Durai vs State by: Food Inspector, IX Circle, Madras

Arynachalam, J.—Even before commencing arguments on the inherent merits in this revision case, Mr. V.K. Sathiamurthy, the learned

Counsel appearing on behalf of the Petitioner, brought to my notice that the Petitioner is now dead. He died on 14-9-1987 subsequent to the filing

of this revision in October, 1985. Section 394, Code of Criminal Procedure in terms applies only to appeals and not to revision applications. In

Pranab Kumar Mitra Vs. The State of West Bengal and Another, the apex Court had stated, that the revisional powers of the High Court, do not

create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of

criminal jurisprudence. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and

circumstances of that case. Indeed it is discretionary power which was to be exercised in aid of justice, whether it was an accused person or it was

a complainant who had moved the High Court in its revisional jurisdiction. If the High Court had issued a Rule, that Rule had to be heard and

determined in accordance with law, whether or not the Petitioner in the High Court is alive or dead or whether or not he is represented in Court by

a legal practitioner. In hearing and determining cases under Sections 397 and 401 , Code of Criminal Procedure the High Court discharges its

statutory function of supervising the administration of justice on the criminal side. Hence, the consideration applying to abatement of an appeal, may

not apply to the case of revisional application. Not withstanding the death of the convicted person pending revision, the High Court has the power

to examine the whole position of the correctness, propriety or legality of the conviction recorded and the sentence imposed.

In view of the legal position, it will be necessary to scrutinize the facts in this revision. P.W.1 the Food Inspector, 9th Division, Corporation of

Madras found the Petitioner proceeding on a Cycle with a cane of milk at or about 7.15 a.m. on 2-9-1983, on the Sahthome High Road. P.W.1

stopped the Petitioner, introduced himself, as a Food Inspector, and wanted to purchase milk from the Petitioner for the purpose of analysis. The

Petitioner told P.W.1 that One Ramaiah was the owner of milk and he was taking milk can to the bus stand and he was unaware of other details.

The said Ramiah who was arrayed as A.2 before the Trial Magistrate was however, acquitted. P.W.1 purchased 675 ml of cow-milk from the

Petitioner after observing all the formalities prescribed under the Act and Rules. One sample bottle of milk forwarded to the Public Analyst

disclosed that the sample milk was deficient in its milk fat and milk solid not fat, to the extent of 0.5% and 2.9% respectively. It was the opinion of

the Public Analyst that the sample contravened the definition and standards of quality (purity) prescribed for cow''s milk, under the Prevention of

Food Adulteration Rules. After initiation of prosecution before the XI Metropolitan Magistrate, Saidapet in M.F. No. 8 of 1983, intimation u/s

13(2) of the Act was served on the Petitioner as well as Ramaiah. The Petitioner let in evidence through D.W.1 that he was taking the milk for the

betrothel of his younger sister and the milk purchased by P.W.1 was not for sale. The defence of the Petitioner was negatived by the trial

Magistrate who convicted the Petitioner under Sections 2(a), 7(1) read with Section 16(a)(1) of the Prevention of Food Adulteration Act and

sentenced him to undergo six months, rigorous imprisonment and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for 2

more weeks. Aggrieved Petitioner chose to prefer Criminal Appeal 295 of 1984 before the 7th Additional Sessions Judge, Madras. The appellate

Court concurred with the findings recorded by the trial Magistrate and dismissed the appeal.

The only point urged by the learned Counsel for the Petitioner was, that in the absence of evidence to show that the milk had been stirred before

purchase, the conviction and sentence imposed on the Petitioner may have to be set aside.

I have heard Mr. A.S. Chakravarthy, learned Government Advocate appearing on behalf of the Respondent. It is settled law, that the absence

on the part of the prosecution to let in evidence that the milk before purchase was stirred or churned or shaken, it cannot be a homogeneous or

representative sample to lead to a correct result in test analysis. The learned Government Advocate has admitted, that there was total lack of

evidence to show that the milk was stirred, churned or shaken before it was purchased from the Petitioner. Therefore the report of the analyst

cannot form the basis to record a conviction on the Petitioner. In that view the conviction and sentence imposed on the Petitioner are set aside and

this criminal revision case is allowed. The fine amount, if it had been paid by the Petitioner, shall be refunded to his legal representatives.