Allahabad High Court
Bachau vs State Of U.P. And Anr. on 7 July, 2025
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:106330 Court No. - 64 Case :- CRIMINAL REVISION No. - 1976 of 2019 Revisionist :- Bachau Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Rakesh Chandra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised. Heard Sri Rakesh Chandra, learned counsel for the revisionist, Sri Ajay Singh, learned AGA-I for the State and perused the material on record.
2. The present revision under Sections 397/401 Cr.P.C. has been preferred by the revisionist-Bachau against the judgement and order dated 29.08.2016 passed by Chief Judicial Magistrate, Sonebhadra in Complaint Case No.3534 of 2002 (State Vs. Bachau) by which the revisionist-accused has been convicted and sentenced for offences under Section 7/16(i)(a)(i) Prevention of Food Adulteration Act, 1954 for six months simple imprisonment and a fine of Rs.500/- and in default of payment of fine to 15 days further simple imprisonment and further for offence under Section 7/16(i)(a)(ii) Prevention of Food Adulteration Act for six months simple imprisonment and a fine of Rs.1000/- and in default of payment of fine to 15 days further simple imprisonment. The sentences have been ordered to run concurrently. Further an appeal against the said order being Criminal Appeal No.29 of 2008 (Bachau Vs. State of U.P. and another) has been dismissed vide judgement and order dated 2.5.2019 passed by Additional Sessions Judge, Court No.1, Sonebhadra and the judgement and order of the trial court concerned dated 29.8.2016 has been affirmed.
3. The prosecution case is that the accused-revisionist was running a shop in village Belkhuri through which he was selling oil, salt, biscuits, tea, vanaspati etc. On having suspicion of vanaspati being adulterated, the Food Inspector Sandeep Kumar Chaurasia purchased 3 packets of 500 ml. of vanaspati of Jhoola Brand which were for sale. Then form 6 was prepared. A part of the said material was then packed and sealed and forwarded to the Public Analyst, Lucknow for testing. The report of the Public Analyst dated 9.9.2002 states that moisture in the material is 0.32% which is in excess (as it shall not exceed 0.25%) and further that in the Baudouin test for the presence of til oil and vitamin 'A' it was negative. The sample was thus was considered to be adulterated. A report was sent to the Chief Medical Officer concerned by the Food Inspector on which vide order dated 30.10.2002, sanction was granted by the C.M.O concerned. Intimation about the same was sent through UPC to Jhunjhunwala Vanaspati Ltd., Varanasi. The postal receipt is Exb. Ka-10 to the records. The material was sent to the Public Analyst, Lucknow through postal receipt no.4297, dated 29.7.2022 and the documents were sent through registered post having receipt no.316 dated 29.7.2002. The said receipts are Exb. Ka-4 and Ka-5 respectively to the records. The report of the Public Analyst is Exb. Ka-6 to the records.
4. A complaint dated 30.10.2002 was thus filed against Bachau and the manufacturer Jhunjhunwala Vanaspati for offences under Section 7/16 of the Prevention of Food Adulteration Act, 1954. During the pendency of the complaint, vide order dated 28.10.2004 passed by the Chief Judicial Magistrate, Sonebhadra, M/s Jhunjhunwala Vanaspati Ltd. was discharged of the offence and their application for discharge being paper no.5-B, dated 13.8.2004 was allowed. Thus the sole accused before the trial court was the revisionist.
5. During trial, Food Inspector Sandeep Kumar Chaurasia was only examined as P.W.1 as the sole witness under Section 244 Cr.P.C. who reiterates the prosecution version and further submits that after the said complaint was filed, an information under Section 13(2) of the Act was given to the local Health Officer/C.M.O.
6. In his statement under Section 246 Cr.P.C. in the cross-examination, he states that information about lodging of the complaint under Section 13(2) of the Act was given to the local Health Officer/C.M.O. He further states that he cannot tell as to whether the same is in compliance of Section 13(2) of the Act or not.
7. The statement of the accused under Section 313 Cr.P.C. was recorded and then the trial court convicted him and sentenced him as aforesaid.
8. The charges were framed against the accused-revisionist only vide order dated 25.10.2007 by the C.J.M., Sonebhadra under Section 7 read with 16 of the Food Adulteration Act.
9. An appeal was preferred against the said judgement and order of conviction but the same was also dismissed vide judgement and order dated 2.5.2019 by the appellate court and the judgement and order dated 29.08.2016 of the trial court was affirmed. The present revision is thus before the Court.
10. The trial court records have been received which are tagged with the file of the record which have also been perused along with records of the present revision.
11. Learned counsel for the revisionist argued that the revisionist has been falsely implicated in the present case. It is submitted that the revisionist and M/S Jhunjhunwala Vanaspati Ltd. were made as accused in the complaint as Jhunjhunwala Vanaspati Ltd. was the manufacturer of the said material but it was discharged by the trial court concerned vide it's order dated 29.10.2004 which became final. It is further submitted that before the trial court only three postal receipts have been placed and exibited which are as under:-
(i). Parcel receipt no.4297 dated 29.07.2002 addressed to the Public Analyst, Govt. of U.P. Lucknow marked as Exb. Ka-4 to the records.
(ii). Registered post receipt no.0316, dated 29.07.2002 addressed to the Public Analyst, Govt. of U.P., Lucknow marked as Exb. Ka-5 to the records.
(iii). UPC receipt dated 30.10.2002 addressed to Jhunjhunwala Vanaspati Ltd., Varanasi, marked as Exb. K-10 to the records.
12. It is submitted that there is nothing else on record to show that any information and compliance regarding the present incident has been given to the revisionist which is mandatory under Section 13(2) of the Food Adulteration Act. Even P.W.1, the Food Inspector who is the sole witness examined in the matter has in his statement before the Court under Section 244 Cr.P.C. and 246 Cr.P.C. stated that information under Section 13(2) of the Act was given to the local Health Officer/C.M.O and states of the said three postal receipts to the said persons but does not state anywhere of sending any report of the Public Analyst along with the report of the C.M.O regarding compliance of Section 13(2) of the Act to the revisionist. It is submitted that since there is no compliance of Section 13(2) of the Act, valuable rights of the revisionist of getting the sample retested by the Central Food Laboratory is defeated. It is further submitted that the said question was raised before the appellate court but the appellate court in reference gave a finding that it was for the revisionist to move an application at the appropriate stage before the trial court concerned for sending the sample to the Central Food Laboratory for analysis which has not been done. Thus there was no occasion to raise the said question. The said approach is totally illegal and against law. Section 13(2) of the Act specifically provides that information about the prosecution has to be sent to the accused. In the present case the position which emerges which can be said to be an admitted position is that no intimation under Section 13(2) of the Act has been sent to the revisionist by the complainant/Food Inspector concerned. Thus the present revision deserves to be allowed and the judgement and order of the trial court along with judgement and order of the appellate court deserves to be set-aside and the revisionist deserves to be acquitted.
13. Per contra, learned counsel for the State opposed the present revision but could not dispute the fact that no notice under section 13(2) of the Act has been sent to the revisionist. The information was sent to the manufacturer but the said manufacturer has been discharged by the trial court. Thus the liability of the complainant/Food Inspector under Section 13(2), gets absolved as notice has been sent to manufacturer.
14. After having heard learned counsel for the parties and perusing the record, it is evident that the revisionist and the manufacturer were made accused in the complaint but the manufacturer was discharged by the trial court vide order dated 28.10.2004. The said order became final and the manufacturer was not made as accused in the present proceeding. The intimation about the proceedings were communicated to the manufacturer through post under UPC but no intimation of the prosecution was sent to the revisionist. The revisionist was not called upon to exercise his right under Section 13(2) of the Act for getting the sample retested by the Central Food Laboratory. This is a fact which is even stated by the sole witness P.W.1 who is the Food Inspector. Even his evidence does not in any manner show sending of any intimation under Section 13(2) of the Act to the revisionist. The postal receipt also do not show that any post was sent to the revisionist. The approach of the appellate court that it was for the revisionist to make an application before the trial court after commencement of the trial for getting the sample retested by the Central Food Laboratory is against the spirit of the Act since the revisionist has not been served with any notice under Section 13(2) of the Act, his valuable right of getting the sample retested by the Central Food Laboratory gets defeated. The prosecution thus fails.
15. The present revision is allowed. The impugned judgement and order dated 29.08.2016 passed by Chief Judicial Magistrate, Sonebhadra and the impugned judgement and order dated 2.5.2019 passed by Additional Sessions Judge, Court No.1, Sonebhadra in the aforesaid case are hereby set aside.
16. The revisionist-Bachau is acquitted of the charge levelled against him. The revisionist is on bail. His bail bond is cancelled and sureties discharged.
17. Office is directed to transmit the copy of this judgement along with the trial court records to the concerned trial court forthwith for its compliance and necessary action.
18. The file be consigned to records.
(Samit Gopal, J.) Order Date :- 7.7.2025 Gaurav Kuls