Madhya Pradesh High Court
Ganpat Singh vs The State Of M.P on 4 March, 2013
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Revision No.424/1998
Ganpat Singh
VERSUS
The State of Madhya Pradesh
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Shri P.K.Mishra, counsel for the applicant.
Shri Ajay Tamrakar, Panel Lawyer for the State/respondent.
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O R D E R
(Passed on the 4th day of March, 2013) The applicant was convicted for the offence punishable under section 7/16 (1) of Prevention of Food Adulteration Act (hereinafter it will be referred to as the 'PF Act') vide judgment dated 4.2.1997 passed by the Additional Chief Judicial Magistrate, Multai, District Betul in criminal case No.557/1985 and sentenced for 6 months' rigorous imprisonment with fine of Rs.1,000/-. In criminal appeal No.19/1997, the learned Additional Sessions Judge, Multai, District Betul vide judgment dated 25.3.1998 dismissed the appeal filed by the applicant in toto. Being aggrieved with the judgments passed by both the Courts below, the applicant has preferred the present revision.
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Criminal Revision No.424 of 1998
2. The prosecution's case, in short, is that, the Food Inspector Shri K.S.Pancholi (P.W.1) was posted to look after the adulteration cases in the entire Betul district. On 23.5.1985, at about 9.30 a.m., he was sitting at Multai Check-post No.3 at Betul. He was accompanied by other Food Inspectors. The applicant was found coming towards the township of Betul, having a can containing 5 liters of milk. On enquiry, he told that it was a cow milk. The Food Inspector made the milk homogeneous and a sample of 750 ml of cow milk was taken. Three parts of were made up of that sample and all the parts were duly sealed. Slip of local health authority was also affixed on each of the part. One of the part of sample was sent to the public analyst and remaining two samples were deposited with the local health authority. Various memos were prepared relating to the procedure of sampling. The public analyst by a report, Ex.P/ 11 dated 6.6.1985 informed that the percentage of solid fat and solid not fat were too low in the sample and therefore, sample was adulterated. After taking prosecution sanction, a complaint was filed before the trial Court.
3. The applicant abjured his guilt. He did not take any specific plea in the matter. He has simply stated that he was falsely implicated in the matter. However, no defence evidence was adduced.
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Criminal Revision No.424 of 1998
4. The learned Additional Chief Judicial Magistrate, Multai, after considering the prosecution's evidence, convicted and sentenced the applicant as mentioned above. The appeal filed by the applicant was also dismissed in toto.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant submits that looking to the conduct of the Food Inspector, it appears that he was not sincere in taking the sample of cow milk. Seizure was not proved beyond doubt. No notice under section 13 (2) of the PF Act was given to the applicant and therefore, he was deprived with his valuable right of getting the sample examined from the Central Food Laboratory. In support of his contention, he has placed his reliance on the judgment passed by the single Bench of this Court in case of "State of M.P. Vs. Bhajan Lal", [ILR (2012) MP 2199] and therefore, it is prayed that the applicant be acquitted.
7. On the other hand, the learned Panel Lawyer has submitted that the sample was taken in an appropriate manner and it was found that the milk was adulterated.
8. It is a general rule that concurrent findings given by both the Courts below, relating to conviction, shall not be disturbed, without any cognate reason. If the entire evidence adduced against the applicant is perused then, it is painful to see that the Food Inspector did not take care to make
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Criminal Revision No.424 of 1998 seizure memo according to the law. In seizure memo, Ex.P/ 7, the Food Inspector did not mention the particulars of the witness below the signature of the witness. It is expected from the Food Inspector that two witnesses would be taken for preparation of such a memo but, the Food Inspector Shri Pancholi did not try to take second witness for the seizure. He did not mention any reason as to why the second witness was not taken. It is pertinent to note that Gokul Prasad (P.W.2) has refused to say about seizure. He has stated that as told by the Food Inspector, he appended his signature on the document, Ex.P/7. The witness Gokul Prasad was not declared hostile and therefore, his testimony is binding upon the prosecution. It was stated by the Food Inspector Shri Pancholi that he was accompanied by other Food Inspectors and therefore, he could take other Food Inspectors as witnesses, if any witness of general public was not available. He was sitting on the check-post and therefore, he could get the incharge of that check-post as a witness. Looking to the lapses done by the Food Inspector, it is highly doubtful that a sample was taken from the applicant. Possibility cannot be ruled out that sample taken from one milk man was used against so many persons by distribution. A person who wanted to sale milk in the city must have at least 15-20 liters of milk, whereas it is alleged that the applicant had
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Criminal Revision No.424 of 1998 only 5 liters milk. Under such circumstances, the testimony of the Food Inspector was not at all believable. It is not proved beyond doubt that the applicant was selling milk or sample was properly taken from the applicant.
9. It is strange that no notice under section 13 (2) of the PF Act was given to the applicant. It is true that sample was taken on 23.5.1985 and after filing of the complaint, the applicant was present before the Court on 29.8.1985 i.e. within 6 months from the date of sample but, if the order- sheets of the trial Court are perused then, it would be apparent that counsel for the applicant applied for bail on 29.8.1985, thereafter, no counsel appeared for the applicant in the Court on 3.10.1985 and on 21.11.1985. Shri Dharmadhikari, Advocate appeared for the applicant on 30.1.1986 for the first time when, charges were framed. Under such circumstances, there was no legal advice available to the applicant, so that he could apply for analysis of second part of sample by the Central Food Laboratory. It was the duty of the Food Inspector and local health authority to comply the provisions of section 13 (2) of the PF Act. None compliance of those provisions is fatal in nature. As held by the single Bench of this Court in case of Bhajan Lal (supra), it is apparent that provisions of section 13 (2) of the PF Act
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Criminal Revision No.424 of 1998 were not complied and therefore, the accused could not be convicted for the offence of adulteration.
10. Under such circumstances, since the complainant Food Inspector Shri Pancholi neither annexed the copy of the notice under section 13 (2) of the PF Act with the complaint, nor shown any reason as to why he did not comply such provisions then, it appears that it was carelessness of the Food Inspector.
11. On the basis of the aforesaid discussion, it is not proved beyond doubt that the sample was taken from the applicant and a valuable right under section 13 (2) of the PF Act, available to the applicant, was denied and therefore, the applicant could not be convicted for the offence punishable under section 7/16 (1) of the PF Act. Both the Courts below have committed an error in convicting the applicant and since it is an error of law, it is the duty of this Court to interfere in the judgments passed by both the Courts below, by way of a revision.
12. Consequently, the revision filed by the applicant is hereby allowed. The conviction as well as the sentence directed by the trial Court against the applicant for offence punishable under section 7/16 (1) of the Prevention of Food Adulteration Act is hereby set aside. The applicant is acquitted from the aforesaid charges. He would be entitled
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Criminal Revision No.424 of 1998 to get the fine amount back, if he has deposited the same before the trial Court.
13. At present, the applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
14. Copy of the order be sent to the trial Court as well as to the appellate Court along with their records for information and compliance.
(N.K.GUPTA) JUDGE 04/03/2013 Pushpendra