Anil Kumar vs State of Uttaranchal

Prafulla C. Pant, J.—This revision is directed against the judgment and order dated 20th of October 2001, passed by the Sessions Judge, Almora, in Criminal Appeal No. 08 of 1998, whereby said court has affirmed the conviction and sentence recorded against the revisionist Anil Kumar by the trial court (Chief Judicial Magistrate, Almora), in Criminal Case No. 855 of 1994, relating to offence punishable u/s 7/16 of the Prevention of Food Adulteration Act, 1954 (for short P.F.A. Act).

Heard learned Counsel for the parties and perused the lower court record.

Brief facts of the case are that complainant P.W. 1 Hem Chandra Joshi, Food Inspector, Nagar Palika Parishad, Almora, took sample of ''BESAN KA LADDU'' from the shop of revisionist Anil Kumar, situated in Thana Bazar, Almora, on 24.02.1994. He got served notice in Form No. VI (Ext. A -1) to the revisionist before taking sample in the presence of witness Mohan Singh. The Food Inspector purchased 600 gms. of ''BESAN KA LADDU'' on payment of Rs. 30/- to the revisionist. After making the purchase, he filled the ''Laddu'' in containers in three equal parts and got the containers sealed. On each of the three containers, he marked over the label Code No. A.L.M. 28 -/94. He obtained the signatures of the revisionist on the label in the manner proscribed under the rules. Thereafter, he sent From No. VII (Ext. A -3), and the sample to the Public Analyst, Lucknow, for analysis. The Public Analyst vide his report No. 3683, dated 29.04.1994 (Ext. A -6), found that the sample contained ''KHESARI'' (Lathirus Staivas), use of which was prohibited in the food articles. On receiving said report the Food Inspector obtained sanction from the Local Health Authority, where after, the criminal complaint was filed before the Magistrate.

The Chief Judicial Magistrate, Almora, summoned the accused. After recording of evidence u/s 244 of Cr.P.C. of P.W. 1 Hem Chandra Joshi, the trial court framed charge of offence punishable u/s 7/16 of P.F.A. Act, to which the accused (present revisionist) pleaded not guilty and claimed to be tried. There after, P.W. 1 Hem Chandra Joshi was further examined u/s 246 of Cr.P.C. Also, P.W. 2 Dhyan Singh Bisht and P.W. 3 Pan Singh Bora were examined. The oral and documentary evidence was put to the accused, in reply to which he admitted that the sample was taken, but as to the rest of the evidence he stated that he does not want to say anything except that the witnesses are departmental witnesses. No evidence in defence was given. After hearing the parties, the trial court found the accused guilty of charge of offence punishable u/s 7/16 of P.F.A. Act. After hearing on sentence, the trial court sentenced the revisionist to rigorous imprisonment for a period of six months, and also directed him to pay fine of Rs. 1,000/-, in default of payment of fine the convict was directed to undergo further imprisonment for a period of 11/2 month. Against said order dated 30th of July 1998, passed by Chief Judicial Magistrate, Almora, in Criminal Case No. 855 of 1994, the convict preferred Criminal Appeal No. 08 of 1998, before the Sessions Judge, Almora. The Sessions Judge, Almora, after hearing the parties vide impugned judgment and order dated 20th of October 2001, passed in said appeal, affirmed the conviction and sentence recorded by the trial court, and dismissed the appeal. Hence, this revision.

Learned Counsel for the revisionist submitted that the Code number mentioned in the report of Public Analyst is mentioned as A.L.M./28/I-94, but in the statement of P.W. 1 Hem Chandra Joshi, the code number marked on the label was A.L.M. 28-/94. On comparing the statement of the witness and the report of Public Analyst, in substance this Court does not find any change in the Code number. The ''/'' appears to have been read as ''I'' by the Public Analyst. This does not create any doubt as to the identity of the sample sent for analysis by the complainant Food Inspector.

The next submission advanced on behalf of the revisionist is that the test conducted by the Public Analyst are microscopic. I failed to understand from where said fact has been gathered that the analysis was microscopic. The report (Ext. A -6) of the Public Analyst clearly shows that the sample was analyzed on the basis of the chemical examination. It is clearly mentioned in the report that sample passed the Coaltar test. As to the Boric Acid test it was found positive. The Butrorefracto meter measurement was found 54 degrees. Liquidation point was found 33 degree centigrade. For the Bodine test the sample gave positive report. It is only on the point of the B.O.A.A. test, which is done for the presence of the prohibited food articles, in which it was found that the sample contained ''KHESARI'' (Lathirus Staivas), use of which was prohibited under the law in the food items. As such, this Court does not find any force in the argument advanced on behalf of the revisionist that the sample was not chemically examined.

Sanction given by the Local Health Authority is proved by P.W. 3 Pan Singh Bora. P.W. 2 Dhyan Singh Bisht has corroborated the testimony of P.W. 1 Hem Chandra Joshi that in his presence sample was taken from the shop of the revisionist on 24.02.1994, at 11:30 A.M. The oral testimony of P.W. 1 Hem Chandra Joshi and P.W. 2 Dhyan Singh Bisht is corroborated from the copy of the Form No. VI (Ext. A -1), receipt (Ext. A -2), Copy of Form No. VII (Ext. A -3), and the receipts of sending the food articles and the Form No. 7 to the Public Analyst, which are Ext. A -4 and Ext. A -5, on the record. The accused himself has admitted in his statement u/s 313 of Cr.P.C. that sample was taken from him. It is proved on the record that the purchased sample was found adulterated.

Therefore, the trial court has committed no error of law in recording conviction of accused / revisionist Anil Kumar, and sentencing him to rigorous imprisonment for a period of six months, and also directing him to pay fine of Rs. 1,000/-. The appellate court has also committed no error of law in affirming the conviction and sentence recorded by the trial court. As such, this revision is liable to be dismissed so far as it relates to conviction of the revisionist u/s 7/16 of the P.F.A. Act, 1954. But on the point of sentence, this Court is of the view that though the trial court and appellate court could not have passed a sentence less than the minimum prescribed, this Court in its revisional jurisdiction u/s 397/401 of Cr.P.C. (read with Section 482 of Cr.P.C.), relying on the case of Khem Chand Vs. State of Himachal Pradesh, , can reduce the sentence of imprisonment to the period already undergone without disturbing the sentence of fine. It has been found on the record that the revisionist was taken into custody on the date the impugned order was passed by the appellate court, and released on bail only after the bail order was passed in this revision. Apart from this, it is submitted on behalf of the revisionist that the ''KHESARI'' which was found in the sample might have been due to the fact that the ''BESAN'' purchased by the revisionist for preparing ''LADDU'' was itself an adulterated one. Hence, the revision is dismissed on the point of conviction, but the sentence is reduced to imprisonment already undergone, without disturbing sentence of fine. Lower court record be sent back.