Rajasthan High Court - Jaipur
Ghewar Chand vs State Of Rajasthan on 22 November, 1996
Equivalent citations: 1997(1)WLC342, 1996(2)WLN432
JUDGMENT Amaresh Ku. Singh, J.
1. Heard learned Counsel for the petitioner and the learned Public Prosecutor for the non-petitioner.
2. In Criminal Case No. 7/78 State v. Thawardas and Ors. the petitioner was tried by the learned Chief Judicial Magistrate, Jodhpur on charge under Section 7 read with 16 of the Prevention of the Food Adulteration Act. After trial he was convicted and sentenced to under-go rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/- and to further under-go rigorous imprisonment for 2 months for default in payment of fine.
3. Feeling aggrieved by the conviction as well as sentence passed by the learned Chief Judicial Magistrate, Jodhpur the petitioner filed an appeal which was decided by the learned Additional Sessions Judge, No. 1, Jodhpur vide judgment dated 2nd February, 1988. The learned Additional Sessions Judge No. 1, Jodhpur dismissed the appeal and confirmed the order passed by the learned Chief Judicial Magistrate. In the above mentioned circumstances the petitioner has filed this revision petition with a prayer that conviction as well as sentence passed by the two Courts be set aside and he be acquitted of the charge under Section 7 read with 16 of the Prevention of Food Adulteration Act.
4. The facts of the case so far they are relevant for the disposal of this petition may be summarised as below According to prosecution on 23rd April, 1977 at about 12.40 P.M. The Food Inspector went to the shop of Thawardas with a view to take samples for the purpose of chemical analysis. Thawardas used to sell coconut oil in his shop. In the presence of Mortbirs Food Inspector purchased the sample from Thawardas. Sample was placed in 3 separate bottles which were sealed then and there. One sample was sent to Public Analyst. The report of chemical analysis was received on 23rd May, 1977 and it revealed that the sample was of adulterated coconut oil.
5. On 1st February, 1978 a complaint was filed in the Court of learned Chief Judicial Magistrate, Jodhpur against (1) Thawardas, (2) Devji Mal, (3) M/s Vijay Kumar Devji Mal Deewano Ki Gali, Jodhpur, (4) Ghewar Chand, (5) Dhanpat Raj (6) M/s Vinod Kumar & Bros, Deewano Ki Haweli, Jodhpur.
6. Purshottam Narain PW-1 who had taken sample from the shop of Thawardas was examined before framing of the charge. He supported the prosecution story relating to taking of sample from the shop of Thawardas. During his examination-in-chief Purshottam Narain (PW-1), deposed that at the time of selling the sample to him Thawardas had told him that sealed tin from which sample was given had been purchased by him from M/s Vinod Kumar & Bros., Ghaas Mandi, Deewano Ki Haweli, Jodhpur vide Bill No. 1675 dated 23rd April, 1977. Purshottam Narain (PW-1) further added that the original bill was shown to him and he prepared the copy thereafter marked as Ex.P-6. In his statement Purshottam Narain (PW-1) further added that he submitted a complaint against Thawardas, Devji Mal, M/s Vijay Kumar Devji Mal, Ghawar Chand, Dhanpat Raj and M/s Vinod Kumar & Bros. During his cross- examination Purshottam Narain (PW-1) stated that the tin from which sample was sold to him was in sealed condition and seal had been broken for giving him the sample of the oil and that there were 2 tins of coconut oil in the shop of Thawardas when the sample was sold to him.
7. On the basis of the statement of Purshottam Narain (PW-1) learned Chief Judicial Magistrate framed charge against Ghewar Chand, Devji Mal, Thawardas and Dhanpatraj. The accused pleaded not guilty to the charge framed against them. The trial was conducted Purshottam Narain (PW-1) was re-examined. Prosecution examined Deven Das PW-2 and Tejmal PW-3 in support of the prosecution story. The accused persons were examined under Section 313 of the Criminal Procedure Code and Suresh Chand Mathur DW-1 was examined in defence.
8. After hearing both the parties the learned Chief Judicial Magistrate came to the conclusion that the charge was not proved beyond reasonable doubt against Thawardas because he had purchased the seal tin of coconut oil from the shop of Ghewar Chand and that tin was open in presence of the Food Inspector for the purpose of selling sample to him and, therefore, Thawardas was not responsible for the adulteration. The learned Chief Judicial Magistrate further held that the prosecution had failed to prove that the firm M/s Vinod Kumar & Bros., was a partnership firm and, therefore, Dhanpat Raj could not be responsible for adulteration and regarding Ghewar Chand the learned Chief Judicial Magistrate came to the conclusion that there was ample evidence on record to show that he sold goods at the shop of M/s Vinod Kumar & Bros. He, therefore, convicted the petitioner under Section 7/16 of the Prevention of Food Adulteration Act.
9. It is very clear from the facts mentioned above that the petitioner did not sell any food article to Food Inspector Purshottam Narain (PW-1). However he has been convicted and sentenced because he sits at the shop of M/s Vinod Kumar & Bros., and 2 tins of cocount oil are alleged to have been sold by M/s Vinod Kumar & Bros., to Thawardas vide Bill Ex.P-6.
10. The learned Counsel for the petitioner has submitted that Ex.P-6 is an uncertified copy of the abstract copy of the bill which is alleged to have been issued by the firm M/s Vinod Kumar & Bros. It is further submitted by him that there is no evidence to show that the tin from which sample was sold to the Food Inspector Purshottam Narain (PW-1) was the same tin as was sold by the firm M/s Vinod Kumar & Bros., and therefore, the possibility that sample was given from some other tin for analysis cannot be ruled out and, therefore, the offence under Section 7/16 of the Prevention of Food Adulteration Act cannot be said to have been proved against the petitioner. The learned Public Prosecutor on the other hand has supported the judgments of the lower Courts.
11. I have carefully considered the evidence, the reasons given by the 2 lower Courts for convicting the petitioner and the submissions made on behalf of the parties during arguments. In a criminal case the burden to prove the accusation is always on the prosecution. And the accusation must be proved beyond all reasonable doubt. These two principles are applicable to all criminal cases irrespective of the fact whether mansrea is or is not an essential ingredient of the offence. In the case of direct evidence the prosecution must produce witnesses who are trustworthy and in the case of circumstantial evidence the prosecution must prove those circumstances from which the inference of the guilt of the accused can be inferred beyond reasonable doubt. In this case two important infirmities appear to have been ignored by the Courts below. The first infirmity was non-production of the original bill during evidence and permitting the prosecution to produce an uncompared, uncertified abstract copy of the bill (Ex.P-6) in evidence. Ex.P-6 is neither the original bill nor a certified copy of the original bill. This document cannot be read in evidence in view of Section 64 of the Indian Evidence Act which provides that documents must be proved by primary evidence except in the cases hereinafter mentioned. There is nothing to show that the prosecution proved its entitlement under Section 65 of the Indian Evidence Act to produce Ex.P-6 in evidence. In the absence of circumstance justifying production of secondary evidence, Ex.P-6 cannot be read in evidence. It would be useful to refer to the provisions of Section 136 of the Evidence Act which read as under:
SECTION 136 : When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if prove, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last- mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
ILLUSTRATIONS
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Section 32.
The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document; said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C and D is proved, or may require proof of B, C and D before permitting proof of A.
12. A bare perusal of this Section shows that when either party proposes to give evidence of any fact, the Judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise and if the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking and if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Section 136 of the Evidence Act, therefore, imposes duty on the Court to apply his mind to the admissibility of the evidence when the evidence is sought to be produced in the Court. The reason being that no Court can base its decision on any evidence which is not admissible. It would be further useful to refer to Section 165 of the Evidence Act which in very clear words provides that the Judge shall not dispense with primary evidence of any, document, except in the cases herein before excepted. First proviso given below Section 165 of the Evidence Act makes it clear that the judgment must be based upon facts declared by the Evidence Act to be relevant, and duly proved. In view of Sections 136 and 165 of the Evidence Act, there can be no doubt in it that before a decision can be based upon a fact, such fact must be shown to be relevant as well as duly proved and the evidence must be such as is relevant and admissible. The learned Chief Judicial Magistrate, Jodhpur and the learned Additional Sessions Judge No. 1, Jodhpur have not stated in the judgments why they considered Ex.P.-6 which is an uncertified abstract copy of the bill alleged to have been issued by M/s Vinod Kumar & Bros., to be relevant, admissible and duly proved. For reasons mentioned above Ex.P-6 cannot be used against the petitioner for the simple reason that it is neither admissible nor duly proved.
13. If Ex.P-6 is taken out of consideration there remains no other evidence worth the name to prove that the firm M/s Vinod Kumar & Bros, sold 2 tins of cocount oil to Thawardas. The statement of Thawardas made to the Food Inspector at the time of selling sample to him is not a substantive piece of evidence. And, therefore, it cannot be used for the purpose of convicting the petitioner. It is pertinent to note that Thawardas was impleaded as an accused and he was tried for. the charge under Section 7/16 of the Prevention of Food Adulteration Act. The prosecution did not produce Thawardas as a witness. Therefore, the statement made by Thawardas to the Food Inspector is neither relevant nor admissible and cannot be used for the purpose of holding that Thawardas purchased 2 tins of cocount oil from M/s Vinod Kumar & Bros.
14. Devan Das PW-2 and Tejmal PW-3 have nowhere stated that in their presence M/s Vinod Kumar & Bros, sold 2 tins of cocount oil to Thawardas. As such there is no evidence worth the name to prove that the petitioner sold 2 tins of cocount oil to Thawardas.
15. In a case of this kind the prosecution must prove that the goods which had been purchased by the seller of sample from some other person remained intact from the time the delivery was received to the point the sample was sold. In this case the prosecution has not proved that the tin from which sample had been taken by the Food Inspector was the same tin which had been sold by M/s Vinod Kumar & Bros.
16. I, therefore have no hesitation is saying that the learned Chief Judicial Magistrate, Jodhpur was not justified in convicting and sentencing the accused under Section 7/16 of the Prevention of Food Adulteration Act, as there was no evidence worth the name to connect the petitioner with the alleged crime and the learned Additional District and Sessions Judge No. 1, Jodhpur was also not justified in upholding the conviction and the sentence imposed by the learned Chief Judicial Magistrate on the petitioner.
17. Consequently this revision petition deserves to be allowed and is hereby allowed. Conviction of the petitioner under Section 7/16 of the Prevention of Food Adulteration Act, and the sentence imposed on him for the aforesaid offence are hereby set aside. The judgment dated 2nd & 3rd February, 1988 delivered by the learned Additional District and Sessions Judge No. 1, Jodhpur and the judgment dated 23rd November, 1984 delivered by the learned Chief Judicial Magistrate, Jodhpur are hereby set aside and the petitioner is hereby acquitted of the offence punishable under Section 7/16 of the Prevention of Food Adulteration Act. He is on bail, his bail bonds are hereby cancelled, he need not surrender.