Bijleshwari vs State Of U.P.

This criminal revision under Section 401 Cr.P.C. has been filed against judgment and order dated 8.10.2002, passed by Additional District and Sessions Judge/ Fast Track (Drutgami) Court, Gonda in Criminal Appeal No.59 of 2001 dismissing the appeal of the revisionist and upholding the order dated 17.07.2001 passed by Chief Judicial Magistrate - II, Gonda in Case No.1209/2001/94 whereby the revisionist was convicted under Section 7/16 of the Food Adulteration Act.

Brief facts relevant for disposal of this revision are that on 25.09.1990, at about 11.00 AM, Food Inspector Akhileshwar Tewari has purchased 660 ml. buffalo milk from revisionist Bijleshwari after showing his identity and giving its cost Rs.3 for the purpose of testing of adulteration in milk. After completing the formalities, the said milk was sent for examination of the chemical analysts and in respect of the same, the report was found sub-standered and was short of fat to the tune of 48 % and milk silds in fat was found about 49 %. Accordingly, in this regard complaint was filed in the court of competent jurisdiction and after completing the trial, the learned Chief Judicial Magistrate, Gonda came to the conclusion that the prosecution has succeeded to prove guilt of the accused person and he was convicted under Section 7/16 of the Food Adulteration Act and sentenced to undergo one year simple imprisonment and a fine of Rs.1000/- and in default of payment of fine, further sentence of three months'' simple imprisonment was awarded.

Aggrieved by the said order, an appeal being Criminal Appeal No.59 of 2001 was filed, which was dismissed and order of the Chief Judicial Magistrate, Gonda dated 17.07.2001 was confirmed vide order dated 08.10.2002. Hence, this revision has been filed.

Heard learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.

The learned counsel for the revisionist has stated that it was the duty of the prosecution to prove that the revisionist was doing the business of selling milk and said milk was stored for the same purpose. It is further argued that the report of the chemical analyst was not sent at the correct address of the revisionist, as such, the same could not be received by the revisionist, consequently, the revisionist was deprived of his valuable rights under Section 13 of the Prevention of Food Adulteration Act for obtaining the report of Director, Central Food Laboratory. It is further argued that the alleged sample taken by the Food Inspector was not for sale and the quality of milk varies from animal to animal and also from season to season and if any fatty substance was found less, it was beyond the control of the revisionist.

Whereas, the learned A.G.A. has argued that after considering the entire material on record, the learned Trial Court has recorded its finding to the effect that the prosecution has succeeded to prove guilt of the accused, as such, he has been convicted under Section 7/16 of the Food Adulteration Act and the Appellate Court has also found that there is no illegality in the order of the Trial Court, so the appeal has also been dismissed. So far as the findings of fact recorded by the Trial Court as affirmed by the First Appellate Court, at this revisional stage, is concerned, the same cannot be challenged and the revisionist, at this stage, can only challenge the illegality in the order either of the Trial Court or of the Appellate Court.

In support of his arguments, learned counsel for the revisionist has placed reliance on the judgment passed by the Single Bench of this Court reported in LCRR, page 99; Ram Kumar vs. State of U.P. wherein Hon''ble the single judge has taken a lenient view and has reduced the period of sentence, which was already undergone. However, with most respect, this Court did not agree with this case law because of the fact that while hearing a revision under Section 397/401 Cr.P.C., this Court cannot sit in appeal and cannot overlook the statutory provision in this regard. Section 16 of the Prevention of the Food Adulteration Act, 1954 did not provides punishment of less than six months in the matter, so to my view, sitting in revision, this Court cannot act beyond the statutory provision and can not reduce the sentence to already undergone.

From perusal of record of the Trial Court, it is evident that when the Food Inspector had taken the sample of milk, the revisionist had refused to sign on the said receipt and this fact has been mentioned in Ext. Ka(1). The learned Trial Court had taken a view that the report of the analyst was sent to the revisionist by registered post and receipt of the said registered post is also on record, so the contention of the learned counsel for the revisionist that the milk was not sold by him and the report of analyst had not been sent to him, has got no force. So far as third contention of learned counsel for the revisionist is concerned, the milk was not for sale is not born out from the record. At no stage of the trial, the revisionist had taken this plea that the said milk, which was taken by the Food Inspect, was not for sale, so, at this revisional stage, this contention of the learned counsel for the revisionist cannot be accepted. From perusal of the record, it is also evident that the Trial Court had taken into account all the facts and circumstance of the case and passed very well and reasoned order. All the documents filed before the Trial Court were well proved by the evidence. The Appellate Court had taken into account all the arguments raised by the learned counsel for the appellant and has rightly rejected the appeal. So, at this revisional stage, to my view, there appears no justification in interference of the order of the Trial Court as well as in the order of the Appellate Court. However, learned counsel for the revisionist had also argued that in this case conviction was recorded way-back in the year 2001 and since then more than 15 years have passed and the revisionist is an old person, so a sympathetic view may be taken in this regard. So far as the contention of learned counsel for the revisionist is concerned, it is evident from Section 16 of the Prevention of Food Alteration Act, 1954 that the minimum sentence as provided in the act is not less than six months. So, in the present case, to my view, if any lenient view is taken, the revisionist cannot be convicted for any sentence less than six months and looking to the facts and circumstances of the case, to my view, it would be proper to take lenient view in the matter and sentence awarded by the Trial Court as affirmed by the Appellate Court may be modified from one year simple imprisonment to six months simple imprisonment.

In view of the aforesaid facts, the revision is partly allowed. Order dated 08.10.2002 affirming order dated 17.07.2001 is modified. The revisionist is convicted under Section 7(I)/16(I)(A)(I) of the Food Adulteration Act, 1954 with simple imprisonment of six months and with a fine of Rs.1,000/- and in case of default of payment of fine, he will have to undergo one month simple imprisonment. The period of sentence, which has already been undergone, and the fine, which has already been deposited, shall be adjusted as modified by this Court.

Let a copy of this order alongwith the lower court record be sent back to the Court concerned for compliance.