Dismissed

Shamim Ahmad v. State and Others

Allahabad HC4 Sept 2019CRLR/1183/1986

Case brief

AI extract

What is this about?

In a criminal revision regarding a conviction under the Prevention of Food Adulteration Act, the High Court dismissed the plea that lack of an independent witness and failure to shake milk rendered the trial vitiated. The Court held that notices were properly served despite a clerical error in the court name.

What did the court decide?

Revision dismissed; revisionist Shamim Ahmad to be arrested and lodged in jail to serve sentence.

Shamim Ahmad Vs State and Others — Criminal Trial and Appeal | Allahabad HC (2019)

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AFR Reserved on 02.08.2019 Delivered on 04.09.2019

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Court No. - 34

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Case :- CRIMINAL REVISION No. - 1183 of 1986

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Revisionist :- Shamim Ahmad Opposite Party :- State of U.P. and others Counsel for Revisionist :- K.B. Garg, Mukhtar Alam, S.A.Imam, Saquib Mukhtar, T.B.Islam Counsel for Opposite Party :- A.G.A

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Hon'ble Sudhir Agarwal, J.

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Heard Sri Mukhtar Alam, Advocate, for Revisionist and learned A.G.A. for respondents.

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This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 15.03.1985 passed by Special Judicial Magistrate, Nagina, Bijnor in Case No. 1335 of 1982 convicting Revisionist under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) and sentencing him to undergo six months' rigorous imprisonment and a fine of Rs. 1000/- Thereagainst AccusedRevisionist preferred Criminal Appeal No. 78 of 1985 which has been dismissed by 2^nd Additional Sessions Judge, Bijnor vide judgment and order dated 28.06.1980.

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The prosecution story, inter alia, is that on 30.04.1982 at about 07.00 AM, Sri Virendra Kumar, Food Inspector found AccusedRevisionist, Shamim Ahmad, carrying about 20 liters of buffalo milk in two canes on his cycle for sale on Nethaur Road in Village Mehmoodpur, District Bijnor. Food Inspector suspected the milk to be adulterated and thereupon after disclosing his identity and serving necessary notice, took a sample of 660 M.Ls. buffalo milk from Accused-Revisionist and paid the cost. Necessary receipt was issued to Revisionist who put thumb mark on it. Sample was divided into three parts and after observing all formalities, one was sent to Public

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Analyst for examination and rest two were deposited in the Office of Chief Medical Officer, Bijnor. Public Analyst found the milk deficient in fat contents by 17 per cent and non fatty contents by 1 per cent. After obtaining necessary sanction from Chief Medical Officer, Bijnor, complaint was filed by Food Inspector against AccusedRevisionist in the Court.

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Accused-Revisionist was prosecuted for the offence under Section 7/16 of Act, 1954. In his statement under Section 313 Cr.P.C. he denied to have sold any sample of milk to Food Inspector. According to him, he did not carry on the profession of selling milk but he was a Labourer. He was doing labour in the Hospital, Kotwali, Food Inspector wanted to take work from him to which he did not agree and thereupon Food Inspector got his thumb impression on the alleged notice Ex. Ka-1 and receipt Ex. Ka.-2.

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Prosecution, in support of its case, examined Sri Virendra Kumar, Food Inspector, as PW-1, Sri Athar Husain, Clerk in office of Chief Medical Officer as PW-2 and Sri Mool Chand, Vaccinator, as PW-3. Revisionist in defence examined Raees Ahmad as DW-1.

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After recording oral testimony and perusing material on record, Trial Court convicted and sentenced Accused-Revisionist, as stated above, vide judgment and order dated 15.03.1985 which has been confirmed by Appellate Court by dismissing Revisionist's appeal, vide judgment and order dated 28.06.1980. This revision has been filed challenging both the aforesaid orders.

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Judgements of Courts below have been challenged on the grounds that; (1) there was non compliance of Section 10(7) of Act, 1954 inasmuch there was no independent witness for sample taken by Food Inspector, (2) before taking sample, milk was not properly shaken which is mandatory requirement, (3) copy of Public Analyst Report was not supplied to Revisionist in time and there was a complete non compliance of Section 13(2) of Act, 1954.

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So far as first aspect is concerned, it is now well settled that when independent witnesses are not available, Food Inspector can proceed to take sample and mere non-availability of independent witness will not vitiate proceedings. A three Judges Bench of Apex Court in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 has held that if no independent witness was willing to cooperate, Food Inspector cannot compel their presence. Hence, proceedings will not be vitiated for non availability of independent witness and Section 10(7) will not help the accused at all.

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Now coming to second aspect, it cannot be doubted that milk is a primary product containing fat content and the fat content would also depend on the manner in which sample is taken after stirring. Supreme Court in K. Harikumar Vs. Food Inspector, Punaloor Municipality 1995 Supp. (3) SCC 405 has held that stirring and churning of milk before taking sample is necessary. Therefore, it was necessary to establish that the sample was taken in a proper manner after stirring which would make the fat and non-fat into homogenous mixture.

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In the present case, record shows that Food Inspector though stated that he stirred and churned the milk before taking sample, but it is contended that there is no other evidence to corroborate the same. I find that on this aspect, there is no cross-examination. For mere absence of corroboration, Food Inspector's evidence cannot be disbelieved particularly when I do not find any otherwise evidence to doubt the testimony of Food Inspector. It has been repeatedly held that mere fact that if a Police official has given evidence, the same is not to be disbelieved if not corroborated by any other evidence.

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If the evidence of police officer is found acceptable, it would be an erroneous proposition that Court must reject prosecution version solely on the ground that no independent witness was examined. In

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Pradeep Narayan Madqaonkar & others vs. State of Maharashtra 1995 (4) SCC 255 , it was held:

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"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation of the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."

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In Balbir Singh Vs. State 1996(11) SCC 139 , Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated time and again by Apex Court vide Paras Ram vs. State of Haryana 1992 (4) SCC 662, Sama Alana Abdulla vs. State of Gujarat 1996 (1) SCC 427 and Anil alias Andya Sadashiv Nandoskar vs. State of Maharashtra 1996 (2) SCC 589 .

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In Subhash Singh Thakurshyam vs State (Through CBI) (1997) 8 SCC 732 , a Two Judge Bench of the Apex Court comprising of Hon'ble M. Mukherjee and Hon'ble K. Thomas JJ, in para 90 observed:

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"....We should not forget that the time of the raid was during the odd hours when possibly no pedestrian would have been trekking on the road nor any shopkeeper remaining in his shop nor a hawker moving around on the pavements."

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In State of U.P. v. Zakaullah 1998 Cri. L.J. 863 in para-10, it is said:

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"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not

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for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."

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Referring to some of the the aforesaid decisions, Court in Girja Prasad Vs. State of M.P. (2007) 7 SCC 625 held:

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"It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is

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no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence." (para 25)

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In the present case, it is not the case of Revisionist that when sample was taken, any independent witness was present and that should have been produced to corroborate the testimony of Food Inspector that before taking sample, milk was properly stirred. Moreover, Food Inspector has given a categorical statement on this aspect and since defence has not cross-examined on this aspect, I find no reason to disbelieve the otherwise testimony of Food Inspector on this aspect. Accordingly, even the second contention, noticed above, has no substance and is rejected.

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Therefore, even the second contention, I find has no force.

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Now coming to third submission, I find that despatch of Public Analyst Report has been shown as a proper compliance of Section 13 (2) of Act, 1954 but there is nothing to show that the said report was actually acknowledged or received or served upon Revisionist. Complaint was lodged in the Court on 16.08.1982 and notice was sent under Section 13(2) to revisionist on 19.08.1982. The revisionist appeared in the Court on 30.10.1982 and was released on bail. The issue of compliance of Section 13(2) has been decided by Courts below only on the ground that Revisionist did not apply for examination of food material by Central Food Laboratory and, therefore, cannot raise any grievance of non-compliance of Section 13(2) of Act, 1954 but here I find that service of notice upon accused was necessary to be proved by Prosecution so as to prove compliance of Section 13(2) of Act, 1954. This is mandatory. This aspect has been

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considered by Supreme Court very recently in Vijendra Vs. State of U.P. and others (Criminal Appeal No. 1167 of 2019) (Arising out of S.L.P. (Criminal) No. 4314 of 2015) decided on 31.07.2019 and in para 15 of judgment, Court has said as under:

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“The very purpose of furnishing such report is to enable the Accused to seek for reference to the Central Food Laboratory for analysis if the Accused is dissatisfied with the report. Such safeguard provided to the Accused Under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the Accused; in the instant facts the valuable right available to the Accused/Appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the Appellant/Accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since as already noticed above the report of the Analyst has not in fact been served on the Appellant and the mere despatch of the report as per the statement of PW-2 was not sufficient.” (emphasis added)

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Learned A.G.A., at this stage, did not dispute that service of notice under Section 13(2) is necessary but pointed out that in the present case, factum that notice was received by Revisionist was not disputed at all for the reason that issue raised before Lower Appellate Court was that notice received by Revisionist has wrong mention of Court which shows that notice was actually received by Revisionist and issue raised before this Court is contrary to what was contended in Courts below.

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I find substance in what is said by learned A.G.A. Judgment of

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Lower Appellate Court, in para-9 shows that while arguing that there was non-compliance of Section 13(2) of Act, 1954, AccusedRevisionist argued that name of Court was wrongly mentioned in the notice. This argument was not found correct by Lower Appellate Court as is evident from following findings:

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“9. It has next been argued by the learned counsel for the appellant that there has not been any compliance of Rule 13(2) of the Act inasmuch as in the information given to the appellant the name of the Court has been written as Munsif Magistrate Nagina whereas the complaint was filed in the Court of Ist Addl. Munsif Magistrate, Nagina. This contention too is not acceptable as in the present case, complaint was filed in the Court of Ist Addl. Munsif Magistrate on 16.8.82. The information u/s 13(2) of the Act was sent to the appellant on 19.8.82 by registered post which is Ext. Ka.-1. In this information it has been mentioned that the complaint had been filed against him on 16.8.82 in the Court of Munsif Magistrate, Nagina Distt. Bijnor. ” (emphasis added)

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I have gone through the judgment of Courts below carefully and find that there was no complaint made before Court below that notice under Section 13(2) was not received by Accused-Revisionist at all, and, therefore, his right under Section 13(2) was violated. In fact, Revisionist sought to challenge the said notice on different ground which has not been found of any substance by Courts below. 22. Therefore, as a proposition of law, it cannot be doubted that prosecution, when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused but where accused at the stage of Revision raise such plea that notice has not been served upon him and there is non-compliance of Section 13(2), but no such issue was raised in Courts below particularly, Lower Appellate Court, this Court would not allow accused to take such factual plea when as a

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matter of fact, the stand taken before Courts below shows that service of notice was not disputed, instead notice was challenged on another ground. The mere fact that mention of wrong Court was an issue raised before Court below is sufficient to prove the fact that notice was actually served upon Revisionist. Hence, even third submission has no force.

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No other point has been argued.

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The revision lacks merits. Dismissed.

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The Revisionist, Shamim Ahmad, is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate, Bijnor shall cause him them to be arrested and lodged in jail to serve out sentence passed against him. The compliance shall be reported within two months.

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Certify this judgment to the Lower Court immediately. Dt. 04.09.2019 PS

Shamim Ahmad v. State and Others

Case brief

What is this about?

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Shamim Ahmad v. State and Others

Case brief

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