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2019 DIGILAW 592 (UTT)

Ashraf v. Rustam

2019-11-27

R.C.KHULBE

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JUDGMENT : R.C. Khulbe, J. This criminal appeal has been preferred by the appellants under Section 374 Cr.P.C. against the judgment and order dated 11.01.2010 passed by learned Additional Sessions Jude/Fourth Fast Track Court, Haridwar in Sessions Trial No.212-A of 2000 (Case Crime No.52 of 1999, P.S. Kotwali Manglore [Haridwar]), State Vs. Asraf & Others, whereby both the appellants were convicted under Section 272 IPC and sentenced to undergo five years and six months' rigorous imprisonment with fine of Rs.25,000/- each (Rupees Twenty Five Thousand Only); in case of failure in depositing the fine, the accused was directed to undergo three-three months' additional simple imprisonment. 2. Brief facts of the case are that on 14.03.1999, a telephonic information was received that at Village Budpur Jatt in the house of Nasim accused-Nasim, Rustam and Ashraf were making synthetic milk. On this information, S.O. Omprakash Sisodia along with A.S.I. Dal Chand, Constable Sauraj Singh, Constable Ashok Kumar along with Driver Vijender Singh proceeded from the police station for Village Budpur Jatt in Government Jeep UP-10B-4240. On the way, they tried to procure the public witnesses but due to enmity, nobody became ready to witness the incident. 3. After conducting their personal search, the police team reached at Village Budpur Jatt at the house of Nasim and saw that three persons were present in the kitchen. Out of those three, one was mixing something in the milk and was asking another person to put urea and asking the third person to put glucose in the milk. After hearing this conversation, the police personnel became sure that all the three persons were preparing the synthetic milk. The aforesaid persons were nabbed at about 01:30 p.m. who disclosed their names as Nasim, Ashraf and Rustam. From the possession of Nasim, one cane, full of milk, was recovered; a tin mug full of sticky substance was recovered from Ashraf while a white sack filled with light green substance was recovered from Rustam. All the persons told that they were making synthetic milk. 4. On the basis of the said recovery, FIR was lodged on 14.03.1999 at 05.15 p.m. in P.S. Manglaur, District Haridwar. After completion of the investigation, the charge sheet was submitted against the accused under Sections 272, 353, 506 IPC. Accordingly, charges were framed, which they denied and claimed trial. 5. 4. On the basis of the said recovery, FIR was lodged on 14.03.1999 at 05.15 p.m. in P.S. Manglaur, District Haridwar. After completion of the investigation, the charge sheet was submitted against the accused under Sections 272, 353, 506 IPC. Accordingly, charges were framed, which they denied and claimed trial. 5. In order to prove its case the prosecution examined as many as five witnesses, namely, PW1 S.I. O.P. Sisodia, PW2 Constable Dalchand, PW3 Mohd. Nasim, PW4 Constable Brahmraj and PW5 Constable Sauraj. 6. Thereafter, the statements of witnesses u/s 313 Cr.P.C. were recorded. 7. The Trial Court, vide the judgment and order, under appeal, has convicted and sentenced the appellants, as afore-stated. Hence, this appeal has been filed by them assailing the judgment and order of their conviction and sentence. 8. Pw1 S.I. O.P. Sisodia and PW5 Constable Sauraj stated in their statements that on 14.03.1999, they along with other police personnel went to the house of accused-Nasim and saw that the accused Nasim, Rustam and Ashraf were preparing synthetic Milk at the house of accused-Nasim. One person was mixing something in the milk by taking it out from the drum and was asking one person to put urea in the milk and asked another person to put glucose. 9. After hearing this, they became sure that all three were making synthetic milk and after opening the door all the three persons nabbed by them at about 01:30 p.m. and they disclosed their names as Nasim, Rustam and Ashraf. From the possession of Nasim, one cane full of milk was recovered while from the possession of Rustam, one plastic bag of urea was recovered while from the possession of Ashraf, one polythene bag of glucose was recovered. All the accused told them that they were making synthetic milk by mixing urea and glucose. Accordingly, recovery memo Ex.Ka-1 was prepared at the spot. 10. It is argued by learned Counsel for the appellants that as per the prosecution evidence, on 14.3.1999, the police party, on receiving information about preparation of synthetic milk, reached at Village Budpur Jatt. When they reached the house of accused Nasim, all the accused were found present preparing adulterated milk by mixing Urea, Glucose and Fat. The police personnel took samples of the recovered material at the spot and sent the same for its examination to the State Food Laboratory. When they reached the house of accused Nasim, all the accused were found present preparing adulterated milk by mixing Urea, Glucose and Fat. The police personnel took samples of the recovered material at the spot and sent the same for its examination to the State Food Laboratory. Although, as per the report submitted by the Laboratory, Urea, Glucose and Desi Ghee was found but the police people did not take the sample of synthetic milk as per rule. As per the recovery memo, Urea, Glucose and Desi Ghee was found at the spot, but in fact, no adulterated milk was found prepared. The main accused was Nasim who confessed his crime and was accordingly convicted and it is reported that he has been released after serving out the sentence. 11. The Trial Court convicted and sentenced the accused simply on the ground that the material recovered from the spot was sent to the FSL, Agra. The report of the Laboratory is on record as paper no.50Kha/1, in which Urea, Glucose and Desi Ghee was found in the samples sent for examination. The witnesses produced by the prosecution have deposed that the accused were using these materials for preparing the synthetic milk. On the basis of said report of FSL as well as the oral testimony, the accused have been convicted under the above offences. 12. From a perusal of the evidence, it is clear that at the spot, police party took three samples; one each of Urea, Glucose and Desi Ghee while in the report of FSL, Agra, in three separate samples, Desi Ghee, Glucose and Urea was found. There is no evidence on record which shows that the present accused prepared synthetic milk by mixing the above Desi Ghee, Glucose and Urea. In fact, no sample of milk was taken or sent to FSL, Agra for testing nor any report was given by the FSL regarding the synthetic milk. It shows that no adulterated milk was found at the spot. 13. Admittedly, the present accused are small farmers and Desi Ghee, Urea and Glucose is normally found in their place of dwelling. Without producing any milk, it cannot be inferred that the accused were preparing the synthetic milk by mixing the aforesaid items. It shows that no adulterated milk was found at the spot. 13. Admittedly, the present accused are small farmers and Desi Ghee, Urea and Glucose is normally found in their place of dwelling. Without producing any milk, it cannot be inferred that the accused were preparing the synthetic milk by mixing the aforesaid items. Since no synthetic milk was recovered from the possession of present accused, hence they cannot be punished under the sections in which they have been convicted and sentenced by the Trial Court. The Court below, simply on the basis of FSL report, convicted and sentenced the accused while there is no clinching evidence available on record against them. 14. I have re-assessed the entire evidence produced by the prosecution before the Trial Court and have come to the conclusion that the prosecution has miserably failed to produce the clinching evidence against the present accused. 15. Thus, the present appeal is allowed. Judgment and order, under challenge, is quashed and set aside. The appellants are acquitted from the charges levelled against them. They are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged of their liabilities. 16. If any amount of fine is deposited by the appellants, the same shall be returned to the appellants as per rule. 17. LCR with a copy of this judgment be sent to the Trial Court concerned for information.