Kishore Ram (In Jail) vs State of U.P. and Another

S.K. Agarwal, J.—This revision arises out of an order of conviction passed by the Special Judicial Magistrate, Ghazipur, convicting the applicant u/s 7/16 of the Prevention of Food Adulteration Act and sentenced him to undergo R.I. for one year and also to pay a fine of Rs. 1,000.

The applicant had preferred an appeal before the Sessions Judge, Ghazipur, which was finally heard by the I Ind Additional Sessions Judge, who also confirmed the conviction and sentence of the applicant, as stated above.

The facts of the case, in brief, are that on 20.4.1981 at about 8.00 a.m. Sri K. K. Singh, Food Inspector, Ghazipur, took a sample of buffalo milk at Mohan Lal Ka Pokhra from the applicant. It is alleged that the applicant was carrying this milk in a bucket on a cycle. After completing all usual formalities of notice, etc., the sample was sealed and one phial of the same was sent to the Public Analyst for analysis. The report of the Public Analyst, Lucknow, showed that the said sample was deficient by 43% in fatty solids and 52% in non-fatty solid contents. In the result the sample was treated as adulterated.

In order to prove its case, the prosecution examined Food Inspector as P.W. 1 and P.W. 2 Baleshwar, who is the Food Clerk in the office of C.M.O., Ghazipur. The Appellant also examined two witnesses, viz., D.W. 1 Sheo Murat and D.W. 2 Harbansh. It has been urged before me that the provision of Section 13(2) of the Prevention of Food Adulteration Act has not been complied with in this case. The provisions are mandatory and its non-compliance vitiates the conviction of the applicant. I do not find any merit in this contention.

However, the main contention is that no signatures of the applicant were obtained by the Food Inspector on the sealed sample phial, which was allegedly sealed by him at the spot immediately after taking the sample. In the opinion of the learned Counsel for the applicant, this raises serious doubt about the genuineness of the prosecution story as also the analyst''s report. It is a requirement under the law that the signatures of the vendor be obtained on the sample phials. Whether they are mandatory or are directory is not the question so relevant. If the Food Inspector has failed to obtain signature of the applicant on the phials itself, an inference can be drawn against the genuineness of such a sample. This requirement of obtaining the signature has been enjoined upon a Food Inspector not for the purpose of its violation. There is a purpose behind this provision and it is to ensure that the samples have not been changed or in any manner subverted or tampered with. Non-obtaining of the signature by the Food Inspector of the applicant on the phials thus raises serious doubt. It is unacceptable that a person, who has already signed the documents, will refuse to sign the sample phial. Explanation offered by the Food Inspector that the applicant had refused to sign and moved away is not acceptable to me in the circumstances of this case at all. He appears to have forgotten to take the same but apparently failed to muster courage to say so in a straightforward manner or the sample is not the same which was taken from the applicant.

It has next been contended before me that the applicant is an illiterate person. He cannot sign and, therefore, the signatures on the papers (Exts. Ka-1 to Ka-3) are all fictitious and forged. The learned Sessions Judge has discarded this argument only on the strength of the evidence of the Food Inspector that he knew the applicant from before and the applicant had signed. This fact does not find place in any papers prepared by him. The other reason that appealed to the learned Addl. Sessions Judge was that the Food Inspector had no motive to implicate the applicant in the present proceedings. The fact that the Food Inspector has given out that the applicant had moved away without putting his signatures on the sample phials has not been taken down by him in Ext. Ka-3, which was prepared in this connection. It has not come in evidence as to how much quantity of milk was there in the bucket. The fact that the applicant has been affixing thumb mark in the order-sheet and other papers filed by him in the Court is further proof of the fact that he was an illiterate person and uncorroborated testimony of the Food Inspector in these circumstances, I fail to accept. It is unacceptable to me that on the basis of the legal advice, the applicant will adhere to this device in Court to thwart his prosecution. In such circumstances, he may have put his signatures at least on the order-sheet on one or the other date. Such a mistake is likely to occur if it was used as a ploy. If is not necessary at all for the defence to file any document to show that he is an illiterate person, as observed by the learned Addl. Sessions Judge. Once such a challenge has been made to the case of the prosecution by the applicant at the outset and it is substantiated by his continuous putting of thumb mark, it becomes imperative for the prosecution to contradict his case by producing some evidence. The Food Inspector could have produced his school leaving certificate after ascertaining this fact. He could have produced any person, who has seen him reading or writing. No other witness has been examined to corroborate his evidence on this point. Some altercation with the Food Inspector a few days before is the defence of the applicant, the evidence of which fact is available from the statements of D.W. 1 and D. W. 2.

The learned Addl. Sessions Judge has also failed to consider the defence evidence except referring to D.W. 2 Harbansh by name, since this name has occurred in the statement of the accused-applicant u/s 313, Cr. P.C. The failure to consider the defence evidence cannot be justified in law. Mere reference of the names of the witnesses as D.W. 1 & D. W. 2 is not sufficient consideration of their evidence. If he was in agreement with the finding of learned Magistrate on this aspect, he ought to have said so in his order. This may have indicated application of his mind to this piece of evidence.

In the circumstances, this revision is allowed and conviction and sentence awarded to the applicant by the trial court and confirmed by the learned Addl. Sessions Judge in appeal is set aside. The applicant is on bail. He need not surrender. His bail bond and surety bonds are hereby discharged.