There is a provision of
minimum sentence for the offence committed by the
applicant. The learned counsel for the applicant has placed
his reliance upon the judgment of the Single Bench of this
Court in the case of Nanhelal (supra) to show that due to
delay, the statutory minimum sentence may not be passed.
By perusal of that order, there is no specific reason
mentioned by the Court to show as to how the minimum
prescribed sentence may be relaxed. In the revision
petition, the rights of this court are limited. The court can
exercise the rights which are available to the trial Court. It
is to be seen before this Court as to whether any legal
mistake has been committed by the trial Court as well as
the Appellate Court. If an order defeats the statutory
provisions of a particular enactment, then that order cannot
be considered as a precedent It may be an order for a
particular case, but it cannot be applied as a precedent in
the present case. Therefore, the order passed in the case of
Nanhelal (supra) cannot be considered as a precedent in the
present case. In the case of Paramjit Singh (supra)
Hon'ble the Apex Court has given benefit of probation to the
accused, but due to factual difference, such type of benefit
cannot be given to the applicant.
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
SB: HON. SHRI N.K.GUPTA,J.
CRIMINAL REVISION NO.188/2003
Basant Rao.
Vs.
State of Madhya Pradesh.
Citation;2014(2) crimes 378 (M P)
(Passed on the 2nd day of April, 2013)
The applicant was convicted for commission of
offence punishable under Section 7(1) read with Section
16(1)(A)(ii) of the Prevention of Food Adulteration Act, 1954
(hereinafter referred to as “PF Act, 1954”) and sentenced
for
six
months'
Rs.1000/-,
rigorous
imprisonment
with
fine
of
by the Chief Judicial Magistrate, Betul vide
judgment dated 19.9.2002 in Criminal Case No.437/1991. In
Criminal Appeal No.88/2002, the learned Sessions Judge,
Betul vide judgment dated 5.2.2003 dismissed the appeal of
the applicant in toto. Being aggrieved with the judgments of
both the Courts below, this criminal revision is preferred by
the applicant.
2.
Prosecution's case, in short, is that on 20.1.1991
at about 9:00 AM in the morning the Food Inspector Achal
Singh (PW-2) went to inspect the various edible vendors at
Bus Stand Betul. At that time the applicant came with three
cans on his bicycle filled with milk. On enquiry he had
informed that it was a mixed milk of cow and buffalo. After
checking all the cans the Food Inspector proposed to take
the sample of milk from one can having 10 liters. of milk.
Thereafter the sample was taken and it was distributed in
three dried, clean and odorless bottles and 20-20 drops of
formalin were added. The sample was duly packed and the
slip of the Local Health Authority was affixed on each part.
One part of the sample was sent to the Public Analyst
whereas two parts of the sample were deposited in the
office of Local Health Authority. The Public Analyst vide his
report
dated
25.2.1991
found
that
the
sample
was
adulterated. The complainant obtained a permission to file a
prosecution from the Deputy Director Food and Drugs
Administration and thereafter a complaint was filed on
7.5.1991 and a notice under Section 13(2) of the PF Act was
given to the applicant. It was mailed by registered post on
13.5.1991. The applicant did not apply for analysis of the
sample by the Central Food Laboratory.
3.
The applicant-accused abjured his guilt before the
trial Court. He took a specific plea that he was taking the
milk for one Navange Babu, therefore he purchased the
milk from Gulab Dhore for Navange Babu. In defence one
Keshav Rao was examined.
4.
The learned Chief Judicial Magistrate, Betul tried
the matter in summary manner and after considering the
evidence adduced by the parties convicted and sentenced
the applicant as mentioned above and the appeal filed by
the applicant was dismissed in toto.
5. I have heard the learned counsel for the parties.
6. The
learned
counsel
for
the
applicant
has
challenged that the Food Inspector did not mix the milk of
all the cans. He took the sample from one can only, that was
violative to the rules. Similarly, the bottles were not packed
properly, though those should have been packed in a proper
manner, and therefore the Food Inspector did not comply
the Rule 16(b) of the PF Rules, 1985. In support of his
contention, he has placed his reliance on the judgment of
the Single Bench of the Gujrat High Court in the case of
“State of Gujarat Vs. Prajapati Amratlal Natvarlal”,
(2008 Cri.L.J. 4065). It is also submitted that the
provisions of Section 13(2) of the PF Act were not properly
complied. In support of his contention, he has placed his
reliance upon the judgments of this Court in the case of
“Satish Vs. State of Madhya Pradesh”, [2007(1) MPHT
120] and in the case of “Mohd. Maksud Vs. State of
Madhya Pradesh” [2005(3) MPLJ 147]. Therefore it was
submitted that the applicant could not be convicted for that
particular offence. In the alternate, it was submitted that
the applicant has faced the trial, appeal and revision since
4
the year 1991, therefore he may not be sent to the jail
again. The learned counsel for the applicant has placed his
reliance upon the judgment of Hon'ble the Apex Court in the
case of “Paramjit Singh Vs. Municipal Corporation of
Delhi”, (AIR 1982 SC 1095) and the order passed by the
Single Bench of this Court in the case of “State of Madhya
Pradesh Vs. Nanhelal” (1993 MPLJ 345).
7.
On the other hand, learned counsel for the State
has supported the impugned judgments of the Courts below.
He submits that the conviction and sentence directed by the
Courts below are based on sound reasonings and no
illegality or perversity is visible in the impugned judgments.
He further submits that the delay has been caused by the
applicant himself, and therefore he could not get the
advantage
of
the
delay,
hence
his
revision
may
be
dismissed.
8.
By considering the evidence adduced by the Food
Inspector Achal Singh (PW-2) and Nena Yadav (PW-1), it
appears that the sample was taken by the Food Inspector
from the applicant in a proper manner and the sample was
properly sealed. The learned counsel for the applicant has
submitted that the sample was taken from one can only,
whereas entire milk of three cans must have been mixed. It
is apparent that the applicant was to supply the milk to the
consumers from each of the cans separately, and therefore
it was not necessary for the Food Inspector to mix the milk
of all the cans. The milk which was kept in one can was kept
for sale, and therefore if the Food Inspector chose to take
sample from that can, then it was his choice, hence no
illegality has been done by the Food Inspector if he did not
mix the milk of other two cans. The applicant tried to show
that the milk was not for the sale and he was taking the
same for one Navange Babu. However, Navange Babu was
not examined in the defence to say that the applicant was
his employee and he was bringing the milk from one Gulab
Dhore for his personal purposes. The statement given by the
witness Keshav Rao (DW-1) is not acceptable, because he
could not show his connection either with Gulab Dhore or
with
Navange
Babu.
Under
such
circumstances,
the
applicant was taking the milk for sale.
9.
It is alleged by the learned counsel for the
applicant that the sample was not taken in a proper manner
and hence there was a violation of Rules 16(b) of the PF
Rules. According to that Rule, if the sample is taken in a
bottle or jar, then it should be sealed on ends and wrapped
in thick brown paper and ends of the paper should be folded
and affixed by means of gum or other adhesive. Thereafter a
proper slip of the Local Health Authority must be affixed.
The Food Inspector Achal Singh has proved that he adopted
the same method and then one part of the sample was sent
to the Public Analyst, who found the sample intact in a
sealed condition, whereas the remaining two parts of the
sample were not requisitioned before the Court to show that
they were not packed properly, and therefore it is not
proved that the Rule 16(b) of the PF Rules was not
complied. In the case of Prajapati Amratlal (supra) the
Single Bench of the Gujrat High Court found that the ends
of the paper in the sample were not clearly folded and the
sample was not packed according to the rule, but such a
situation could not be proved in the present case. Therefore
the judgment of the Gujrat High Court is not applicable in
the present case.
10.
So far as the notice under Section 13(2) of the PF
Act is concerned, the copy of the notice Ex.P-14 is produced
before the Court, which was given on 9.5.1991 and postal
receipt Ex.P-15 is also submitted by which it would be clear
that notice was sent by registered post on 13.5.1991. The
sample was taken on 20.1.1991, and therefore notice was
given within four months of the sample taken. Under such
circumstances, it cannot be said that the provisions of
Section 13(2) of the Act were not followed. According to the
provisions of the General Clauses Act, it shall be presumed
that the notice which was dispatched by registered post was
received by the applicant, and therefore it cannot be said
that the Investigation Officer violated the provisions of
Section 13(2) of the Act. Therefore, the orders passed by
the Single Bench of this Court in the case of Mohd.
7
Muksud (supra) and in the case of Satish (supra) cannot
be applied in the present case due to factual difference.
11.
On the basis of the aforesaid discussion, it was
found that the Food Inspector took the sample from the
applicant in a proper manner. A notice under Section 13(2)
of the PF Act was given to the applicant, but he did not
apply for analysis of the sample from the Central Food
Laboratory. According to the report of the Public Analyst, in
the sample in question, percentage fat was found 4%,
whereas percentage of solid not fat was 5.96%. According
to the Article A.11.01.11 of the Appendix B of the Act, 1954,
it would be clear that for mixed milk the percentage of fat
and solid not fat should be 4.5 and 8.5 respectively in the
State of Madhya Pradesh, and therefore the sample in
question was found adulterated. Under such circumstances,
the learned CJM as well as the Appellate Court have rightly
found
that
the
applicant
sold
adulterated
milk,
and
therefore both the Courts below have rightly convicted the
applicant for the aforesaid offence.
12.
So far as the sentence is concerned, it is true that
the applicant has faced the trial, appeal and revision since
the year 1991. His revision is pending since the year 2003.
However, the delay has been caused by the applicant
himself. If he would have requested, then his revision could
have been heard at the earliest. There is a provision of
minimum sentence for the offence committed by the
applicant. The learned counsel for the applicant has placed
his reliance upon the judgment of the Single Bench of this
Court in the case of Nanhelal (supra) to show that due to
delay, the statutory minimum sentence may not be passed.
By perusal of that order, there is no specific reason
mentioned by the Court to show as to how the minimum
prescribed sentence may be relaxed. In the revision
petition, the rights of this court are limited. The court can
exercise the rights which are available to the trial Court. It
is to be seen before this Court as to whether any legal
mistake has been committed by the trial Court as well as
the Appellate Court. If an order defeats the statutory
provisions of a particular enactment, then that order cannot
be considered as a precedent It may be an order for a
particular case, but it cannot be applied as a precedent in
the present case. Therefore, the order passed in the case of
Nanhelal (supra) cannot be considered as a precedent in the
present case. In the case of Paramjit Singh (supra)
Hon'ble the Apex Court has given benefit of probation to the
accused, but due to factual difference, such type of benefit
cannot be given to the applicant. Though, the present
applicant has faced the trial, appeal and revision for a
lengthy period, however, looking at his overt-act, there is no
reason by which the statutory provisions of minimum
sentence
given
in
the
Act
should
not
be
adopted.
Consequently, nothing can be done in the sentence directed
by both the Courts below.
13.
On the basis of the aforesaid discussion, the
present revision filed by the applicant cannot be accepted.
Consequently, it is hereby dismissed. The conviction as well
as the sentence directed against the applicant is hereby
maintained.
14.
The applicant is on bail, therefore he is directed
to surrender before the trial Court without any delay so that
his remaining jail sentence may be executed. He will get the
period set off in which he remained in the custody during
the trial, appeal and revision.
15.
A copy of this order be sent to the trial Court as
well as the Appellate Court along with their records for
information and compliance. The trial Court is directed to
arrest the applicant without any delay and to send him to
the jail for execution of remaining jail sentence.
(N.K.Gupta)
Judge
02/04/2013
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