Aniruddha Singh ORDER
Aniruddha Singh, J.
1. Heard learned counsel for the revisionist and learned A.G.A and perused the record.
2. The revisionist-accused Amrit Lal has preferred this revision under section 397/401 Cr.P.C. against the judgment and order dated 23.05.1988 passed by Special Judicial Magistrate Fatehpur, in Criminal Case No. 660 of 1986, under Section 7/16 Prevention of Food Adulteration Act, Police Station Hussainganj, District Fatehpur. He has also assailed the order dated 30.08.1990 passed by Special/Additional Session Judge Fatehpur, dismissing Criminal Appeal No. 50 of 1988 confirming conviction under Section 7/16 Prevention of Food Adulteration Act and sentenced for rigorous imprisonment of six months and fine of Rs. 1,000/-. In case of default, three months additional rigorous imprisonment.
3. The prosecution case is that on 24.03.1984 at about 9.45 a.m. on octroi out post near Bhitaura road, Food Inspector of Nagar Palika Sri R.N. Trivedi found the accused exhibit about one and a half quintal of Bejhar for sale. On being suspicious of adulteration, he introduced himself to the accused and purchased 600 grams of Bejhar and paid 60 paise and obtained receipt of sale. He divided the purchased Bejhar in three equal parts and kept them in three separate clean, dry and empty phials and pasted labels containing sample number RNT-2/84 in all the three phials and sealed them. He pasted the code slip containing code name, number and signature of local health authority and obtained thumb impression of the accused over it. A notice under Form-6 was given to the seller Amrit lal. The above proceeding was conducted in presence of the seller and witness Ranjit Singh, Safai Naik. It was mentioned that no public witness agreed to be a witness in the said proceeding.
4. The sample phial containing Form-VII in the sealed packet, was sent to Public Analyst Varanasi. The sample seal alongwith Form-VII was also sent to the Public Analyst under registered post. The remaining two phials were deposited alongwith the memorandum Form-VII the office of local health authority.
5. The Public Analyst found 19.64% Khesari in the sample. After receipt of the said report from the Public Analyst, he made a report to the local health authority. The C.M.O Fatehpur accorded prosecution sanction u/s. 7/16 of the prevention of Food Adulteration Act and the Food Inspector was authorised to launch the prosecution against the accused. The C.M.O. Sent a notice to the accused apprising him with the facts of the case and also asking him to get him sample analysed by the Central Food Laboratory, if he so likes. But he did not avail this opportunity.
6. Charge u/s. 7/16 of Prevention of Food Adulteration Act was framed against revisionist. The accused-appellant denied the allegations made against him and stated that he has been falsely implicated in this case.
7. The prosecution examined Sri R.N. Trivedi, Food Inspector as P.W.-I Sri Ranjit Singh as P.W.-2 and Sri Pal Sahu, as P.W.-3.
8. In his statement under section 313 Cr.P.C. the accused has stated that the witnesses have deposed against him because they are employees of the same department. He further stated that he brought the Bejhar by his own Tangri. No sample was taken. He was falsely implicated and the Bejhar was meant or the use of cattles. He further stated that he will adduce evidence in defence, but he did not produce any oral or documentary evidence in his defence.
9. The learned magistrate perused the entire record and found the accused guilty under section 7/16 of the Prevention of Food Adulteration Act and sentenced him accordingly.
10. Feeling aggrieved, the appeal was filed and that was dismissed, hence, this revision.
11. Learned AGA on the contrary supported the judgments of court below and contended the concurrent findings have been recorded by courts below, hence, no ground for interference in criminal revision is made out.
12. In order to see whether is any non-compliance of Section 10(7), it would be appropriate to have a perusal of aforesaid provision, which reads as under:
"Section 10(7)- Where the Food Inspector takes any action under clause (1) of sub-section (1), subsection (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."
13. The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954.
14. Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons'. The words "as far as possible" were deleted by amendment in 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc., it shall vitiate the Trial.
15. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad v. M.V. Alu and another, MANU/KE/0233/1991 : 1991 Cri.L.J. 2174 considered it and in para 2 of the judgment said that sub-section (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.
16. In another matter arisen from State of Uttar Pradesh itself, a three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya v. Municipal Corporation of Delhi and another, MANU/SC/0206/1974 : 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said:
"5. We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat, MANU/SC/0071/1971 : AIR 1971 SC 1277 it was held by this Court after noticing that Section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.
6. As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."
17. From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector at least should try to secure presence of one or more independent witness when he takes action under any of the provisions mentioned in Section 10(7). Once that has been done, evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable. It is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents.
18. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika v. Mohammad Wasim, MANU/UP/0212/1992 : 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample.
19. Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here this Court is fortified by a decision of Madras High Court in Public Prosecutor v. Ramachandran, 1993(1) FAC 93.
20. The Apex Court in State of U.P. v. Hanif, MANU/SC/0206/1992 : AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case.
21. The contention, therefore, that there was no independent witness to justify collection of sample by Inspector and thus there is non-compliance of Section 10(7) of Act, 1954, is rejected.
22. Adulteration in food article has a direct adverse consequence to the health of public. Many a times such adulteration with food causes such serious loss to the consumer, which is unrecoverable and create permanent disability or loss etc. We cannot presume that the oil sold by accused-revisionist would have been used by a healthy person and not a patient facing serious disease in the Hospital or otherwise. The adulterated item is bound to cause such loss as it could be and the consumer would suffer without having any knowledge therefor. The people who are indulged in adulteration are more dangerous and stark enemy of humanity than those who commit crime by killing a person straight. Here the hidden crime causes injury to a person who has no idea as to how he has suffered and that too in a defenceless situation. He would believe that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a different and rather bad way. Consumer suffers in ignorance but with an obvious confidence that whatever he is in taking is alright. The adulterators, therefore, do commit a much heinous and serious crime to the Society as a whole and deserve no sympathy.
23. In fact, in our Country, we deal with adulteration with lot of sympathy which encourages continuous indulgence in such activities. The adulteration is not being treated with such seriousness as it ought to be. This treatment to adulteration is anti-human and anti-society. The act of adulteration need be viewed with absolute strictness and stringent measures must be taken to prevent it, else Society in general would continue to suffer in the hands of adulterators, who are minting money playing with health of public at large without taking care whether suffering consumer would be an innocent child, a pregnant lady, a patient in Hospital struggling for life or any such other needy person.
24. In the resent case, the prosecution has proved the case beyond doubt. Accused has been found guilty of adulteration of Bejhar. Court below has already taken a lenient view by imposing punishment of only six months rigorous imprisonment and fine of Rs. 1000/-. Attempt to grant any indulgence in such a matter, when the Court below has already taken a lenient view in awarding punishment, would be nothing but mockery of justice. proved' is defined under Section 3 of Evidence Act which is quoted below:
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
From the perusal of record, it transpires that complainant was able to prove the offence labelled against the revisionist beyond reasonable doubt and facts. A prudent man ought, under the circumstances of this case, to act upon the supposition that it exists.
25. Learned counsel for revisionist submitted that revisionist is not the owner of shop and he is servant, hence lenient view may be taken and he is not liable to be convicted; but this Court finds no force in the argument because he as selling Bejhar and sample was taken from him.
26. Society had a confidence in the system of justice and is waiting that persons found guilty of committing heinous crimes are punished appropriately and suitably, even if punishment is executed with lot of delay since Society has no control over delay occurring in Court but has concrete faith in the system of justice. Therefore, it is not deterred by delay but is satisfied even when justice comes highly belated, provided it is not diluted and lean in favour of accused so as to treat him like a victim ignoring loss suffered by actual victim.
27. Even otherwise, punishment imposed by Courts below after finding charge proved beyond doubt is not to be interfered lightly unless the Court finds adequate and appropriate reason therefor.
28. In Duli Chand v. Delhi Administration, MANU/SC/0113/1975 : 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.
29. In Pathumma and another v. Muhammad, MANU/SC/0196/1986 : 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.
30. In Munna Devi v. State of Rajasthan and another, MANU/SC/0715/2001 : 2001(9) SCC 631 the Court said:
"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
31. In Ram Briksh Singh and others v. Ambika Yadav and another, MANU/SC/0201/2004 : 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:
"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."
32. Under Prevention of Food Adulteration Act, 1954 section 13 (2) is relevant which is quoted as under:-
13. Report of Public Analyst-
(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (health) Authority analysed by the Central Food Laboratory.
33. From the perusal of record it reveal that the provision of Section 13(2) of P.F.A Act was completely followed by the Food Inspector.
34. On the point of sentence, learned counsel for the revisionist has further submitted that revisionist is an old person and incident is of the year 1986, 32 years have been lapsed. Revisionist belongs to rural area. Financial and social status of the revisionist is also very poor, hence, linnet view may be taken against revisionist and he may be sentenced to imprisonment already undergone and fine.
35. Minimum sentence has already been awarded after taking lenient view, hence, no force.
36. In view of above exposition of law and considering the facts and circumstances of this case, this Court finds no merit in any of the submissions advanced on behalf of revisionist.
37. The revision is, accordingly dismissed.
38. Interim order, if any, stands vacated.
39. Revisionist Amrit Lal, is on bail. His bail bonds and sureties are cancelled. Revisionist is directed to surrender before the court below within 15 days from where he shall be sent to jail to serve out the remaining sentence. In case, the revisionist shall not surrender before the court below within the time stipulated by this Court, Chief Judicial Magistrate, Fatehpur, is directed to issue coercive process for procuring the arrest of the revisionist and sent him to jail.
40. Copy of this order alongwith record of lower Court be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court within three months which shall be kept on record.
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