Chattisgarh High Court
Vishal vs State Of Madhya Pradesh Now State Of Cg on 8 October, 2010
HIGH COURT OF CHATTISGARH BILASPUR
Criminal Revision NO 1424 of 1998
Vishal
...Petitioners
Versus
State of Madhya Pradesh now State of CG
...Respondents
! Shri T K Tiwari counsel for the Revisioner
^ Shri Avinash K Mishra Panel Lawyer for the State
CORAM: Honble Shri Manindra Mohan Shrivastava J
Dated: 08/10/2010
: Judgement
ORDER
Revision under Section 401 of the Criminal Procedure Code Passed on 08102010 This criminal revision is directed against order dated 20-11-1998 passed by the 2nd Additional Sessions Judge, Durg in Criminal Appeal No.83/1998 confirming the judgment of conviction and order of sentence dated 28-05-1998 passed by the Chief Judicial Magistrate, Durg in Criminal Case No.1653 of 1995, by which, holding the applicant guilty for commission of offence under Section 7(1) (11) of the Food Adulteration Act, 1954 (hereinafter referred to as "the Act") he has been sentenced to undergo rigorous imprisonment for six months and fine of Rs.500/-, in default of payment of fine, rigorous imprisonment for one month under Section 16(1)(A) (1)(11) of the Act. (2) Case of the prosecution is that on 10-01-1995, the Food Inspector along with his team in the Flying Squad arrived at the scene of occurrence where the applicant was found selling milk. It is the case of the prosecution that the applicant is engaged in the business of selling milk and comes from Nagpura and sells milk to residents of Padmanabhpur area of Durg. The applicant was found in possession of 12 liters of mixed Milk of cow and buffalo, 7 liters of milk in one cane and 5 liters of milk in another cane. A notice in Form-VI was given to the applicant vide ExP-2. R. R. Shrivastava, Food Inspector, P.W.1 purchased 750 M.L. of Milk on payment of Rs.6/- vide receipt Ex.P-3. Sample of milk so drawn was kept in three bottles having quantity of 250 M.L. each and at these bottles, label were also pasted vide Ex.P-4 and on each of the bottle, seal containing the signature of local health authority of Durg was also pasted with Code No.DRG/94, Paper Slip No.082356, Serial No.LHA/1756. The samples were sealed and a panchnama of the proceedings of giving notice, purchase of milk, drawing of sample adding preservative and sealing was drawn vide Ex.P.5 and the signature of the witnesses were obtained. The samples drawn along with specimen seal were sent to the Public Analyst for examination vide Ex.P-6 and Ex.P-8. Report of Public Analyst dated 20-02-1995 vide Ex.P- 10 was received, in which, the sample was found adulterated as the Fat and Sold not Fat contents were found below the prescribed standard. The report of the Public Analyst was sent to the Deputy Director and then Deputy Director required the Food Inspector, R. R. Shrivastava, P.W.1 to submit case for sanction vide his memo dated 08-03-1995 (Ex.P-11). Thereafter, sanction for prosecution was sought by the Food Inspector namely R. R. Shrivastava, P.W.1. Vide order dated 19-05-1995, Ex.P-12, the Deputy Director granted sanction for prosecution and authorized namely R. R. Shrivastava, Food Inspector, P.W.1 to file a complaint before the Court. Vide Ex.P-13 dated 25-05-1995, notice was sent to the applicant giving him opportunity/option to give other sample for chemical examination by Public Analyst. The said notice was received by the applicant vide Ex.P-15. (3) On a complaint being filed before the Chief Judicial Magistrate, Durg on 25-05-1995, plea of the accused was recorded on the charges of alleged commission of offence under Section 7(1) of the Act and the applicant abjured guilt. In order to prove the guilt of the applicant, the prosecution examined the concerned Food Inspector R. R. Shrivastava, P.W.1 and Anil Kumar Chawda, P.W.2. Vide judgment of conviction and order of sentence dated 28-05- 1998, the trial Court found the accused-applicant guilty for the alleged commission of offence and sentenced to undergo rigorous imprisonment for six months and fine of Rs.500/-, in default of payment of fine, rigorous imprisonment for one month. Against the aforesaid judgment, the applicant preferred an appeal before the 2nd Additional Sessions Judge, Durg, which was dismissed, confirming the judgment passed by the trial Court.
(4) Assailing the correctness and validity of the judgment and order of sentence and the judgment passed by the appellate Court, learned counsel for the applicant argued that the conviction of the applicant is unsustainable in the eye of law. It has been submitted that there is no proof that the milk purchased from the applicant was mixed milk. It is also argued that the applicant was seriously prejudiced on account of non- compliance of mandatory provisions as contained in Section 13(2) of the Act. The prosecution has failed to prove that such notice was served upon the applicant. He submits that on account of such violation, the conviction is liable to be set aside. It has also been argued that as the independent witness Anil Kumar Chawda, P.W.2 has not supported the case of the prosecution; no conviction could be sustained in the eye of law. Further contention of learned counsel for the applicant is that the sanction granted is not in accordance with law and is mechanical and cannot be said to be sanction in the eye of law, therefore, the prosecution itself is rendered illegal and without the authority of law. Further submission of learned counsel for the applicant is that the report of the Public Analyst shows the contents of fat and solid not fat and even if it is below the prescribed standard, unless the report opines that the milk is injurious to health, and it cannot be said to be adulterated within the meaning of the word "adulterated" defined under the Act. Learned counsel for the applicant in order to support his submission relied upon the judgment in the case of Rama Balawant Hegde vs. Food Inspector, Nippani Municipality, 2004 Cr.L.J., 3605, Dinesh Kumar v. State of M.P., A.I.R. 2005 SC 1480. (5) On the other hand, learned State counsel supported the judgment of conviction and order of sentence and argued that the Food Inspector R. R. Shrivastava, P.W.1 has proved that the applicant was found selling milk which was kept in two canes. The samples were properly drawn in accordance with the prescribed procedure in appropriate quantities and preservative was added to the same and the samples were also sealed and then sent for chemical examination to the Public Analyst along with specimen seal. It is further argued that the Food Inspector R. R. Shrivastava, P.W.1 has proved that those samples were sent to the Public Analyst and his report clearly proved that the fat and solid not fat contents were less than the prescribed standard. Learned State counsel further submits that other prosecution witness A. K. Chawda, P.W.2 has proved the presence of the applicant at the spot and also deposed that milk was purchased from him. Learned State counsel further argued that even if the seizure witness does not fully support the case of the prosecution, the conviction can be sustained on the reliable and trustworthy testimony of Food Inspector R. R. Shrivastava, P.W.1, which inspires confidence. Further contention of learned State counsel is that in the case of milk, once fat and solid not fat contents are found below the prescribed standard, it is covered by the definition of word "adulterated" as defined under the Act, there is no requirement of further report and proof of fact that it is injurious to health. In order to support his submission, learned State counsel has placed reliance in the case of State of M.P. vs. Patiram, 2003(8) AIC 437 (M.P.H.C.), State of Haryana versus Daya Nand, 2004(3) CCSC 1377.
(6) At the time of argument, learned counsel for the applicant placed before the Court the provisions contained in Food Adulteration Rules in order to submit that proper quantity of sample as required under the law was not drawn nor sent for examination, and therefore, the report of the Public Analyst is not in accordance with the rules and conviction cannot be sustained on such a report. (7) On the alleged commission of offence i.e. on 10-01- 1995, under the relevant Rule 22 of Prevention of Food Adulteration Rules, 1955, minimum required quantity of 250 M.L. of milk was sent to the Public Analyst for analysis, therefore, there is no substance in the submission of learned counsel for the applicant that the sample was not drawn as prescribed under the Rules. Submission of learned counsel for the applicant appears to be made on the basis of the amended provisions which were brought into force much after the alleged incident (8) In so far as contention of learned counsel for the applicant that there is violation of Rule 13(2) of the Act, Food Inspector R. R. Shrivastava, P.W.1 has clearly deposed that after receipt of the report, the complaint was filed before the Court and then a notice required under Section 13(2) was sent to the applicant on 25-05-1995 vide Ex.P-13 with postal receipt Ex.P-14 which was received by the applicant vide Ex.P-15, which contains his signature. Submission of learned counsel for the applicant is that no reliance can be placed on the acknowledgment of receipt to prove that the notice was received by the applicant as in the proceedings drawn on 10-01-1995, the applicant had put his thumb impression and not his signature. He also referred to the testimony of the Food Inspector R. R. Shrivastava, P.W.1, who in his cross-examination stated that at the time when the sample was taken by purchasing milk and proceedings were drawn, thumb impressions were given whereas in the acknowledgment Ex.P-15, there is a signature. In the opinion of this Court, in such circumstances does not make the receipt of the notice doubtful because the applicant not only puts his thumb impression but also used to put his signatures. From the order sheets of the trial Court, it is revealed that the applicant had put his signature. At the time of abjuring his guilt on 22-05-1995 also, the applicant had put his signature. In various documents relating to execution of personal bond, the applicant had put his signature. If those signatures are compared with the signature found on the acknowledgment of receipt Ex.P-15, there is nothing to doubt that the signatures are not one and the same. Therefore, I am of the opinion that the prosecution has proved receipt of notice under Section 13(2) of the Act by the applicant.
(9) Other submission of learned counsel for the applicant that there is no proof that the sample of milk taken by way of purchase of milk was mixed milk, and therefore, the standards of fat and solid not fat prescribed for mixed milk could not be made basis for analysis by the Public Analyst, also cannot be accepted. From the testimony of Food Inspector Shri R. R. Shrivastava, P.W.1, it is proved that in the two canes, cow and buffalo milk (mixed milk) was kept. Even in the cross-examination, there is no suggestion that the milk taken was not mixed milk. Food Inspector R. R. Shrivastava, P.W.1 has also proved notice Ex.P-2 and receipt of payment Ex.P-3 as also label Ex.P-4 and Panchnama Ex.P-5. He has also proved the memo sent to Public Analyst vide Ex.P-6 and postal receipt thereof Ex.P-
7. Moreover, learned counsel for the applicant could not demonstrate that even if the milk is taken to be either cow milk or buffalo milk, the analysis report regarding percentage of fat and solid not fat is within the permissible range.
(10) Further submission of learned counsel for the applicant is that as the analysis report does not state that the milk is injurious to health and there is no other evidence to prove that it was injurious to health, the milk cannot be said to be within the meaning of word "adulterated" as defined in Section 2(1)(c) of the Act. I am inclined to accept the submission. Section 2 (1)(C) is not applicable in the present case. In the present case, the provisions applicable are those contained in Section 2(1)(l) of the Act. Therefore, once the report of the public analyst shows that the contents of fat and solid not fat in the milk are below the prescribed standard as laid down in the rules, it is covered by the definition of word "adulterated". Reliance on the decision of the Supreme Court in the case of Dinesh Kumar v. State of M.P., AIR 2005 Supreme Court, 1480, is misplaced as that was a case relating to Besan and not milk. The Supreme Court in that case considered the standards prescribed for Beson under the Rules and that particular reference to provisions contained in Section 2(1)(c) are applicable in such a case. It was in that context that the Court came to the conclusion that in the absence of reference in the report of the public analyst that the Beson was injurious to health, case of adulteration is not made out. Such is not a situation here. In the case of milk, percentage of its constituents has been prescribed in the rules. The contents of fat and solid not fat in the milk were found to be 3.3% and 5.5% respectively. If the same is compared with the specified minimum percentage of contents of fat and solid not fat in the milk, it would be clear that the same is below standard prescribed. Therefore, in view of the provisions contained in Section 2(1) (l) of the Act, the milk is adulterated.
(11) Learned counsel for the applicant has strenuously argued that as the only independent witness of the proceedings of purchase of milk and drawing of samples has not supported the case of the prosecution, the applicant is entitled to benefit of doubt. In the case of Vinod Namdeo vs. State of M.P. decided by this Court on 01-10-2010 in Criminal Appeal No.1607/2000, applying principles laid down in various authorities, it has been laid down that merely because the independent witness has not supported the seizure, the case of the prosecution cannot be thrown, if it is proved by the prosecution that the seizure was made by the seizing authority genuinely, in following words:-
In the case of P.P. Fathima (supra), the Supreme Court examined the entire case of the prosecution and having come to the conclusion that seizure was genuinely made by the seizing authority, held as under:
"7. The learned counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails."
(12) If the testimony of Food Inspector R. R. Shrivastava, P.W.1 is examined, he has proved the fact of giving notice, purchasing milk and drawing of samples. The samples have been proved to be sent to the public analyst and report of public analyst has also been proved before the Court. His testimony that the applicant was found selling milk and it was purchased from him, has remained unshaken in his cross- examination. Even in the cross-examination, he has deposed that the applicant has supplied milk to the Food Inspector R. R. Shrivastava, P.W.1 in the betel shop and the applicant had informed that canes contain mixed milk and the milk was drawn in a pot taken from the Hotel by using the measure kept by the applicant. Though, Anil Kumar Chawda, P.W.2 has not fully supported the case of the prosecution, he has proved the presence of the applicant at the place wherefrom it is alleged to be purchased from the applicant by Food Inspector R. R. Shrivastava, P.W.1. He has also stated that on the date, sample was taken from him, sample of milk was also taken from the applicant. Therefore, the Food Inspector R. R. Shrivastava, P.W.1 has proved beyond all reasonable doubt that the milk was purchased from the applicant. In the case of Rama Balawant Hegde (supra), relied upon by the learned counsel for the applicant, it was found that required minimum quantity of milk was not drawn for the purpose of analysis and no proper reasons were assigned for obtaining sanction for prosecution, coupled with the circumstances that panch witnesses were not examined and it was in those circumstances, the Court came to the conclusion that it would not be safe to convict the accused on the sole testimony of the Investigating Officer. The facts of the said case are clearly distinguishable. In this case, it has been proved that minimum required quantity was drawn for the purposes of sample. The Panch witnesses has proved the presence of the applicant and also that the sample was taken from him. Permission dated 19-05-1995 Ex.P-12 shows that the Deputy Director duly applied its mind to the entire case of the prosecution and that the analyst report indicate that the milk was adulterated. After going through the entire proceedings and documents including notice in Form-VI, receipt of payment, panchnama and memorandum, the authority were satisfied that it is proper to grant sanction. It is not a case of grant of sanction without proper application of mind. Therefore, even if panch witness has not supported, the conviction can be based on the reliable and trustworthy testimony of the Food Inspector R. R. Shrivastava, P.W.1, who has proved that proper procedure as prescribed under the law was followed while taking sample. Similar view has been taken in the case of State of M.P. vs. Patiram (supra).
(13) In the result, I do not find any merit in this revision and the same is therefore dismissed. As the applicant is on bail, his bail bonds are cancelled. The applicant shall surrender before the trial Court and be sent to Jail for undergoing remaining period of sentence.
JUDGE