Dismissed

Ramesh Yadav v. State

Allahabad HC14 Sept 2018CRLR/1940/1987

Case brief

AI extract

What is this about?

In this criminal revision concerning food adulteration, the High Court dismissed the petition. The court held that non-compliance with Section 10(7) did not vitiate the trial as the Food Inspector made an earnest attempt to get witnesses. Regarding delay, the court refused leniency given the serious impact of food adulteration and upheld the original conviction and sentence.

What did the court decide?

Revision dismissed; interim order vacated; bail cancelled; arrest and institutionalisation ordered to serve sentence.

Ramesh Yadav Vs State — Cheque Dishonour | Allahabad HC (2018)

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Reserved on 27.8.2018 Delivered on 14.9.2018

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 1940 of 1987

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Revisionist :- Ramesh Yadav Opposite Party :- State Counsel for Revisionist :- Ravindra Rai,D.R. Choudhary Counsel for Opposite Party :- A.G.A.

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Hon'ble Aniruddha Singh,J.

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Heard Sri D.R. Chaudhary, learned counsel for the revisionist and Sri P.K. Srivastava, learned AGA for the State and perused the record.

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The revisionist has preferred this revision under Section 397/401 Cr.P.C. assailing judgment dated 22.12.1987 passed by Sessions Judge, Mirzapur in Criminal Appeal No. 27 of 1987 dismissing the appeal and maintaining conviction under section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Act, 1954")and sentence of six months R.I. and a fine of Rs.1000/- and in default to deposit fine, to undergo additional three months' rigorous imprisonment.

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The prosecution case is that Sri Rajendra Prasad Srivastava, Food Inspector, on 3.11.1981 at 10 A.M. inspected the shop situated at Bus Station, Chunar of Ramesh Yadav. After giving his introduction he purchased 375 gm mustard oil @ Rs.5.10 and divided in three parts in three bottles; after pasting Code No.M.B.C. 2/82 on bottles and giving notice for examination, sent one bottle to the Public analyst next day and kept other two bottles in the office of Chief Medical Officer. According to report No. 24190 dated 7.12.1981(Ext. Ka-3) of Public Analyst, sample of mustard oil was found adulterated in which 32% of Teesi oil was mixed and only 68% of mustard oil was present. Said report and other papers were produced before Chief Medical Officer who accorded sanction to prosecute the accused.

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Accused revisionist was charged on 25.1.1983 under Section 7/16 of Act, 1954. Prosecution examined P.W.-1 Rajendra Prasad Srivastava and P.W.-2 Wajeer Ashraf. Clerk of CMO office was also examined.

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Accused accepted that Food Inspector purchased sample from his shop but he denied to acknowledge Public Analyst's Receipt No. 24190 dated 7.12.1981 and denied charges in his statement under Section 313 Cr.P.C.

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Trial Court believed prosecution case and convicted revisionist under Section under section 7/16 of Act, 1954 and sentenced of six months R.I. and a fine of Rs.1000/- and in default to deposit fine, to undergo additional three months' rigorous imprisonment. The accused-revisionist preferred Criminal Appeal No. 27 of 1987 but the same has been dismissed by impugned judgment dated 22.12.1987.

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Sri D.R. Chaudhary, learned counsel appearing for revisionist submitted that there was no independent witness justifying collection of sample by Food Inspector after following procedure laid down under Act, 1954 as well as the rules framed thereunder and hence there is complete non-compliance of Section 10(7) of Act, 1954. He also submitted that accused was not given notice of Section 13(2) of Act, 1954. He further submitted that the incident is of year 1981 and more than 37 years has elapsed, the accused is ready to deposit fine and has also undergone some period in jail, therefore, taking a lenient view in the matter punishment be reduced to the period already undergone.

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Learned AGA on the contrary supported the judgments of court below and contended that concurrent findings have been recorded by courts below, hence no ground for interference in criminal revision is made out.

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P.W.-1 stated that on being asked accused told him that he had no licence, but the licence was with his father. P.W.-1 proved Ext.Ka-1 (Form 6), Ext.Ka-2(receipt), Ext.Ka-3(Public Analyst's

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report), Ext. Ka-4, Ext.Ka-5(sanction given by CMO), Ext.Ka-6, Ext.Ka-7 (proceeding recorded in sample register), Ext.Ka-8 (bottle received from witness Siraj). P.W.-2 Wajeer Ashraf stated that notice of 13(2) Cr.P.C. with the report of Public Analyst' report was given to the accused and proved Registry No. 440 dated 17.8.1982 (Ext-Ka-9), Ext. Ka-10. Though Accused denied having received notice of 13(2) of Act, 1954. But P.W.-2 proved that notice under Section 13(2) with P.M. Report was sent to the accused. Hence Courts have rightly believed the case of prosecution.

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In order to see whether is any non-compliance of Section 10(7), it would be appropriate to have a perusal of aforesaid provision, which reads as under:

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"Section 10(7)- Where the Food Inspector takes any action under clause (1) of sub-section (1), sub-section (2), subsection (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures."

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The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954.

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Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons". The words "as far as possible" were deleted by amendment of 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc., it shall vitiate the Trial.

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A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 1991 Cri.L.J.

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2174 considered it and in para 2 of the judgment said that subsection (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.

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In another matter arisen from State of Uttar Pradesh itself, a three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said:

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"5. We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such

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circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 it was held by this Court after noticing that Section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

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As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."

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From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector at least should try to secure presence of one or more independent witness when he takes action under any of the provisions mentioned in Section 10(7). Once that has been done, evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable. It is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents.

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This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken

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from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample.

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Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here this Court is fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93 .

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The Apex Court in State of U.P. Vs. Hanif, AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case. P.W.-1 and P.W.-2 are public witnesses. They were Government servants and act done by them was in discharge of official duty.

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Accused has already admitted that Food Inspector had purchased mustard oil from his shop for sample. He only denied about the report of Public Analyst. Food Inspector deposed in this statement that Siraj Ahmad was present but he was ready to become witness of sample. Moreover, it is very practical that no one wants to become witness in any criminal case. The contention, therefore, that there was no independent witness to justify collection of sample by Inspector and thus there is non-compliance of Section 10(7) of Act, 1954, is rejected.

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Thus, this Court finds no force in argument of learned counsel for the revisionist. Both the Courts have given concurrent finding of fact and the view taken by Courts below is plausible view.

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The next submission is that the incident is of 1981 and more than 37 years have passed, hence punishment awarded to accused

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should be reduced to the period already undergone or only fine and placed reliance upon judgment of this Court in the cases of Chhotey Lal vs. State of U.P. in Criminal Revision No. 677 of 1987 decided on 17.4.1990; Ram Nandan Kesharwani vs. State of U.P. in Criminal Revision No. 1306 of 1987 decided on 8.3.1990 and upon judgment of Supreme Court in Bhagwan Das Motu Lal Navalani vs. State of Maharashtra, SCC-1987-2-645.

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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 such serious loss to the consumer, which is unrecoverable and create permanent disability or loss etc. We cannot presume that the oil 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 antihuman 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

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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 present case, the prosecution has proved the case beyond doubt. Accused has been found guilty of adulteration of oil. Court below has already taken a lenient view by imposing punishment of only six months 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, 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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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. Cases relied upon by the learned counsel for the revisionist are not in rem but in personum and they do not lay down any principle and on the basis of status of revisionist lenient view was taken by the Court concerned. Considering the facts and circumstances of this case, it will not be proper to take lenient view in this case as such adulteration in mustard oil is an offence of grievous nature. On the point of sentence, minimum punishment has been awarded by both Courts after taking lenient view.

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In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal

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revision is severely restricted and it cannot embark upon a reappreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent 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

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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 revisionist.

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The revision is, accordingly, dismissed.

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Interim order dated 31.7.1990 stands vacated.

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

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Copy of this order be transmitted to the Court concerned immediately for necessary compliance. Compliance report be submitted to this Court within three months which shall be kept on record.

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Order Date :- 14.9.2018 P.P.

Ramesh Yadav v. State

Case brief

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Ramesh Yadav v. State

Case brief

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