Madhya Pradesh High Court
Ashok Kumar Gupta vs The State Of Madhya Pradesh on 2 August, 2018
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRR No.2858/2017
HIGH COURT OF MADHYA PRADESH
BENCH INDORE
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Revision No.2858/2017
.........Applicant: Ashok Kumar Gupta
Versus
.......Respondent: State of M.P.
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Shri Ashish Gupta, Counsel for the applicant.
Mrs. Mamta Shandilya, Public Prosecutor for the
respondent/State.
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Date of hearing : 02/08/2018
Date of Judgment : 02/08/2018
Whether approved for reporting :
ORDER
(02/08/2018) This Criminal Revision under Section 397,401 of Cr.P.C. has been filed challenging the Judgment and sentence dated 11-10-2017 passed by Additional Sessions Judge, Sonkachh, Distt. Dewas in Criminal Appeal No. 19/2017, thereby affirming the judgment and sentence dated 13-5-2017 passed by J.M.F.C., Sonkachh, Distt. Dewas in Criminal Case No. 34/2011 by which the applicant has been convicted under Section 7(i), 2(ia)(m) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short "the Act, 1954"), and has been sentenced to undergo the rigorous imprisonment of 6 months and a fine of Rs. 1000/- with default rigorous imprisonment of 1 month.
2. The necessary facts for the disposal of the present revision in short are that on 11-10-2000, at about 4:00 pm, the complainant Almelu P.V., who was working on the post of Food Inspector, collected the sample of Paneer from the Gupta 2 CRR No.2858/2017 Dhaba and Restaurant situated on Bypass Road Sonkachh. The applicant introduced himself to be the license holder. The restaurant of the applicant was inspected and found that the applicant had kept paneer in the freezer for using the same in the kitchen. The complainant gave a written notice to the applicant in form no. 6 and obtained the signatures of the applicant on the second copy of the notice. The complainant purchased 800 gms of Paneer after making payment of Rs. 126/- at the rate of Rs. 140/- per Kg. and obtained the receipt. After adding 120 drops of formalin, the entire Paneer was made homogeneous and was divided into three parts. The Paneer was sealed in clean Food Grade Polythene and labels were affixed on the same. The polythenes were wrapped in brown papers and were sealed and the remaining formalities were completed. Thereafter, the samples were sent to the Public Analyst along with form 7 and a report was received from the Public Analyst. As per the report of the Public Analyst, the Paneer was found to be adulterated. Thereafter, a letter was sent to the Dy. Director, Food and Drugs Department, Dewas and after obtaining permission from the Dy. Director, sent an information and notice under Section 13(2) of the Act, 1954 to the applicant and accordingly, filed the complaint.
3. The Trial Court framed charge under Section 7(i) and 2(ia)(m) read with Section 16(1)(a)(i) of the Act, 1954. The applicant abjured his guilt and pleaded not guilty.
4. The prosecution in order to prove its case, examined Almelu P.V. (P.W.1) whereas the applicant did not examine any witness in his defence.
5. The Trial Court by its judgment and sentence dated 13-5- 2017 passed in Criminal Case No. 34/2011, convicted the applicant for offence under Sections 7(i), 2(ia)(m) read with Section 16(1)(a)(i) of the Act, 1954 and sentenced him to 3 CRR No.2858/2017 undergo the rigorous imprisonment of 6 months and a fine of Rs. 1000/- with default rigorous imprisonment of 1 month.
6. Being aggrieved by the judgment and sentence passed by the Trial Court, the applicant filed Criminal Appeal which was registered as Cr.A. No. 19/2017. The said Criminal Appeal has also been dismissed by the Additional Sessions Judge, Sonkachh, Distt. Dewas by judgment and sentence dated 11- 10-2017.
7. Challenging the Judgment and Sentence passed by the Courts below, the applicant has filed the present revision.
8. It is submitted by the Counsel for the applicant that the mandatory provision of Section 13(2)of the Act, 1954 has been violated. The report of the public analyst was sent to the applicant belatedly as a result of which his right to get the second sample tested from the Central Food Laboratory got seriously prejudiced. Even otherwise, there is nothing on record to show that whether the Paneer was prepared from cow milk, or buffalo milk or goat milk and under these circumstances, the contents of Milk Fat would differ and there is nothing on record that the Paneer was adulterated. It is not the case of the prosecution that anything else was mixed with the Paneer. Further, it is submitted by the Counsel for the applicant that since, the paneer is the mixture of two primary foods, therefore, in the light of Section 2(ia)(m) of Act, 1954, it cannot be said that the Paneer was adulterated.
9. Heard the learned Counsel for the applicant.
10. The first contention of the Counsel for the applicant is that as the notice under Section 13(2) of the Act, 1954 was sent belatedly, therefore, the valuable right of the applicant of getting the second sample tested from the Central Laboratory was adversely effected and as no useful purpose would have served, therefore, the applicant did not file an application for getting the second sample tested from the Central Laboratory, 4 CRR No.2858/2017 as the Paneer must have decomposed by that time and had become unfit for second test by the Central Food Laboratory. It is submitted that the report of the Public Analyst, Ex. P.15 is dated 18-11-2010 and was dispatched to the complainant on 19-11-2010 which was received by the complainant on 22-11- 2010, however, the same was sent to the applicant on 3-2- 2011, Ex. P.24 which was received by the applicant on 4-2- 2011, Ex. P.25.
11. Unfortunately, the submissions made by the Counsel for the applicant that since, the second sample of Paneer must have become decomposed and, therefore, the applicant did not file an application for getting the second sample tested from Central Food Laboratory, is misconceived and just contrary to the record. The record of the Trial Court shows that the complaint was filed by the complainant on 27-1-2011 and the applicant appeared before the Trial Court on 18-3-2011 and filed an application under Section 13(2) of the Act, 1954 for sending the second sample to the Central Food Laboratory. On the next date of hearing i.e., 24-6-2011, the application filed by the applicant under Section 13(2) of Act, 1954 was allowed and it was directed that the second sample be sent to the Central Food Laboratory for retesting. Accordingly, the report of the Central Food Laboratory dated 19-1-2012 was received which has been marked as Ex. D.1 and according to this report also, Sample of Paneer does not conform to the standards laid down under item A.11.02.05 of Appendix B of P.F.A. Rules, 1955. In that B.R., reading of extracted fat is 40 degree C is below the minimum limits laid down in table under item No. A.11.02.15 for Ghee of Appendix B of P.F.A. Rules, 1955. The sample is thus adulterated. The applicant has not called in question the report of the Central Food Laboratory. On the contrary, the revision was argued by the Counsel for the applicant under an impression that the applicant had never 5 CRR No.2858/2017 applied for retesting of the Second Sample from the Central Food Laboratory. In absence of any challenge to the report of the Central Food Laboratory, Ex. D.1, it is clear that the sample of Paneer which was collected by the Complainant Almelu P.V. (P.W.1) from the restaurant of the applicant was adulterated.
12. It was next contended by the Counsel for the applicant, that since, the report of the Public Analyst was sent belatedly after a period of near about 2 months and few days, therefore, the second sample of the Paneer must have become decomposed and unfit for retesting. To buttress his submissions, the Counsel for the applicant has relied upon the judgment passed by the Supreme Court in the case of Municipal Corporation of Delhi Vs Ghisa Ram reported in laws (SC) 1966 11 13, the judgment of High Court of Delhi in the case of State Vs. Ramesh Chand reported in LAWS (DLH) 2010 3 228, Chamanlal Vs. State of Delhi reported in LAWS (DLH) 1971 11 23. The applicant has also relied upon the judgment passed by the Court of Additional Sessions Judge, Patiala House Courts, New Delhi in the case of Rakesh Kumar Vs. State of NCT of Delhi passed on 16-3-2016 in CA No. 60/2015, however, the Counsel for the applicant, could not point out as to how, the judgment passed by the Additional Sessions Judge is binding on this Court.
13. So far as the submission made by the Counsel for the applicant that the second sample of Paneer must have decomposed making it unworthy of retesting by Central Food Laboratory is concerned, the same is misconceived and is rejected as the said ground is nothing but imaginary without there being any basis for the sample. As already held that the case in hand has been argued under an impression that since, the report of the Public Analyst was sent to the applicant after a period of about 2 ½ months, therefore, under an impression that the second sample must have decomposed and must have 6 CRR No.2858/2017 become unworthy of retesting, the applicant did not file an application under Section 13 (2) of the Act, 1954, but unfortunately, the facts are otherwise. In fact, the applicant had moved an application under Section 13(2) of the Act, 1954 for retesting of the second sample from the Central Food Laboratory and the said application was allowed and the second sample was sent to Central Food Laboratory for retesting. The report of the Central Food Laboratory, Ex. D.1 was received in which the condition of the sample, which was received by the Central Food Laboratory is also mentioned which reads as under :
"Analysis Report :
Physical appearance : Sample of Paneer was free from fungal growth, insects and any other visible extraneous matter."
14. Thus, it is clear that the Central Food Laboratory, did not find the second sample decomposed and unworthy of retesting and the applicant never challenged the report of the Central Food Laboratory. Thus, the contention of the applicant that because of delay in sending the report of the Public Analyst to the applicant, his valuable right under Section 13(2) of the Act, 1954 was prejudiced, cannot be accepted and hence, it is rejected.
15. The receipt of the report of the Public Analyst, by the applicant, is not in dispute.
16. It is next contended by the Counsel for the applicant that since, the prosecution has not proved that whether the milk of Cow or Buffalo or Goat was used for preparing the Paneer, therefore, it cannot be said that the Paneer was adulterated.
17. The submissions made by the Counsel for the applicant is misconceived and hence, liable to be rejected. The Paneer was seized from the restaurant of the applicant which was kept in the freezer. The said Paneer was found to be adulterated.
7 CRR No.2858/2017Therefore, under these circumstances, the burden had shifted on to the applicant to explain that the Paneer, was not adulterated. The applicant has not discharged his burden. At this stage it is submitted by the Counsel for the applicant that he had not prepared the Paneer but had purchased the same from the open market, therefore, he was not the manufacturer of the Paneer and was merely a vendor, thus, neither he was aware of the fact that whether the Paneer has been prepared from the milk of Cow or buffalo or Goat and under Section 19(2) of Act, 1954, only the manufacturer is liable and not the vendor.
18. The submission made by the Counsel for the applicant is misconceived and is hereby rejected. The applicant neither disclosed to the complainant, at the time of collection of sample that he has purchased the same from any other person nor produced any receipt of the purchase of the Paneer. Further even before the Court also, the applicant did not take any defence that he had purchased the Paneer from any particular shop or person. Under these circumstances it cannot be said that the applicant is entitled for protection under Section 19(2) of the Act, 1954.
19. It is the next contention of the Counsel for the applicant that since the Paneer is the mixture of two primary foods, therefore, in view of Section 2(ia)(m) of the Act, 1954, the sample of the paneer so collected by the complainant, cannot be said to be adulterated in the light of the report of the Public Analyst Ex. P.15. Considered the submissions made by the Counsel for the applicant.
"Section 2(ia)(m) of the Act, 1954 reads as under :
2(ia) adulterated : an article of food shall be deemed to be adulterated :
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are 8 CRR No.2858/2017 present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;"
20. Primary food has been defined under Section 2(ia)(xiia) of the Act,1954, which reads as under :
"2(ia)(xiia) - "primary food" means any article of food, being a produce of agriculture or horticulture in its natural form;"
21. It is submitted by the Counsel for the applicant that in order to prepare Paneer, an acid is mixed with the milk. However, in view of the definition of Primary food, an acid cannot be said to be a primary food. Thus, it cannot be said that the Paneer is the mixture of two primary foods, therefore, the applicant cannot get advantage of Section 2(ia)(m)(a) and
(b) of the Act, 1954. Therefore, the contention made by the Counsel for the applicant, that the Paneer is the mixture of two primary foods, therefore, the sample of Paneer, so collected from the Restaurant of the applicant cannot be said to be adulterated in the light of the report of the Public Analyst, Ex. P.15 cannot be accepted and hence, is rejected.
9 CRR No.2858/201722. No other submission is made by the Counsel for the applicant. The Counsel for the applicant also could not point out any perversity in the findings given by the Courts below.
23. Considering the submissions made by the Counsel for the applicant and for the reasons mentioned above, this Court is of the considered opinion, that the Prosecution has succeeded in establishing beyond reasonable doubt that the sample of Paneer which was collected by the complainant Almelu P.V (P.W.1) from the shop of the applicant on 11-10-2010 was adulterated and hence, the applicant has committed offence punishable under Section 7(i),2(ia)(m) read with Section 16(1)
(a)(i) of Prevention of Food Adulteration Act, 1954.
24. So far as the question of sentence is concerned, the Courts below have awarded the jail sentence of rigorous imprisonment of 6 months and a fine of Rs. 1000/- with default sentence of rigorous imprisonment of 1 month also does not require any interference.
25. Resultantly, the Judgment and Sentence dated 11-10- 2017 passed by Additional Sessions Judge, Sonkachh, Distt. Dewas in Criminal Appeal No. 19/2017 and the Judgment and Sentence dated 13-5-2017 passed by J.M.F.C., Sonkachh, Distt. Dewas in Criminal Case No. 34/2011 are hereby affirmed.
26. The applicant is on bail. His bail bonds and surety bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court, for undergoing the remaining jail sentence.
27. The revision fails and is hereby Dismissed.
ALOK KUMAR Digitally signed by ALOK KUMAR
Date: 2018.08.09 13:13:55 +05'30'
(G.S. AHLUWALIA)
Judge
AKS 02/08/2018