Dismissed

Ghaffor v. State and Others

Allahabad HC29 Aug 2018CRLR/507/1988

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision under Section 397 Cr.P.C. Contesting conviction for selling adulterated milk without a license. The Court rejected the claim that lack of independent witnesses under Section 10(7) of the PFA Act vitiated the trial, citing prior attempts to secure witnesses. It also refused to reduce the sentence due to the delay in proceedings.

What did the court decide?

Revision dismissed; interim order vacated; release granted if sentence fully served.

Ghaffor Vs State and Others — Writ and Judicial Review | Allahabad HC (2018)

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Reserved on 31.7.2018 Delivered on 29.8.2018

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 507 of 1988

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Revisionist :- Ghaffor Opposite Party :- State And Others Counsel for Revisionist :- S.D.N.Singh Counsel for Opposite Party :- A.G.A.,Mohd.Yusuf

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Hon'ble Aniruddha Singh,J.

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This criminal revision has been preferred by the revisionistGhaffor under Section 397 Cr.P.C. against the judgment and order dated 13.4.1988, passed by Ist Additional Sessions Judge, Saharanpur convicting the revisionist under Section 16(1)(c) of the U.P. Prevention of Food Adulteration Act, 1954 and sentencing him to undergo six months rigorous imprisonment with a fine of Rs.1000/and in default of payment of fine, he shall further undergo rigorous imprisonment for three months and further sentencing him under Section 7(iii) read with Rule 50(1) and Section 16(1)(a)(iii) of the said Act and sentencing him with a fine of Rs.500/- and in default of payment of fine, he shall further undergo three months rigorous imprisonment.

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In nutshell, the facts of the case are that one complaint was filed against the revisionist under Section 7/16 of the U.P. Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act'), Police Station-Nagal, District Saharanpur alleging that on 14.11.1980 at 8-00 a.m., near Talheri Railway Station, the revisionist was found selling adulterated milk, which was checked by Deep Singh, Food Inspector by giving him introduction and tried to get the sample of milk and licence, the revisionist was found without licence and informed that he was selling the cow milk. When complainant tried to get the sample for chemical examination, he refused to give sample and challenged the complainant that he can do whatever he can, and thrown the milk from the tanker in the field, by throwing cycle, insulted the Food Inspector and fled away from the place of occurrence.

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Deep Singh, Food Inspector, prepared memorandum (Ex.Ka1), Tehriri Report (Ex.Ka 2), after obtaining sanction from the Chief

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Medical Officer, Saharanpur for prosecution of the revisionist, prepared (Ex.Ka3), a complaint was filed before the competent court. The accused was summoned and charges were framed. The complainant in evidence has examined himself and two witnesses, namely, P.W.1Raj Kumar and P.W. 2-Brajpal.

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Statement of the accused was recorded under Section 313 Cr.P.C.

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After hearing learned counsel for both the parties, by order dated 23.3.1984 the Special Judicial Magistrate( Economic Offences), Deoband, Saharanpur convicting and sentencing the revisionist for breach of Section 7(iii) read with Rule 50(1) under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act to pay a fine Rs.500/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of three months and further convicting and sentencing the revisionist under Section 16(1)(a) for six months rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of three months. Against this judgment, Criminal Appeal No. 124 of 1984 was preferred by the revisionist and that was dismissed vide order dated 13.4.1998. Hence this revision.

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Heard Sri Vikrant Gupta, Advocate, holding brief of Sri Mohd. Islam Ansari, learned counsel for the revisionist and Sri Mayank Mishra, learned A.G.A. for the State.

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Learned counsel for the revisionist submitted that there was no independent witness to the said incident, hence there is complete noncompliance of Section 10(7) of the Act. He further submitted that this is a old matter and the revisionist had already undergone some period in jail, therefore, a lenient view may be taken in the matter and the punishment may be reduced to the period already undergone.

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P.W.1-Ram Kumar, and P.W.2- Brajpal have categorically stated that at the time, date and place, the incident was taken place and revisionist refused to give sample to the Food Inspector and he prepared memorandum (Ex.ka-1) Tehriri Report, (Ex.ka-2) obtaining sanction from the Chief Medical Officer for prosecution of the revisionist and (Ex.ka-3). The Food Inspector is the Government servant. There was no enmity with the revisionist. He had worked in

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ordinary course of business in service. In general, evidences of P.W.1 and P.W.2- cannot be disbelieved. P.W.1-Ram Kumar and P.W.2Brajpal have admitted in their cross-examination that the incident had taken place but they have also stated that revisionist fled away from the place of occurrence and this fact has also been admitted that the revisionist was selling milk without licence. This fact has also been admitted that there was no enmity between the Food Inspector, P.W.1, P.W.2 and the revisionist. There is no ground to disbelieve the statements of P.W.1 and P.W.2.

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Learned counsel for the revisionist submitted that no compliance of Section 10(7) of the Act has been properly made on this issue.

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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. 2174 considered it and in para 2 of the judgment said that sub-section (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

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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 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 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

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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 I am 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.

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Following the above authorities and taking similar view, this Court in Criminal Revision No. 976 of 1989 (Ramesh Chandra Vs. State of U.P.) decided on 11.12.2014 in para 18 of judgment said as under:

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"18. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial."

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In Nathoo Vs. State of U.P. (Criminal Revision No. 168 of 1987) , decided on 04.09.2015, this Court in para 19 of the judgment said as under:

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"19. In the present case, the prosecution has clearly proved that an attempt was made to get independent witness at the time of taking sample and seizure but since none came forward, hence, the Food Inspector proceeded further. Hence the mere fact that independent witness is not there, proceedings would not vitiate."

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The contention of non-compliance of Section 10(7) of Act, 1954, is liable to be rejected, hence it is rejected.

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The next submission is that the incident is of the year 1988 and more than 30 years have passed, hence punishment awarded to

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accused should be reduced to the period already undergone or only fine.

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Next argument was made by the learned counsel for the revisionist that the case is very old, hence lenient view may be taken and if the accused-revisionist is sentenced to the period already undergone with fine.

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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 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

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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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The revisionist is in jail. The Chief Judicial Magistrate concerned shall ensure that sentence awarded by the court concerned is served out and if he served out, he shall be released forthwith, if he is not wanted in any other crime.

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Office is directed to send the copy of this to the concerned court within 24 hours through FAX or e-mail. Lower court record be sent to the court concerned within three days.

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Order Date :- 29.8.2018

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Ghaffor v. State and Others

Case brief

What is this about?

What did the court decide?

Ghaffor v. State and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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