Himachal Pradesh High Court
Sanjay Kumar vs State Of Himachal Pradesh on 6 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No. 41 of 2008.
Judgment reserved on: 02.04.2018.
Date of decision: 6th April, 2018.
Sanjay Kumar .......Petitioner.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1No For the Petitioner : Mr.Satyen Vaidya, Senior Advocate with Mr.Vivek Sharma, Advocate.
For the Respondent : Mr.Vinod Thakur, Additional Advocate General with Mr.Bhupinder Thakur, Deputy Advocate General.
Tarlok Singh Chauhan, Judge .
Aggrieved by the judgments of conviction and sentence passed by the learned Judicial Magistrate Ist Class, Theog, on 14.08.2007/25.08.2007 and affirmed by the learned Sessions Judge, Shimla, on 13.02.2008, the petitioner has filed the instant revision petition under Section 397 of the Code of Criminal Procedure (for short 'Code').
2. On a complaint having been filed by the Food Inspector, the petitioner was tried for an offence punishable under Section 16(1)
(a) (i) of the Prevention of Food Adulteration Act, 1954 (for short 'Act').
It was alleged therein that on 11.11.2005 at about 10.30 a.m., the Food Inspector/Complainant (for short 'Complainant') inspected the shop of the petitioner i.e. shop 'M/s Sood Brothers, Chhailla' and found the Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 2 petitioner conducting the business of the shop as a proprietor thereof.
He was having 4x500 grams poly packs of 'Gupta Special Agra Petha' .
on counter kept for sale to the general public. It was thereafter averred that the complainant after disclosing his identity issued notice, declaring his intention to take sample of 'Petha' for the purpose of analysis.
Thereafter, the complainant purchased 3x500 grams poly packs of 'Petha' on cash payment of Rs.60/- and 'Petha' so purchased was separately labelled and wrapped into a thick paper.
3. After completing the requisite formalities, the complainant prepared the spot map in the presence of the witnesses Raj Kumar and Ashok Kumar. The sample was thereafter sent to the Public Analyst, Kandaghat and the same on examination was found to be misbranded as the month and year in which the product had been manufactured or packed and the month and year upto which the product was best for consumption had not been mentioned on the label.
The complainant after obtaining sanction to launch prosecution against the petitioner filed the complaint before the learned trial Magistrate, who vide his judgment dated 14.08.2007/25.08.2007 convicted the petitioner and sentenced him to undergo simple imprisonment for six months and pay fine of Rs.1,000/- under Section 16(1)(a)(i) of the Act and in case of failure to pay the fine, the petitioner was ordered to suffer further simple imprisonment for one month.
4. The petitioner being aggrieved filed an appeal before the learned Sessions Judge, Shimla, but the same came to be dismissed vide judgment dated 13.02.2008. It is against both these judgments that the petitioner has filed the instant revision petition on the ground ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 3 that the findings recorded by the learned Courts below are totally perverse and, therefore, not sustainable in the eyes of law.
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5. It is vehemently argued by Shri Satyen Vaidya, Senior Advocate assisted by Shri Vivek Sharma, Advocate that the findings recorded by the learned Courts below are totally perverse as the same are not based on correct appreciation of evidence and the provisions of law and are, therefore, deserve to be set aside. Whereas, on the other hand, learned Additional Advocate General r would contend that the findings rendered by the learned Courts below being strictly in conformity with law and based on correct appreciation of evidence do not call for any interference.
I have heard the learned counsel for the parties and have gone through the records of the case.
6. However, before I deal with the contentions put-forth by the learned Senior counsel for the petitioner, it would be necessary to delineate the scope and power of this Court whi le dealing with revision petition of the instant kind.
7. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioner has been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 4 prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in .
its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner:-
"In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the powe r, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".
In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon'ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence"
as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 5 and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the .
order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope."
In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.
In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint."
In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 6 nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own .
conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would r indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment."
8. Adverting to the facts, it would be noticed that the complainant in order to establish his case has examined four witnesses.
9. PW-1 Naresh Kumar, Dealing Assistant, from the Office of CMO proved on record the receipt of two parts of sample on November 11, 2005 along with two copies of Form No.VII. He deposed that on receipt of report of Public Analyst on 3rd January, 2006, one copy was sent to the complainant. He further stated that after written consent Ex.PW-1/A was received, notice under Section 13(2) of the Act was issued to the petitioner vide postal receipts Ex.PW-1/D and Ex.
PW-1/E. While being cross-examined, the witness stated that no register was being maintained by him qua receiving of the written consent. He further admitted that there was no acknowledgment affixed with the aforesaid notice, but denied the suggestion that the written consent was not given and further denied that no notice as aforesaid had been issued to the petitioner.
10. PW-2 Ashok Kumar, Peon, in the Office of CMO, Shimla, stated that he along with the complainant had gone to the shop of the ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 7 petitioner where the complainant purchased three packets of 'Petha' on payment of Rs.60/- vide receipt Mark X-1. He further deposed that .
every packet so purchased was leveled, folded with paper and paper slip was then affixed and lastly all these samples were sealed. He further stated that on 14th November, 2005, he had taken one sealed packet along with sealed envelope to the Public Analyst, Kandaghat and on return receipt Ex.PW-2/A was given to the complainant. In his cross examination, the witness admitted that he used to be a witness in all the food cases. He stated that there were shops on both sides of the shop of the petitioner. He further stated that the complainant had checked the licence of the shop but the same was not taken into possession. He further stated that witnesses were called by the complainant. Lastly, he stated that for the purpose of taking the samples to Kandaghat, they had maintained the register.
11. PW-3 Raj Kumar is the witness associated by the complainant at the time of taking of samples. However, he turned hostile and was thereafter permitted to be cross examined by the complainant. During cross examination, he admitted that the complainant had come to the shop of the petitioner on November 11, 2005. He further admitted that the petitioner had kept 'Agra Petha' for sale. He also admitted that the complainant had taken three packets of 'Agra Petha' after paying Rs.60/-. He further admitted that thereafter these samples were labelled and wrapped in a big paper and sealed.
He further admitted that entire proceedings of taking samples were conducted by the complainant on the spot in his presence and as per procedure. On being cross examined by the petitioner, the witness stated that on the big packet in which 'Petha' was packed, the name of ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 8 the company and date etc. were written. He further stated that the petitioner had disclosed to the complainant that dates of manufacturing .
and expiry were written on the packet.
12. PW-4 Shri L.D.Thakur is the complainant and deposed that he had inspected the premi ses known as 'M/s Sood Brothers, Chhailla' on November 11, 2005 at about 10.30 a.m. and found that Sanjay Kumar, the present petitioner, was conducting the business of the shop as a proprietor. He was having four poly packs of 'Gupta Special Agra Petha' on counter kept for sale to the general public. He revealed his identity and issued notice Ex.P-1 declaring his intention to take sample of 'Gupta Special Agra Petha' for purpose of analysis. He thereafter purchased three packets of 'Petha' on cash pay ment of Rs.60/- vide receipt Ex.P-2. 'Petha' so purchased was separately labelled, wrapped into a thick paper and paper slip bearing serial number and code number S-I/3741 issued and signed by the Local Health Authority, Shimla was affixed with glue from top to bottom of each packet. The signatures of the petitioner were taken in such a manner so that they appear both on the paper slip as also wrapper. The packets were fastened with strong thread and sealed with sealing wax. This process was witnessed by Raj Kumar and Ashok Kumar. Spot memo Ex.P-3 was prepared on the spot. Later, one part of sample was sent to the Public Analyst, Kandaghat along with memos Ex.P-4 and also Ex.P-5, seal impressions of seal that was used to seal the sample. Two parts of the sample were deposited with the Local Health Authority vide Ex.P-6.
The Public Analyst found the sample to be misbranded vide his report Ex.P-7 which was received by him from the Local Health Authority vide Ex.P-8. The CMO, Shimla, accorded sanction to prosecute the ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 9 petitioner vide Ex.PW-1/A that too after going through the documents and other material placed before him vide application Ex.P-9. In cross .
examination, the witness admitted that he had a witness in many food cases and even on that day, the samples were taken from the other shops also. He admitted that Atma Ram witness was already present in the shop, however, he denied that no sample was taken in his presence. He stated that on that date in total nine samples were taken and except witness Raj Kumar, other witnesses were not called to the spot. In his further cross examination, he stated that he had asked the petitioner to disclose from where he had brought 'Petha' and according to the petitioner, it was brought from Chandigarh. He denied that 'Petha' was kept in one big packet. He further denied that on the packet, date of manufacturing and date of expiry etc. were written. He further denied that packet had been seen by witness Raj Kumar.
13. The petitioner also led evidence by examining Parkash Sharma as DW-1, who stated that on November 11, 2005 at about 10.30 a.m. to 11.00 a.m., he had gone to the shop of the petitioner to purchase articles. The complainant was present there and had taken sample of 'Petha' which was kept in a big box and it was not in packets.
The packets were thereafter prepared by the complainant himself. He further stated that the box in which 'Petha' was kept was having date of manufacturing and packing. He further stated that the box was not taken into possession by the complainant. While being cross examined, the witness denied that on November 11, 2005, there were 4x500 poly packs of 'Petha' in the shop of the petitioner. It was denied that the complainant had taken three packets of 500 grams each as sample.
::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 1014. The petitioner examined another witness Parkash Hekta as DW-2, who in his examination in chief deposed in the same and .
similar manner as deposed by DW-1. In his cross examination, this witness denied that there were 4x500 poly packs of 'Petha' in the shop of the petitioner. He further denied that the complainant had taken three packets of 500 grams each for sample. This in entirety is the evidence led by the parties.
15. Notably, the petitioner has not denied that he was not selling 'Gupta Special Agra Petha' on the fateful day. His only defence appears to be that this 'Petha' was kept in a big container or packet which was complying with the provisions of the Act inasmuch as the date of manufacturing, date of expiry etc. had been mentioned.
16. Rule 32(f) of the Prevention of Food Adulteration Rules, 1955, (for short Rules) provides as under:-
"(f) Date of manufacture or packing-
The date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label:
Provided that the month and the year of manufacture, packing or pre-packing shall be given if the "Best Before Date"
of the products is more than three months:
Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned on the label."
17. Therefore, even if, it is assumed that 'Petha' was kept in the larger container, but the fact remains that the poly packs contained therein were for the purpose of selling in retail which did not comply with the provisions of Section 2(ix) of the Act which read thus:-
::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 11""misbranded"-- an article of food shall be deemed to be misbranded--
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(a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;
(b) if it is falsely stated to be the product of any place or country;
(c) if it is sold by a name which belongs to another article of food;
(d) if it is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged is concealed or if the article is made to appear better or of greater value than it really is;
(e) if false claims are made for it upon the label or otherwise;
(f) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act;
(g) if the package containing it, or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;
(h) if the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;
(i) if it purports to be, or is represented as being, for special dietary uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses;
(j) if it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder;
(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;"
18. It is strongly urged by Shri Satyen Vaidya, Senior Advocate assisted by Shri Vivek Sharma, Advocate, that taking the complainant's case at its best, even then it has not been proved on record that the sample was adulterated.
::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 1219. I find no merit in this contention. No doubt, the sample has not been proved to be adulterated, but misbranding in itself is a .
separate and distinct offence under the Act wherein the samples need not stricto sensu be adulterated as the petitioner can be convicted even if there is no adulteration, but the sample is misbranded.
20. It is thereafter contended by the learned Senior Counsel for the petitioner that admittedly the petitioner was not the manufacturer, distributor or dealer of 'Gupta Special Agra 'Petha'.
Therefore, in absence of manufacturer, distributor or dealer, the petitioner could not have been convicted. Even this argument is without merit for the simple reason that in case the petitioner was really aggrieved, he could have conveniently filed an application under Section 20-A of the Act for impleading the manufacturer, distributor or dealer etc.
21. It is lastly contended by the learned Senior Counsel for the petitioner that sanction to prosecute the petitioner as given by the CMO is based on non application of mind and that being so, even the prosecution could not have been launched against him. I find no merit even in this submission for the simple reason that sanction in the present case unlike many other cases is not stereo type, rather sanction has been granted after due application of mind wherein the CMO has clearly reported as follows:-
"As per report of Public Analyst and his opinion that the month and year in which the product is manufactured or packed and month and year upto which the product is best for consumption have not been mentioned on the label and hence the sample of 'Gupta Agra Petha' (sweets) is misbranded."
22. Unlike, the other cases, under the Act, the report of the Public Analyst relating to misbranding of the instant kind does not really ::: Downloaded on - 07/04/2018 23:04:20 :::HCHP 13 have much importance or significance and even the averments contained in the complaint and other material on records would be .
sufficient to prove the offence of misbranding. However, in the instant case, even the Public Analyst has held the product to be misbranded.
23. There can be no dispute that in case the food article does not bear any label regarding the date of manufacture or period of uses etc., as contemplated under Rule 32 of the Rules, obviously, that would sidetrack or mislead any ordinary genuine purchaser from believing that the product being sold has no self life or expiry date and, therefore, clearly amounts to mischief under the Act.
24. The learned Courts below have discussed in detail the case of the complainant, the defence of the petitioner, oral and documentary evidence on record and it is only thereafter that the petitioner has been convicted. Such findings in my opinion cannot be said to be irregular, illegal much less perverse so as to call for any interference by this Court.
25. In view of the aforesaid discussion, I find no merit in this revision petition and accordingly the same is dismissed. Bail bonds, if any, furnished by the petitioner are discharged. Pending application, if any, also stands disposed of.
6th April, 2018. (Tarlok Singh Chauhan),
(krt) Judge.
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