Ganesh Prasad (in Jail) vs State of U.P.

Mukteshwar Prasad, J.—This criminal revision at the instance of the accused is directed against the judgment and order dated 3.8.1987 passed by the then Additional Sessions Judge, Banda, whereby he dismissed Criminal Appeal No. 47 of 1987 and confirmed the conviction of the revisionist recorded by Sri C. L. Verma, the then Judicial Magistrate, Banda.

Briefly stated, the facts of the case giving rise to this revision were as under.

On 12.12.1984 at about 9.30 a.m., the revisionist was found selling edibles, including spices in his shop situated in village Mahuwa, P.S. Girwan. Sri S. S. Pandey, Food Inspector, reached the shop and after disclosing his identity purchased 450 grams zeera and paid Rs. 6.80 p. as price thereof and obtained a receipt. He divided zeera into three parts and sealed in three clean and dry bottles. A sealed container of one part of the sample was sent for analysis along with memorandum in form No. 7. After analysis by the Public Analyst, it was found that there were extraneous material in the sample to the extent of 8.5% which was in excess of 7%, the permissible maximum limit fixed under the rule. Therefore, the sample was found to be adulterated. After receipt of the report from the Public Analyst and obtaining sanction of C.M.O., Banda (Local Health Authority), the prosecution was launched.

Accused was charged u/s 7 read with Section 16 of the Prevention of Food Adulteration Act (in short the Act) on 4.8.1986. He pleaded not guilty and claimed to be tried.

Complainant S. S. Pandey examined himself as P.W. 1 and Ram Niranjan, Food Clerk as P.W. 2.

Accused Ganesh Prasad in his statement recorded u/s 313, Cr. P.C. disclosed his age as 35 years and pleaded his false implication on account of old enmity with the Food Inspector. According to him, zeera, in question, was purchased by the Food Inspector from the shop of his maternal uncle Bahadur Prasad (Mama) and he had made his signature as a witness. He examined D.W. 1 Bahadur Prasad and D.W. 2 Raja Bhaiya Gupta in his defence.

After having heard the Food Inspector, learned Counsel for the accused and considering the entire oral and documentary evidence on record, learned Magistrate found the accused guilty and convicted him u/s 16 of the Act and sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000. In default, he was ordered to suffer further rigorous imprisonment for a period of two months.

The Additional Sessions Judge who heard the appeal filed by the accused dismissed and confirmed the conviction and sentence.

I have heard learned Counsel for the revisionist and learned A.G.A. and perused the record, including judgments of the courts below carefully.

Learned Counsel for the revisionist has assailed the impugned judgment mainly on the grounds that there was adulteration to the extent of 1.5% only and as such, learned courts below erred in convicting the revisionist. It was also urged that the revisionist was a minor at the time of taking sample and as such, he should be sentenced to the period already undergone by him. Lastly, it was submitted that zeera is a primary food and as such, the revisionist may be given benefit of the proviso to Sub-section (1) of Section 16 of the Act.

He has placed reliance on the following decisions:

(1)Kishori Lal v. State of U. P., (XL) 2000 ACC 15.

(2) Roshan Lal Yadav v. State of U. P., (XL) 2000 ACC 204.

(3) Madan Gopal v. State of U. P., 2001 (1) ACR 465: (XIL) 2000 ACC 801.

(4) Sri Chanai v. State of U. P., (XIL) 2000 ACC 164.

(5) Bal Krishna Dass and Anr. v. State of U. P., 2001 (1) ACR 309: (XIL) 2000 ACC 72.

On the other hand, learned Counsel for the State urged that the Public Analyst found adulteration in the sample to the extent of 8.5% which exceeded the maximum permissible limit of 7%. Therefore, the courts below were wholly justified in convicting the revisionist.

I have considered the submissions made on behalf of the parties. First of all, I am not inclined to accept the contention of the revisionist''s learned Counsel that the sample of zeera sent to the Public Analyst was not adulterated. According to the report of the Public Analyst, there was adulteration to the extent of 8.5%, which was in excess of 7%. I, therefore, hold that there was adulteration in the sample. As mentioned above, the revisionist himself disclosed his age as 35 years in March, 1987 and sample was taken in December, 1984. It means, the revisionist was not a minor, as claimed by the revisionist''s learned Counsel. He is, therefore, not entitled to be released on probation as provided u/s 20AA of the Act. So far as sentence is concerned, I have gone through the decisions relied upon by the revisionist''s learned Counsel. It is true that the single Judges directed the revisionist to deposit fine in addition to the minimum prescribed under the law and directed the State Government to commute the sentence of simple imprisonment into fine as provided u/s 433(d), Cr. P.C. I am, however, not inclined to follow the aforesaid decisions for the reason that the Apex Court of the country in its decision in Dayal Singh Vs. State of Rajasthan, , refused to modify the sentence by passing an order of the nature passed inN. Sukumaran Nair v. Food Inspector, Mavelikara, 1997 SCC 608. It is noteworthy that the Apex Court in N. Sukumaran Nair''s case (supra) directed the Appellant to deposit in the trial court a sum of Rs. 6,000 as a fine in commutation of the sentence of six months imprisonment and intimate the State Government to formalise the matter by passing appropriate orders under Clause (d) of Section 433, Cr. P.C. The Supreme Court of India in Dayal Singh''s case (supra) observed that strict adherence to the Act and Rules framed thereunder is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could get away with mere fine. The Court did not interfere with the sentence imposed on the Appellant (accused). Keeping in mind the non-availability of unadulterated food articles in the market including spices, etc. and in order to prevent the malady of adulteration in the society. I am also not inclined to sentence the revisionist to the period already undergone by him.

In the instant case, I, however, find that zeera is a primary food. Therefore, in view of the facts that sample of zeera was taken in the month of December, 1984 and the revisionist was convicted by the learned Magistrate in the month of April, 1987. I am inclined to extend the benefit of proviso to Section 16 of the Act. In this view of the matter, this revision must succeed.

The revision partly succeeds. The conviction of the revisionist u/s 7 read with Section 16 of the Act is confirmed. He is, however, sentenced to rigorous imprisonment for a period of three months and to pay a fine of Rs. 500. In the event of default, the revisionist will further suffer rigorous imprisonment for a period of two months.

The stay order dated 10.8.1987, stands vacated.