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2018 DIGILAW 190 (ALL)

RADHEY SHYAM v. STATE OF U. P.

2018-01-23

SIDDHARTHA VARMA

body2018
JUDGMENT : Hon'ble Siddhartha Varma,J. 1. The instant revision has been filed against the judgement and order dated 29.4.2003 passed in Criminal Appeal No. 154 of 2002 confirming the judgement and order dated 1.11.2002 passed by the Additional Chief Judicial Magistrate in Criminal Case No. 2279 of 1994 convicting the applicant-revisionist under Section 7/16 Prevention of Food Adulteration Act, 1954, (hereinafter referred to as 'the Act') and sentencing him for a period of one year rigorous imprisonment alongwith a fine of Rs. 2,000/- 2. Briefly stated the facts of the case are that upon an inspection being made by the Food Inspector Sri R.K. Mishra alongwith peon Girdhari Ram on 11.7.1991 at around 11:00am, Arhar Dal was randomly purchased from the shop of the applicant-revisionist and upon a doubt being there that it was adulterated a sample of it, as per the rules, was sent to the Public Analyst for investigation wherein it was found that, in fact, the Arhar Dal was adulterated by mixing it with Metalic Yellow which is a prohibited substance and could not be used for eating. 3. Upon having been found that there was adulteration, permission was sought for from the C.M.O. concerned for initiation of prosecution, which having been granted, a complaint was filed before the C.J.M., praying that the accused be summoned and punished. There upon the accused was summoned and charges were framed under Section 7/16 of the Act on 9.11.2000. He denied the charges and claimed trial. Under the relevant provisions of the Cr.P.C. Sri Radha Krishna Mishra, the Food Inspector, was examined as P.W. 1 and one Sri Ashok Srivastava, the Food Clerk, was examined as P.W. 2. No other prosecution witness was examined. They were also cross-examined. The applicant-revisionist's statement under Section 313 Cr.P.C. was recorded. He claimed innocence and stated that no sample was ever taken from him. Upon trial, the Magistrate convicted the applicant-revisionist under Section 7/16 of the Act and sentenced him for a period of one year rigorous imprisonment with a fine of Rs. 2,000/-. 4. In appeal, the judgement and order of the Trial Court was confirmed and appeal was dismissed on 29.4.2003. Hence the instant revision. 5. Upon trial, the Magistrate convicted the applicant-revisionist under Section 7/16 of the Act and sentenced him for a period of one year rigorous imprisonment with a fine of Rs. 2,000/-. 4. In appeal, the judgement and order of the Trial Court was confirmed and appeal was dismissed on 29.4.2003. Hence the instant revision. 5. The counsel for the applicant-revisionist made the following submissions:- I. In fact, no sample was taken from the applicant-revisionist as he had no shop from which he sold the Arhar Dal which was alleged to have been adulterated and, therefore, the mandatory provisions of Section 10(7) of the Act were not followed. II. The peon Ghirdhari Ram who was allegedly accompanying the Food Inspector R.K. Mishra was never produced and examined by the prosecution. III. Rule 17 and 18 of the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as ' the Rules') were also not adhered to. IV. The applicant-revisionist's counsel has also submitted that the compliance of Section 13 of the Act was not there. V. Going by the definition as has been provided under Section 2(h) of the Act, the sample as had been taken was not an "adulterated substance". VI. The applicant-revisionist on the date when the revision was being argued was 72 years of age and had already remained in jail for a period of one month. 6. In reply, learned Government Advocate submitted that when the sample had been collected and was found to be adulterated by the public analyst then it mattered little that the procedure as had been given in the Act was not followed. He submits that when there was no independent witness available then under no circumstance would it be forced upon the Food Inspector to make available an independent witness. Further, he submits that the provisions of Rule 17 and 18 of the Rules were also not mandatory. In the end he stated that the non-production of Girdhari Ram was also not detrimental to the prosecution. 7. Having heard the learned counsel for the parties and having gone through the record, I find that the applicant-revisionist deserves to be acquitted. In the first place, a perusal of the record, reveals that under Rule 12 of the Rules, the revisionist-applicant was sought to be served with a notice as is provided in the Act in form VI. 7. Having heard the learned counsel for the parties and having gone through the record, I find that the applicant-revisionist deserves to be acquitted. In the first place, a perusal of the record, reveals that under Rule 12 of the Rules, the revisionist-applicant was sought to be served with a notice as is provided in the Act in form VI. A look at the original Form VI kept in the record clearly indicates that even though the name of the applicant has been given, the notice does not indicate that it was served while he was sitting on any shop. Further more, the notice indicates that the applicant had refused to sign on the Form VI. Still further, it indicates that the Food Inspector had endorsed that persons in the neighbourhood had refused to give any evidence. There is no indication of the fact that any effort was made by the Food Inspector to get any independent witness. The provisions of Section 10(7) of the Act are mandatory. It was obligatory for the Food Inspector under Section 10(7) of the Act to call for one or more independent witnesses. Only if independent witnesses were not ready to corroborate the version of the Food Inspector would he have been relieved from the compliance of the mandatory provision of Section 10(7) of the Act. In the present case, there is no evidence whatsoever about any attempt being made by the Food Inspector for getting any independent witness and, therefore, it can safely be said that the mandatory provision of Section 10(7) of the Act was not complied with. In the instant case, non-compliance cannot be said to be inconsequential as the presence of independent witnesses might have had a bearing on the defence, specially when the applicant had come with a case that he had no shop from which he sold the Arhar Dal. The receipt which the Food Inspector tried to serve upon the applicant after taking the sample also speaks volumes in as much as the applicant had allegedly not taken the receipt of the sample and it was mentioned in the receipt that persons of the neighbourhood had refused to come as witnesses in the case. It is alleged that the receipt was sent by registered post and a presumption was raised about the receiving of the receipt as it was sent on the correct address. It is alleged that the receipt was sent by registered post and a presumption was raised about the receiving of the receipt as it was sent on the correct address. Here it may be stated that when no address was given of the shop then it does not stand to reason that how the receipt was sent at the correct address. 8. Further under Rule 17 of the Rules, the manner in which samples had to be dispatched has been provided. For convenience Rule 17 and 18 are being reproduced here as under:- 9. Rule 17. Manner of despatching containers of samples.--The containers of the sample shall be despatched in the following manner, namely: (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means; (b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means; (c) The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in Form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means: Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information, namely:-- (a) Grade; (b)Agmark label No. /Batch No; (c) Name of packing station.] Rule 18. Memorandum and impression of seal to be sent separately.--A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day. 10. How the sample was sent for its analysis is not clear from the record. Rule 17 of the 1955 Rules gives a detailed procedure as to how a sample is to be sealed and how it is to be despatched. 10. How the sample was sent for its analysis is not clear from the record. Rule 17 of the 1955 Rules gives a detailed procedure as to how a sample is to be sealed and how it is to be despatched. Neither do the various forms reveal how the sample was despatched nor does the Food Inspector's report show how the sample which was despatched was subsequently received by him. The record also reveals that there was no compliance of Section 13 of the 1954 Act. In 1981 AWC 174 (Sunil Kumar Vs. State) it has been laid down that provisions of Section 10(7) are mandatory. In ILR 1981 (2) Kerala 166 (Jose vs. Food Inspector and Anr.), the Kerala High Court has held that the provisions of Rule 17 are mandatory. In 2003 (4) MPLJ 279 ( Ramesh Khati vs. State of Madhya Pradesh) it has further been held that non-compliance of Rule 17 and 18 of Rules 1955 and of Section 13 of the Act, 1954 renders the whole prosecution faulty. Further, non-production of the peon Girdhari Ram appears to be absolutely fatal for the prosecution. The incident had taken place on 11.7.1991. The charges were framed on 9.11.2000 and the only witness who was there in the year 1991 was peon Girdhari Ram who witnessed the collection of the sample from the shop of the applicant. He was definitely not produced. No reason has also been given for his non-production. This clearly falsifies the case of the prosecution. In the first place there was no independent witness to support the allegation of the Food Inspector and secondly, the peon Girdhari Ram who could have testified the allegation of the Food Inspector was not brought as a witness and examined. 11. Under such circumstances, as the best witness of the prosecution was not produced, the whole case becomes doubtful. No independent witness witnessed the event. The provisions of Section 10(7) and Section 13 which are mandatory were violated and definitely the sample was not sent as per the method provided in Rule 17 and 18 of the Rules of 1955. 12. Under such circumstances, the revision is allowed. The orders dated 29.4.2003 and 1.11.2002 are set aside. The applicant-revisionist is acquitted.