Madan Bhandari vs State Of Uttarakhand

Sharad Kumar Sharma, J

List revised. None appears on behalf of the revisionist to press the revision, but since being a criminal revision against the order of conviction for commission of the offence under Section 7/16 of Prevention of Food Adulteration Act, 1954, this Court has got no other option except to proceed to decide the matter on the basis of the assistance extended by the Government Advocate.

The precise controversy, which has emerged for consideration before the Court of Chief Judicial Magistrate on its registration as Criminal Case No. 3957 of 2004 'Food Inspector, District Haridwar vs. Madan Bhandari', it was on the backdrop that on 14.01.2004 at about 11:30 AM the accused person, who was conducting his business from the shop belonging to him and was dealing in the cereals particularly (Arhar ki Daal) the inspecting team when raided the shop in question and they have collected the sample in the presence of the health officer of Ward A1/2004 and after collecting the sample of the cereal in question the same was sent in different packs for its examination in the laboratory at Lucknow. The three samples thus collected and kept in the sealed separate packing on being inspected by the laboratory in accordance with the Food Adulteration Rules of 1955, it was reported that after compliance with the provisions contained under the provision of Food Adulteration Act to be read with Rule 7 (i) (v) as well as Rule 44 (1) it was found that the act of selling the adulterated cereals was violative of the provisions contained under Section 16(1) (a) (i) to be read with Rule 23 and hence after the receipt of the report of the laboratory the prosecution commenced by the registration of the Case No. 3957 of 2004 'Food Inspector, District Haridwar vs. Madan Bhandari' before the Court of Chief Judicial Magistrate.

As per the finding, which has been recorded by the Court of Chief Judicial Magistrate, Haridwar, it has been observed that in compliance of the provisions contained under Section 244 of Cr.P.C. the witnesses of the prosecution, i.e. PW1 Yagyadutt Arya, PW2 Mahimanand Joshi, were examined in support of the prosecution case and they have also placed on record the receipts as exhibit-1, the labels placed for samples thus collected as exhibit-3, the railway registry through which the samples were sent for examination as exhibit-4, the postal registry receipts exhibit-5 and the report of the laboratory as exhibit-7 and the examination report as made by the Chief Medical Officer through C.O.M.

Based on the aforesaid material and evidence on record the revisionist is said to have been charged for the offences under Sections 7(1) to be read with Section 16(1) (a) (i) as per the Food Adulteration Act of 1954. On submission and framing of the charge for the aforesaid offences the statement of PW1, PW2 and PW3, i.e. the clerk in the Food Supply department Intezar Ahmed as well as the statement recorded of PW3, it was found that the receipt exhibit- Ka 11 goes to prove that the revisionist was indulged in dealing with the cereals, which were not satisfying the conditions of its quality and the chemicals, which has been used by it for polishing the cereals so as to give it sellable look for the public at large.

It was ultimately on the basis of scrutiny of the report submitted it was found that the cereals thus which was collected from the shop of the revisionist was an adulterated material because it was using a particular type of a polish, which was not permissible as per the rules framed under the Food Adulteration Act. The report, which was submitted being report No. 1244 dated 03.03.2004 on examination of the sample has opined that the cereal, which was tested by the experts in the laboratory, it was found that it was using a chemical called as tartrazine, which used to provide a superficial colour on the cereal so as to make it more attractive for increasing its sellable value. The report, which was thus submitted on 03.03.2004 was further fortified from the statement of the expert Dr. S.C. Tiwari, who counter signed the report and also has given his report as exhibit-7 and on the basis of the securitization of the aforesaid reports and the statement of the witnesses of the prosecution, the report was taken on record to be considered at the time of the trial.

During the course of trial PW2-the Food Inspector Mahimanand Joshi recorded his statement under Section 244 and he supported the contents of the report and the finding, which has been recorded therein pertaining to the use of prohibited chemicals, which was harmful to the human consumption and hence, after the approval granted by the letter dated 28/2004-05 dated 13.07.2004 the prosecution commenced and on scrutinizing the exhibit-9 the Court has come to the conclusion that the revisionist was accused of commission of an offence under Section 7/16 and consequently the learned Trial Court on a judicious consideration of the contents of the report as well as the opinion expressed by the Chief Medical Officer, who had approved the contents of the report had come to the conclusion that as far as the offence under Section 7(16) with regards to the set of allegations of using a polish to give cereal a fresh and new attractive look was made out against the revisionist.

Consequently, the learned court of Chief Judicial Magistrate, Haridwar, after considering the stand taken by the defense as to the manner in which the assessment could be made for imposing a liability under Section 16/7 of the Food Adulteration Act, the learned Trial Court has recorded a conclusive finding that as per the report of the samples submitted before it and particularly an expert of a public authority of Lucknow, it was established beyond doubt that the sample contained certain percentage of tartrazine colour, which was detrimental to the human consumption. It was further held that as per the report, the colour, which was used, it was contrary to the provisions contained under the Food Adulteration Act, 1955, which prohibited the use of any artificial colour to be applied on the cereals to give it a glary look to increase its sellable value. Consequently on considering the report, the complaint, the statement of the witness recorded, the court of Chief Judicial Magistrate by its judgment dated 23.08.2000 has ultimately found that the revisionist was an established offender of an offence under Section 7(1) as well as those of Section 16(1) (a) (i) and consequently has convicted the revisionist to undergo a sentence of simple imprisonment with a period of six months and a penalty of Rs. 1,000/- has been imposed upon him.

Being aggrieved against the said order, the revisionist has preferred an appeal being Criminal Appeal No. 105 of 2010 'Madan Bhandari vs. State of Uttarakhand and Others' and the Appellate Court on considering the appeal on its merit dismissed the same by the judgment dated 14.09.2011 and as a consequence thereto has affirmed the judgment of the Trial Court dated 23.08.2010 convicting the revisionist for commission of the offence under Section 17/16 of the Food Adulteration Act.

The Appellate Court after considering the propriety of the proceedings drawn as against the revisionist on the initiation of the FIR, which was registered against him on 14.01.2004, the Appellate Court had recorded a finding to the effect that on perusal of the records of the Trial Court, which was produced before it, it was found that the action of the revisionist was not in derogation of the provisions contained under Section 10(7) to be read with Section 13(2) as it has been sought to be argued by the revisionist at the time when the appeal was under consideration before the Appellate Court. The court has recorded a finding that there is no reason to disbelief the report submitted by the expert laboratory dated 03.03.2004, which in its finding has specifically recorded the presence of certain percentages of tartrazine colour, which was a prohibited chemical used by the revisionist in polishing the cereal, for which he was accused of the offences as narrated above.

The learned Appellate Court while considering the implications of Rule 28, which constitutes to be the part of the Food Adulteration Rules, 1955, the use of the chemical ought not to have been made in the cereals thus collected for the samples being Arhar ki Dal, the act of the revisionist of using the prohibited chemical was upheld by the Appellate Court and resulting into affirming the sentence as imposed upon the present revisionist by the learned Trial Court sentencing him to undergo a period of simple imprisonment for a period of six months and a fine of Rs. 1,000/- has been imposed upon him.

The learned Appellate Court on considering the ratio reported in AIR 2004 SC 1236 'Food Inspector vs. G. Satyanarayana' has slightly though has principally admitted the incident and the gravity of the incident based in report submitted by the expert, but on a very technical ground to the effect that the Chief Food Inspector, who appeared in the witness box, has not been able to establish in its specific statement recorded before the court below with regards to as to whether at all the report, which has been submitted by the experts pertaining to the use of chemical for polishing the material could be extracted otherwise from the statement of the witness as recorded before the court below. Ultimately, the Appellate Court while appreciating the statement has drawn a conclusion that since as per the witnesses of the public, which was required for the purposes of sustaining the prosecution and none has appeared to record any evidence.

Hence, in the light of the ratio as laid down by the Hon'ble Apex Court as reported in AIR 1977 SC 56 'Prem Ballabh and Another vs. The State (Delhi Admn.)' the Court has held that while considering the ratio as laid down in the aforesaid judgment and also in particular the report of the expert as submitted before the Trial Court that the report No. 1244 dated 03.03.2004 was not served upon the revisionist convict in person and which in accordance with the ratio laid down by the Hon'ble Apex Court when a report in relation to the proceedings under the Food Adulteration Act, 1954, is being utilized for the purposes of determining the gravity of sentence and punishing the authority then it is incumbent that the court should ensure that report which is in adverse to the accused person should have been ensured to have been supplied and served on the complainant.

Consequently, on that limited premise that since there was no record before the court below that the ex parte inspection report dated 03.03.2004 was ever supplied to the revisionist, and there is no evidence on record to show that the said report was ever served upon the revisionist to have his say against the judgment of conviction. Hence, merely the receipt being Receipt No. 3602 dated 26.08.2004 cannot be taken as to be the sole testimony or evidence for the purposes of convicting the revisionist for commission of the offence under Section 7(16) of the Food Adulteration Act.

Thus, the court held that in view of the provisions contained under Section 13(2) of the Food Adulteration Act of 1954, since the procedure as provided therein was not complied with and the conviction has been resulted into without a rightful appreciation of the evidence on record and particularly the circumstances under which the samples were created the accused person has raised a rival contention pertaining to undertaking the activities of growing the cereals, the same has not been considered by the learned Trial Court while determining the quantum of sentence for a commission of the aforesaid offences.

On account of the aforesaid procedural flaw of non submission of the report of the expert as received from the laboratory on 03.04.2016 before the Magistrate concerned, who was trying the offence, hence, the revisional court has held that since the Appellate Court has only remitted the matter while affirming the order dated 23.04.2010 had remitted the matter to the Appellate Court to comply with the procedure, summon the accused person, provide him with the copy of the report and then only to draw any conclusion with regards to the establishment of the aforesaid offences.

Since the rules framed under the Act itself mandates and even as per the ratio of the Hon'ble Apex Court as reported in...................that where the report of the expert is being utilized by the competent authority for the purposes of the conviction of an accused person, it is necessary for the authority to ensure that before the report is taken as to be the basis for passing an order of conviction, the same ought to have been ensured to be supplied on the accused person and a proof of service of the report should also constitute as to be the part of the record in the proceedings before the court below in case if it is preferred by the accused person against the order of conviction. Since there is nothing on record to show that the report dated 03.03.2004 was ever effectively made serve upon the present revisionist as per the judicial pronouncements referred above, it would vitiate the entire proceedings because the revisionist was never supplied with the report to controvert its contents and veracity in order to justify the order of conviction. Consequently, the Appellate Court has remitted the matter while accepting the propriety of the report only to the effect that the Appellate Court would ensure that the report is served upon the convict revisionist his objection would be invited on the same and then only the Appellate Court would draw any conclusion with regards to the affirmation of the conviction as inflicted upon him by the learned Sessions Court.

Since the decision pertaining to the actual order of conviction to be passed by the Appellate Court is yet to be taken a consideration of the propriety of the report dated 03.03.2004, this Court is of the view that the judgment of the Appellate Court does not suffer from any appellate error because the decision in pursuance to the report of the expert submitted before the Trial Court is yet to be determined after providing an opportunity to the revisionist.

Consequently, this revision lacks merit and the same is accordingly dismissed with a direction to the revisionist to approach before the Appellate Court and to file his objection to the report of the expert dated 03.03.2004 in order to justify the contents given in the report pertaining to the use for prohibited chemical used for polishing the cereals and then only the Appellate Court is directed to take a decision as against the order of conviction against which the appeal has been preferred before him.

Subject to the above observation, the revision lacks merit and the same is, accordingly, dismissed.