PFA – Allahabad HC – CRP – Abdul Wahid Vs State – Arhar sample adulterated – Feb-22-2017

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
AFR
 
Reserved on 18.11.2016
 
Delivered on 22.02.2017
 
Court No. - 34
  
Case :- CRIMINAL REVISION No. - 1258 of 2007
  
Revisionist :- Abdul Wahid
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Salman Ahmad,Sumit Jaiswal
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Salman Ahmad, Advocate, for revisionist and learned A.G.A. for State-opposite party.

2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 10.01.2007 passed by Additional Chief Judicial magistrate, Court No. 3/Special Court (Economics Offences), Pilibhit in Criminal Case No. 5796 of 2005, convicting revisionist under Sections 16(1)(a)(ii) and 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) and sentencing him to undergo six months simple imprisonment under Section 16(1)(a)(ii) and six months’ simple imprisonment and fine of Rs. 500/- under Section 16(1)(a)(i) and in case of default in payment of fine, further simple imprisonment for a period of one month. Thereagainst accused-revisionist preferred Criminal Appeal No. 2 of 2007 which has been dismissed by Sessions Judge, Pilibhit vide judgment and order dated 28.04.2007. This revision has been filed challenging both the aforesaid orders.

3. Brief facts are that a complaint was filed by Sri R.P. Gangwar, Food Inspector against revisionist under Section 7/16 of Act, 1954 stating therein that on 9.05.2002 at 2.00 PM Complainant along with mobile-squad constituted by Chief Medical Officer, Pilibhit reached the Grossery shop of revisionist situated in Mohalla Naugawan Pakaria wherein edible oil, spices , pulses, salt, Namkeen and Biscuits were exhibited for sale. Complainant then asked the accused-revisionist to show licence for sale which he could not produce. Suspecting adulteration in Arhar pulse, Complainant purchased 750 Gms. Arhar pulse as sample, paid Rs. 18/- therefor and obtained receipt in duplicate. Before purchasing the pulse, notice in writing on Form No. VI was served on accused-revisionist. He divided the sample into three parts, poured the same in three clean and dry bags, pasted label and obtained signatures of accused-revisionist thereon and then sealed the same. Complainant then prepared inspection memo. One sample was sent along with Form VII to Public Analyst, U.P. Government, Lucknow for analysis through parcel. Rest of two samples were deposited in the Office of Chief Medical Officer, Pilibhit on 30.05.2002 and he also obtained receipt in respect of the same. Public Analyst, U.P. Government, Lucknow sent report dated 09.07.2002 declaring the sample to be adulterated, as 12 per cent Kasari-Dal was found mixed in the same which was prohibited for human consumption under Rule 44-A of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “Rules, 1955”). Complainant then made an Application for obtaining sanction to Chief Medical Officer Pilibhit for prosecuting accused-revisionist. Sanction was accorded on 21.08.2002. Complainant then prepared Challani Report and submitted the same in Court whereupon Trial Court took cognizance and summoned accused-revisionist for trial.

4. Complainant, PW-1, in his statement recorded under Section 244 Cr.P.C. on 19.08.2004 supported the prosecution version in all material particulars. Trial Court framed charge under Sections 16(1)(a)(ii) and 16(10(a)(i) of Act, 1954 against accused-revisionist. Accused-revisionist pleaded not guilty and claimed to be tried.

5. The trial proceeded. Complainant, PW-1, was cross examined under Section 246 Cr.P.C. Prosecution also produced PW-2, Rajiv Kumar Sinha, Clerk who stated that he was posted in the Office of Chief Medical Officer, Pilibhit in August’ 2002 and on 31.08.2002 an information through Letter dated 31.08.2002 duly signed by Dr. J.P. Yadav, Chief Medical Officer, Pilibhit was sent along with Public Analyst Report to accused-Revisionist through registered post to the effect that one Sri R.P. Gangwar has field a complaint against him in the Court. Trial Court concluded the trial holding accused-revisionist guilty of offences under Sections 16(1)(a)(ii) and 16(10(a)(i) of Act, 1954 and sentenced him to undergo six months simple imprisonment under Section 16(1)(a)(ii) and six months’ simple imprisonment and fine of Rs. 500/- under Section 16(1)(a)(i) of Act, 1954 vide judgment and order dated 10.01.2007. Thereagainst accused-revisionist preferred Criminal Appeal No. 2 of 2007 which has also been dismissed by means of impugned order dated 28.04.2007. Hence this revision.

6. Learned counsel for Revisionist submitted that Courts below have completely erred in law by failing to appreciate that documents filed by complainant with regard to sample collection were manipulated inasmuch in some papers sample was shows to have been taken on 22.05.2002 while in others it was shown to have been taken on 29.05.2002. It is submitted that this discrepancy leads entire story set up against revisionist, false and hence Revisionist could not have been convicted.

7. I find no force in the above submission. Trial Court has examined this aspect and has recorded a finding that Food Inspector due to some inadvertence has written 22.05.2002 but correct date is 29.05.2002. Revisionist himself has put date 29.05.2002 under his signature. Trial Court has also referred to signatures of accused with date on Exhibits-2 and 3. He has mentioned 29.05.2002 under his signatures. Therefore, a mistake by Food Inspector when other documents leave no manner of doubt that sample was taken on 29.05.2002 would not help Revisionist in any manner. This finding has also been recorded by lower Appellate Court and this is a concurrent finding of fact in respect whereto I do not find any perversity or misreading of documents.

8. It is then contended that Chief Medical Officer changed jurisdiction of R.P. Gangwar, Food Inspector though he was not competent. This aspect has been considered by Court below. Notification dated 28.02.1982 has been referred to whereby State Government delegated power to Chief Medical Officer to appoint Food Inspector to take sample in any area. Therefore, this argument also has no force.

9. Though a feeble argument was raised that procedure prescribed under Sections 10(2), 16(c), 17(a)(c) of Act, 1954 and Rule 18 of Rules, 1955 was not followed but when questioned as to in what manner the same was not followed, it is said that public witnesses at the time of taking sample were not procured. In this regard, I find from record that Food Inspector Sri R.P. Gangwar, PW-1, has clearly stated that he asked passersby and shop-keepers of nearby places in order to witness proceedings of taking sample but they refused to witness and put their signatures on the papers prepared on the spot. This has been held, sufficient compliance of requirement of public witness and in my view rightly. The reason is as under.

10. Section 10(7) of Act, 1954 reads as under:

Section 10(7)– Where the Food Inspector takes any action under clause (1) of 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.”

11. 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 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.

12. 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 of 1964. It was sought to argue that deletion means, if independent witnesses do not corroborate, action of Food Inspector in taking sample etc. shall vitiate Trial. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 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.

13. 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 Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6, 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, 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.”

14. 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 atleast 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 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.

15. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here 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.

16. Once 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 I am also fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93.

17. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial.

18. Court in State of U.P. Vs. Hanif, 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.

19. In the present case, I do not find anything from record that any effort was made by Revisionist to show or disprove the case of prosecution regarding calling of independent witnesses and their non-cooperation by refusing to give their names and addresses etc.

20. Lastly it is contended that it is an old matter of 2002 and, this revision is pending since 2007 therefore, Court may take a lenient view by reducing punishment. I find that it is a serious case where Arhar Dal has been found adulterated with 12 per cent Kasari Dal mixed therein. Kasari Dal is prohibited for human consumption under Rules 44A of Rules, 1955. It is a serious thing. Adulteration of food articles causes serious consequences to health of public at large. It is an offence which is not committed vis-a-vis an individual or two or three person but entire community suffers which consumes such adulterated food. This is a serious matter and cannot be dealt with in a casual fashion. People who can dare to adulterate food articles must be dealt with very severely.

21. 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 adulterated pulse 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 intaking is alright. The adulterators, therefore, do commit a much heinous and serious crime to the Society as a whole and deserve no sympathy.

22. 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.

23. Moreover, in the matter of awarding punishment multiple factors have to be considered by this Court. The law regulates social interests, arbitrates conflicting claims and demands. Security of individduals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of the offence. Sentencing process should be sterned so as to give a message to the offender as well as the person like him roaming free in the society not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner irrespective of time lag.

24. Further sentencing process should be sterned but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above.

25. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254, the Court confirmed that:

“any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system”. (Emphasis added) 26. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that: “It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.” 27. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, the Court said that: “The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored.” 28. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the court said that: “Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence” 29. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516, the Court observed that: “We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment”. (Emphasis added)

30. The revisionist has not shown that punishment, awarded by Court below, is unjust, arbitrary or otherwise illegal. However, what it is trying to take advantage is that the act of the Court should come to his rescue inasmuch as it is this Court which has taken about one decade in taking up this revision and this should come to rescue of the revisionist for making reduction in punishment drastically though otherwise what has been done by the Court below cannot be said per-se illegal, unjust or improper. It is well settled that the act of the Court shall prejudice none. The failure of this Court in taking up these matters within the reasonable time should not become a hand to the offender like present one to claim reduction in the punishment as a matter of right ignoring the fact that the society requires that an offender should be punished adequately and over the above the victim, who has suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner, I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court.

31. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

32. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

33. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

34. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

35. In Duli Chand Vs. Delhi Administration, 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.

36. In Pathumma and another Vs. Muhammad, 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.

37. In Munna Devi Vs. State of Rajasthan and another, 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.”

38. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 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.”

39. In view of the above discussion, I am clearly of the view that no interference is called for in this revision in any manner.

40. The revision lacks merit. Dismissed.

41. The accused, Abdul Wahid, is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodged in jail to serve out the sentence passed against him. The compliance shall be prepared within two months.

42. Certify this judgment to the lower Court immediately.

Dt. 22.02.2017 PS

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