Dismissed

Mool Chand v. State

Allahabad HC16 Nov 2019CRLR/1932/1990

Case brief

AI extract

What is this about?

In a criminal revision under Section 397/401 Cr.P.C., the revisionist challenged conviction and sentence under the Prevention of Food Adulteration Act, citing lack of independent witnesses, failure to serve notice to sell milk, and alleged underage status. The court held there was no violation of Section 10(7) as witnesses were unavailable despite attempts, the Petitioner was not underage due to u

What did the court decide?

The criminal revision is dismissed. The interim order, if any, stands vacated. The judgment is certified to the lower court.

Mool Chand Vs State — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 34

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Case :- CRIMINAL REVISION No. - 1932 of 1990 Revisionist :- Mool Chand Opposite Party :- State Counsel for Revisionist :- Rahul Bhardwaj, A. K. Mishra Counsel for Opposite Party :- A.G.A.

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Hon'ble Sudhir Agarwal,J.

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Heard Sri A. K. Mishra, learned counsel for Revisionist, learned A.G.A. for State-respondent and perused the record.

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This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by judgments and orders dated 04.01.1989 and 24.11.1990. The Judicial Magistrate (Economic Offiences) Mathura vide judgment and order dated 04.01.1989 convicted and sentenced Revisionist to undergo rigorous imprisonment for six months under Section 16 (1) (a) (I) read with Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”). Thereagainst Revisionist has preferred Criminal Appeal No.7 of 1989 before Court of Special/Additional Sessions Judge, Mathura (hereinafter referred to as “Appellate Court”) and Appellate Court while dismissing the appeal vide judgment and order dated 24.11.1990 has confirmed the judgment and order of conviction passed by Trial Court.

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It is contended that firstly prosecution has not proved that Revisionist was selling milk and secondly, there was no independent witness while collecting sample, hence, requirement of Section 10(7) of Act, 1954 was not complied and thirdly, Revisionist was below age of 18 years on the date of collecting sample, hence, it was incumbent upon Magistrate to comply with requirements of Section 20 AA of Act, 1954.

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So far as question of selling milk is concerned, I find that this aspect has been considered in detail in para 11 of lower Appellate Court and findings recorded reads as under :

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“11. It has firstly been vehemently aruged that since the milk was not for sale, the F.I. Was not competent to collect the

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sample of milk from the accused and the accused could not be said to have committed any offence under the Act. Having given my anxious consideration to the facts and circumstances and the evidence on record, I found no truth in this argument. As mentioned just hereinagove, before having collected sample of milk from the accused the F.I. Prepared notice in form no.6, served the original on the accused, carbon copy Ex.Ka-1 whereof was on the record. It has been mentioned in the notice itself that the accused was carrying in a can (tanki) about 10 Kgs of milk having a measuring pot of half kg in the can itself. The F.I. Also prepared inspection memo Ex.Ka-3 on the spot. The fact that the accused was carrying about 10 kgs of milk in the can having a measuring pot of half Kg therein had again been mentioned in this inspection memo. There is the positive evidence of PW1, F.I. H. B. Lavaniya to the effect that the accused was checked, copy in form No.6 was served on the accused, inspection memo was prepared and on having interrogated as regards the class of the milk the accused disclosed that the milk was mixed milk of cow and the buffalo for sale. The accused was carrying 10 kgs of milk in a can alongwith a measuring pot of half Kg therein. On the other hand the case of the accused is that he was carrying about 2- 2½ Kg milk to DW1 Ramesh Chandra Agarwal who was his teacher. Ramesh Chandra Agarwal has appeared in witness box to rescue the accused as DW 1 and he stated on oath that he asked the accused, who was his taught, to bring 2½ Kg milk for him. On his request the accused was carrying milk for him without any payment. The milk was not for sale. As mentioned just thereinabove the accused was found carrying about 10 Kg of milk in a can having a measuring pot of half Kg therein. The case of the accused and the evidence of DW1 Ramesh Chandra Agarwal is falsified only by the fact mentioned above. It may further be mentioned that even according to the evidence of DW1 the accused was a student of Class 10^th in those days. When the accused was examined u/s 313 Cr.P.C. he admitted to have been checked by F.I. and taken sample of milk from him on payment of price. As regards the preparation of the spot memos, he offered a lame explanation that his signatures and thumb impressions were obtained thereon blank forms. The accused was not a rustic

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and illiterate person. He was reading, even according to the evidence of DW1, in those days in Class 10^th . It was not expected from him to have signed on the blank forms. Assuming for the sake of argument and for a moment that the F.I. Obtained his thumb impressions and signatures on the spot memos on the blank forms, atleast thereafter he should have made a complaint to someone. Admittedly the accused did not do so. For all these reasons I do not find even slightest force in the first contention raised by the learned counsel for accused and accordingly it is rejected.”

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When asked, learned counsel for Revisionist could not show any perversity or illegality in aforesaid findings recorded by lower Appellate Court, which is concurrent with findings of Trial Court.

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With regard to age, it appears that before Court below reliance was placed on certificate, paper no.19Aa/2 and a Transfer Certificate i.e. Paper No.19Aa/3 but from judgment of lower Appellate Court it appears that said documents were not found proved, hence, they were held as not admissible in evidence. The relevant findings recorded in Para 14 of judgment by lower Appellate Court reads as under :

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“14. It has lastly been submitted that the accused was below 18 years of age on the date of collection of the sample and hence in view of the provisions of Sec.20AA of the Act, he should be given the benefit of the Probation of Offenders Act, 1958. Reference in this connection has been made to the certificate paper no.19Aa/2 and transfer certificate form paper no.19Aa/3. It has been brought to my notice that in the transfer certificate the date of birth of the accused has been shown to be 27-4-1985. In this way the age of the accused on the date of the collection of the sample comes to 16 years, 10 months and 12 days. Reliance has also been placed on the certificate purporting to have been issued by Pradhan of the village on 23.10.1986 stating therein that before the date of the issue of this certificate the accused was below 16 years. Having given my anxious thought to both these documents, at

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the very outset, I may mention that they have not been proved in accordance with law. The certificate purporting to have been issued by the Gram Pradhan is nothing but an opinion of a living person which cannot be read in evidence unless and until he was examined in the court.

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Similarly the transfer certificate has also not been proved by the person issuing the same. The learned trial court has rightly not believed on these two certificates.”

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So far as non complying with provisions of Section 10 (7) of Act, 1954 is concerned, once 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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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 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

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proceeded further. Hence the mere fact that independent witness is not there, proceedings would not vitiate.

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Counsel for Revisionist has placed reliance in Vijendra vs. State of U. P., 2019 Law Suit (SC) 1395 but here I find that basically Supreme Court has set aside the proceedings since there was no compliance of Section 13 (2) of Act, 1954 and Public Analyst's report was not served upon accused persons and this fact was not proved. Para 18 of judgment makes it clear and reads as under :

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“18. Therefore, in that circumstance even if the other aspects are not adverted to, the very fact that the Analyst's report being served not being proved and the sample being taken in an appropriate manner not being established, it would be sufficient to hold that the prosecution has not proved the guilt of the appellant beyond reasonable doubt and the conviction is not justified. In that view, the judgments dated 02.06.1987, 01.11.1988 and 09.12.2014 passed respectively by the Judicial Magistrate, Hapur, Ghazibad, the Additional Sessions Judge, Ghaziabad and the High Court of Allahabad are set aside and this appeal is allowed. The appellant is acquitted of the charge under Section 7 (1)/16(a) (i) of Prevention of Food Adulteration Act.”

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Thus aforesaid judgment is not applicable to facts of this case. No other point has been argued in this revision.

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The revision is dismissed. Interim order, if any, stands vacated.

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Certify this judgment to the lower Court immediately.

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Order Date : 16.11.2019 Manish Himwan

Mool Chand v. State

Case brief

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Mool Chand v. State

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