for sending the sample to the Public Analyst and for sending the copy of the report of Public Analyst to the accused have been complied with in the present case. There is no illegality or impropriety in the process of taking sample and its analysis and further launching of complaint against the revisionist. Learned appellate court after properly analyzing the evidence all the arguments made before it has confirmed the order of conviction of the learned Magistrate on cogent reasons. No illegality or impropriety has been proved by the revisionist in the finding of the learned appellate court. 12. Consequently, the revision is devoid of merit and is liable to be dismissed. 13. Revision is, accordingly, dismissed. 14. Revisionist is directed to surrender before learned C.J.M., Gorakhpur within one month from today. No illegality or impropriety has been proved by the revisionist in the finding of the learned appellate court. 12. Consequently, the revision is devoid of merit and is liable to be dismissed. 13. Revision is, accordingly, dismissed. 14. Revisionist is directed to surrender before learned C.J.M., Gorakhpur within one month from today. Learned C.J.M. will send the revisionist to District Jail for undergoing the sentence of six months rigorous imprisonment. The revisionist will also pay Rs. 1000/- as fine in the trial court. In default of payment, the revisionist will undergo one month rigorous imprisonment and sureties stands discharged after the surrender of the revisionist before C.J.M., Gorakhpur within one month. 15. Let a Copy of this judgment be transmitted to the C.J.M., Gorakhpur for compliance and compliance report be submitted by the learned C.J.M., Gorakhpur within two months.