O.P.Pradhan - (1.) THIS revision by convict Hari Krishna Sharma is directed against the order dated 7.9.1983, passed by II Additional Sessions Judge, Lakhimpur Kheri in Criminal Appeal No. 113 of 1982 whereby the conviction and sentence,awarded to the revisionist, were affirmed by the learned Additional Sessions Judge.
(2.) THE facts leading to this revision lie in a brief compass. On 9.5.1978 at about 7.30 a.m. the Food Inspector, A.H.Khan accompanied by Municipal Health Officer, Dr. J.C.Gupta went to Govind Cold Storage, Lakhimpur and checked the Ice-candy and Ice-cream Machines, installed therein. THE revisionist was found present at the Cold Storage and told the Food Inspector that he was running machines on THEka and was manufacturing Ice-Cream and Ice-Candy and also selling the same. THE Food Inspector introduced himself and told him that he was purchasing 900 grams of Ice-Candy for the purpose of analysis by the Public Analyst. He accordingly purchased the said quantity of Ice-Candy from the revisionist and paid its price Rs. 1.50 to the revisionist and obtained a receipt from him. THE Food Inspector divided the Ice-Candy in three equal parts and filled up the same in three clean and dry bottles and added formalin in each bottle. After observing the necessary formalities, one of these bottles was sent to the Public Analyst for analysis. THE Public Analyst reported on 22.6.1978 that the sample was sweetened with saccharin, use of which is not permitted. After obtaining the sanction from the competent authority for prosecution of the revisionist, a complaint was filed by the Food Inspector in the Court of C.J.M. Lakhimpur Kheri. THE revisionist made a wholesale denial of the allegations, levelled against him. On a consideration of the evidence, adduced before him, the learned Judicial Magistrate (Economic Offences). Lakhimpur Kheri found the revisionist guilty under Section 7 (i) and sentenced him under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 to undergo six months' R.I. and pay a fine of Rs. 1000, in default to undergo three months' simple imprisonment. Feeling aggrieved by this decision, the convict carried an appeal to the Court of learned Sessions Judge. It was numbered as Criminal Appeal No. 113 of 1982 and was heard and dismissed by II Additional Sessions Judge, Lakhimpur Kheri, by means of the impugned order. Still dissatisfied, this revision has been preferred by the convict, Hari Krishna Sharma. I have heard the learned counsel for the revisionist as also the learned Additional Government Advocate and perused the record of the lower court. It has been contended by the learned counsel for the revisionist that there has been non-compliance of Sections 10 (7) and 13 (2) of the Prevention of Food Adulteration Act, 1954 and therefore, the revisionist stands prejudiced and consequently his trial is vitiated. He further submitted that the lower Courts did not analyse the evidence of the defence witness properly and have rejected his evidence on unreasonable grounds. On the other hand, the learned Additional Government Advocate has urged that proper compliance of Sections 10 (7) and 13 (2) of the said Act has been made and that the defence plea of the revisionist has been rightly rejected on cogent grounds by the lower courts.
(3.) SO far as non-compliance with Section 10 (7) is concerned, it has been contended on behalf of the revisionist that the signature of not even a single independent witness has been obtained on the memo of sample, taken by the Food Inspector. The memo of sample of the Ice-Candy is Ex. Ka-1. At the place, earmarked for the signature of the witness, signature of Dr. J. C. Gupta, finds place and it has been said by Dr. J. C. Gupta P.W. 2 during his evidence on oath that he had put his signature on this memo. Dr. J. C. Gupta was Municipal Health Officer at the relevant time and had gone with the Food Inspector to the Govind Cold Storage for the inspection. Even though he may be said to be not an independent witness, yet the fact remains that he had witnessed the collection of the sample of Ice-candy by the Food Inspector from the revisionist at the material time and place. It also appears from the evidence of Food Inspector, A. H. Khan, P.W. 1 and Dr. J. C. Gupta, P.W. 2 that some vendors of Ice-Cream were also present at the material time and place but they refused to figure as witnesses, nor did they disclose their names and addresses. It is also borne out from the evidence on record that Ice-Cream and Ice-Candy were manufactured in the Govind Cold Storage, whose inspection was made by the food Inspector and the Municipal Health Officer at the material time. It is easy enough to understand that the Ice-Cream vendors, who were present there might have felt bound by fraternal ties when they refused to co-operate with the Food Inspector who could not compel them to put their signatures or disclose their names and addresses. In these circumstances, the absence of signatures of the independent witnesses on the memo Ext. Ka 1 is easily understandable. Moreover, the Food Inspector is not as accomplice and if his evidence is worthy of acceptance, the same can be relied on for proving that the sample was taken as required by law. (See Babu Lal Hargovinddas v. State of Gujarat, 1971 (1) SCC 767). Both the lower courts have relied upon the testimony of Food Inspector, A. H. Khan, P.W. 1 and I also feel that there is nothing particular on record to discredit his testimony which has been rightly relied upon by both the lower courts. His testimony further finds support from the evidence on oath of Dr. J.C.Gupta, P.W. 2 for what has been said above, it cannot be said that there was non-compliance of Section 10 (7) at the hands of the Food Inspector. The contention, advanced on this score by the learned counsel for the revisionist, is not sustainable. With regard to the non-compliance of Section 13 (2), it has been urged that the intimation sent by registered post in compliance of Section 13 (2) read with Rule 9A did not reach the revisionist in the first place and secondly the intimation sent by the C.M.O. as per Ext. Ka 6 did not indicate the particulars of the case so as to provide an opportunity to the revisionist to check up the record and decide if he had to apply to the court to get the sample kept by the Local Health Authority analysed by the Central Food Laboratory. The evidence of Ambika Prasad Verma, P.W. 3, who was the food clerk in the officer of the Chief medical Officer, Lakhimpur Kheri, indicates that he had sent the intimation as per Ex. Ka 6 at the correct address of the revisionist by registered post, whose postal receipt is Ex. Ka 7. The address of the revisionist as given by this witness in his examination-in-chief tallies with the address of the revisionist, noted in the memo of the revision. The postal receipt Ex. Ka 7 indicates that it was sent by the registered post on 3.9.1979. Ambika Prasad Verma, P.W. 3 has further deposed that the registered envelope was not received back till he gave his evidence in Court. This evidence was given by him on 30.7.1982. In these circumstances, a presumption has to be raised in law that the intimation as per Ex. Ka 6 was delivered to the revisionist. His self-same denial during his examination under Section 313 Cr.P.C, about the receipt of such an intimation together with the report of the Public Analyst cannot be easily accepted.;