Dismissed

Ramji v. State of U.P.

Allahabad HC23 Oct 2018CRLR/1669/1990

Case brief

AI extract

What is this about?

High Court refuses to interfere with conviction and six-month sentence for milk adulteration under Food Adulteration Act. Court rejects delay as ground for leniency and holds that food adulteration is a heinous offence requiring strict law enforcement.

What did the court decide?

Revision dismissed; bail cancelled and accused directed to be arrested to serve sentence.

Ramji Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2018)

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Reserved on 19.9.2018 Delivered on 23.10.2018

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 1669 of 1990

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Revisionist :- Ramji Opposite Party :- State Of U.P. Counsel for Revisionist :- S.K. Chaubey, Madan Singh Counsel for Opposite Party :- A.G.A.

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Hon'ble Aniruddha Singh,J.

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Heard Sri Madan Singh, learned counsel for the revisionsit and learned AGA for the State.

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This revision has been preferred by Ramji challenging judgment and order dated 7.9.1990 passed by 10^th Additional Sessions Judge,Varanasi in Appeal No. 142 of 1988 under section 7/16 of Food Adulteration Act (hereinafter referred to as 'Act') whereby appeal was dismissed and order of Trial Court dated 31.10.1988 passed by CJM, Varanasi convicting revisionsit under section 7(i)(iii) read with section 16(i)(A) of the Act and sentenced to six months' rigorous imprisonment and fine of Rs.1000/- and in default, to undergo two months' R.I, has been affirmed.

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In short, prosecution case is that on 9.12.1982 at 9 A.M. at place Koodkala, Food Inspector Asharfi Lal Tiwari issued notice of Form 6 to Ramji and purchased 660 ml. milk of buffalo from him by paying Rs.1.65. He divided it equally and kept in three small bottles. Then mixed 18-18 drops Farmleen and sealed them by pasting code slip of CMO. After affixing thumb impression of accused, sent one bottle to the Public Analyst, U.P., Lucknow. In the Public Analyst's report No. 25503 dated 21.1.1983, the sample was found lacking 13% fat and 7% non fatty solid. Thus sample was found adulterated. The case was filed after obtaining sanction from the Chief Medical Officer.

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From the side of prosecution P.W.-1 A.K. Tiwari, Food Inspector and P.W.-2 Rajendra Prasad, Clerk(Food) and from the defence side, D.W.-1 Samaru and D.W.-2 Ram Adhar were examined before the Trial Court.

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Accused in his statment stated that he was not selling milk. He

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had purchased the same for use in the function of 'gauna' of his sister. 6. After examining the evidence adduced by both sides, Trial Court convicted Ramji under section 7(i)(iii) read with section 16(i)(A) of the Act and sentenced to six months' rigorous imprisonment and fine of Rs.1000/- and in default, to undergo two months' R.I. The Criminal Appeal filed against judgment dated 31.10.1988, was dismissed. Hence this revision.

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Learned counsel for the revisionist submitted that milk taken by the Food Inspector, was not for sale but it was for personal function in the 'gauna' of sister, hence accused is liable to be acquitted. 8. I find no force in this argument because the defence taken by the accused was not proved. According to section 102 of Evidence Act, burden lies upon the accused/revisionist. On this issue, he produced D.W.-1 Somaru and D.W.-2 Ram Adhar. The statement of D.W.-1 on this issue is not reliable because sample was taken at Mugal Sarai and this witness clearly stated that he was not present at the time of taking sample. Hence evidence of this witness is hearsay evidence and is not reliable. D.W.-2 Ram Adhar was also a chance witness and he clearly stated that sample was not taken before him and he went from the place of occurrence. Hence it is very clear that he is also not eye witness and he has not seen the proceeding of the sampling.

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It is also pertinent to mention here that on the issue of 'Gauna' in the house of revisionist, D.W.-2 Ram Adhar stated that at that time there was the marriage of sister of revisionist and D.W.-1 Somaru stated different version that there was 'gauna' ceremony of 'mausi'. It is material contradiction on this point, hence the evidence of D.W.-1 and D.W.-2 on this account is also not reliable.

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So far as on the point of compliance of Section 13(2) of the Act is concerned, on 10.6.1983 notice with report of Analyst Report was sent to the accused revisionist by registered post.

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It is also pertinent to mention here that Food Inspector clearly stated that revisionist was selling milk and he had purchased 600 ml. buffalo milk from the revisionist by paying Rs.1.65. Hence the transaction between the Food Inspector and revisionist was covered

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in the definition of sale. Thus, all arguments raised on this point have no force.

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Both prosecution witnesses are Government servants and act done by them was in discharge of their government duty. Thus, their testimony cannot be disbelieved in routine manner.

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It is also stated by the Food Inspector on oath that 2-3 persons had purchased milk from revisionist before the Food Inspector. If the version of revisionist is proved that he was carry milk for use in the function of 'gauna' of his sister, then why would he purchase adulterated milk for his own function. The revisionist admitted in his statement under Section 313 Cr.P.C. that the Food Inspector had purchased milk from him for sample but he was carrying milk for 'gauna'.

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The incident is of 9.12.1982. The complaint was filed on 16.7.1983. Analyst Report was received on 21.1.1983 and was sent to revisionist on 10.6.1983 within time and no application was made by the revisionist for examination of milk from Forensic Science Laboratory. Hence, argument on non-compliance of Section 13(2) of Act is baseless. It is also pertinent to mention here that in view of judgment of this Court in Ram Avtar vs. State of U.P.,1985 Allahabad Criminal Cases, 146, provision of section 13(2) of Act is not mandatory but directory. The thumb impression affixed on all papers prepared by the Food Inspector is not denied by the revisionist but he had taken defence that he made thumb impression on blank papers which is not believable and also not natural.

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He admitted that sample was taken by the Food Inspector, hence question of non-compliance of Section 10(7) of Act does not arise. 16. The next submission is that the incident is of the year 1982 and more than 36 years have passed, hence punishment awarded to the accused may be reduced to the period already undergone or only fine and placed reliance upon Khem Chand vs State of Himachal Pradesh, 1993 LawSuit (SC) 715.

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Adulteration in food article has a direct adverse consequence to the health of public. Many a times such adulteration with food causes

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such serious loss to the consumer, which is unrecoverable and create permanent disability or loss etc. We cannot presume that the milk sold by accused-revisionist would have been used by a healthy person and not a patient facing serious disease in the Hospital or otherwise. 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 dangerous and stark enemy of humanity than those who commit crime by killing a person straight. Here the hidden crime causes injury to a person who has no idea as to how he has suffered and that too in a defenceless situation. He would believe that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a different and rather 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 heinous and serious crime to the Society as a whole and deserve no sympathy.

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In fact, in our Country, we deal with adulteration with lot of sympathy which encourages continuous indulgence in such activities. The 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 struggling for life or any such other needy person.

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In the resent case, the prosecution has proved the case beyond doubt. Accused has been found guilty of adulteration in milk. Court below has already taken a lenient view by imposing minimum punishment of only six months' R.I. rigorous imprisonment and fine of Rs. 1000/-. Attempt to grant any indulgence in such a matter, when the Court below has already taken a lenient view in awarding punishment,

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would be nothing but mockery of justice.

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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 has concrete faith in the system of justice. Therefore, it is not deterred by 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 loss suffered by actual victim.

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In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254 , the Court confirmed that:

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"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)

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In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532 , the Court held that:

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"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."

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In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734 , the Court said that:

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"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

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In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444 , the court said that:

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"Just punishment is the collective cry of the society. While the

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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"

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In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516 , the Court observed that:

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"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)

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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 more than three 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

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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.

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Both the Courts below have recorded concurrent finding of fact and the view taken by Courts below is plausible view. Hence this Court is not supposed to interfere with the finding of fact arrived at by the Courts below.

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This Court finds no justification to reduce the sentence because the society had confidence in the justice and 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 has concrete faith in the system of justice. Therefore, it is not deterred by 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 loss suffered by actual victim. Even otherwise, punishment imposed by Courts below after finding charge proved beyond doubt is not to be interfered lightly unless the Court finds adequate and appropriate reason therefor.

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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 findings of fact reached by learned Magistrate and Sessions Judge was correct.

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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.

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In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

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"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."

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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:

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"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. 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."

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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 the revisionist.

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The revision is, accordingly, dismissed.

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Interim order, if any, stands vacated.

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Revisionist Ramji is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause him to be arrested and lodge in jail to serve out the sentence passed against him.

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Office is directed to send the copy of this order to the concerned court within three days. The compliance shall be reported at the earliest. On receipt of compliance report, office shall keep the same on record.

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Order Date :- 23.10.2018 P.P.

Ramji v. State of U.P.

Case brief

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Ramji v. State of U.P.

Case brief

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