Ram Deo Sahu vs State of U.P.

Virendra Saran, J.—Ram Deo Sahu has preferred this revision against the judgment and order dated 24.3.1987 of Sri N. K. Mehrotra, I Ind Additional District and Sessions Judge, Varanasi, dismissing Criminal Appeal No. 309 of 1985 against the judgment and order dated 16.11.1985 of Sri S. K. Maurya, Additional Chief Judicial Magistrate, Varanasi, passed in Criminal Case No. 6930 of 1984, convicting and sentencing the applicant u/s 7/16 Prevention of Food Adulteration Act, 1954 (for short the Act) to 3 months'' R.I. and a fine of Rs. 500.

The prosecution case is that Sri C. P. Srivastava, Food Inspector visited the grocery shop of the applicant and collected a sample of zeera. After due formalities, a part of the sample was sent to the Public Analyst who found that extraneous matter was in excess from the prescribed limit and hence the zeera was adulterated. The defence of the applicant was that he does not run any grocery shop and that the sample was not taken from him. The applicant also denied the signatures on the memo of taking of sample. The two courts below, accepting the prosecution case, convicted and sentenced the applicant as mentioned above who has now come up before this Court in revision.

I have heard Sri C. K. Parekh, learned Counsel for the applicant and learned Additional Government Advocate at length.

The submission made by learned Counsel for the applicant is that in fact, the defence of the applicant that he was carrying on the business of running an oil expeller and that he was not having any grocery shop has not been properly considered by the two courts below.

I have gone though the judgments of the two courts below. In his defence, the applicant examined himself as D.W. 1 and in corroboration of his evidence, he examined D.W. 2 Shankar Pandey. Both of them stated in one voice that the applicant was engaged in running an oil expeller and he did not have any grocery shop. The applicant also stated that the sample of zeera was not taken from him. Against this, there is the solitary testimony of the Food Inspector on the point of collection of zeera from the applicant. No public witness was there in this case to support the testimony of the Food Inspector. The evidence of P.W. 2 Rajendra Prasad was only of formal nature and he was not a witness of fact of taking of sample. Section 10(7) of the Act states as under:

Section 10(7): Where the Food Inspector takes any action under Clause (9) of the Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.

The provisions of Section 10(7) of the Act have been held to be mandatory in more than one case. In the case of Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, , the Supreme Court held the provisions of Section 10(7) of the Act to be mandatory. I am bound by law laid down by the Supreme Court.

It may be observed here that the learned Sessions Judge while assessing the evidence of the trial court did not at all discuss the evidence of D.W. 1 and D.W. 2 who had stated on oath that the applicant did not carry on business of running grocery shop and was in fact running an oil expeller. The learned lower Appellant court preferred not to touch their evidence and completely overlooked the defence evidence in this case. In view of this, the finding recorded by learned lower appellate court suffers from a patent impropriety. The learned lower appellate court simply observed that at one place the defence had suggested to the Food Inspector that there was very small quantity of zeera in a bag. It is not clear in what context the suggestion came. When the applicant had come with a positive defence case and took the risk of putting himself in the witness box and made a definite statement on oath, a flimsy defence suggestion by the counsel does not impart any strength to the prosecution case. In the instant case, besides the evidence of the applicant, there was also the evidence of D.W. 2 Shankar Pandey. The prosecution was unable to elicit anything in their cross-examination to discredit their testimony.

Considering the entire evidence in this case, I am of the view that the findings of the courts below suffer from impropriety. They have also not considered the defence evidence and it is not possible to sustain the conviction of the applicant.

Accordingly, this revision is allowed. The conviction and sentences passed against the applicant are set aside and he is acquitted. The applicant is on bail. He need not surrender and his bail bonds are discharged. Fine, if paid by the applicant, shall be refunded to him forthwith.