- (1.) S. K. Agarwal, J. This revision arises out of an order of conviction passed against the applicant by the Special Judi cial Magistrate 1st Class (Economic Offen ces), Azamgarh, on 22-3-1983 in Criminal Case No. 724 of 1981. He was convicted under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act') and was sentenced to six months' RI with a fine of Rs. 1,000. His appeal too was dismissed by the learned 111rd Additional Sessions Judge, Azamgarh on 17-8-1984 and the convic tion and sentence were confirmed.
(2.) BRIEFLY stated the facts of the case are that the applicant was found selling Dhania (coriander seeds) and other edible condiments at his shop. The Food Inspec tor, Sri Parag Dutt, visited his shop on 15-10- 1980 at about 1. 00 p. m. The sample of Dhania was taken and 450 gm. of Dhania was divided into three parts and sealed in clean and dry phials. It was sent for analysis of the Public Analyst, whose report dated 12-10-1982 shows that the sample was found adulterated. It was found containing 12 per cent extraneous matter, which was beyond the permissible limit of 3 per cent. The prosecution examined in support of its case, Parag Dutt, Food Inspector, Ram-raj, Sanitary Supervisor and the Food Clerk of CMC's office, Chandrma Rai. The applicant denied the charge. He denied in his statement under Section 313, Crpc even the taking of sample from his shop on the date in question by PW 1 Parag Dutt. He further stated that he was challaned on account of previous enmity with the Food Inspector. He did not ad duce any evidence in his defence. It has been argued before this Court that there is absolutely no compliance of the provisions of Section 10 (7) of the Act. The documents as well as the evidence do not show that any public person, as required under the above section, was called as wit ness by the Inspector. It has come in evidence by the witnesses, P Ws 1 and 2 that customers were present when the sample was taken, yet none of them were asked to become the witness of the fact of taking of sample. This argument it is not available. Although the requirement of law is that he will call one or more persons to witness the taking of sample, but mere non-com pliance of this provision will not entitle the applicant to acquittal. The Food Inspector was accompanied by a Sanitary Supervisor, PW 2. No malice or enmity has been al leged. He has admitted his signatures on all the papers. His only defence is that his signature was obtained at the Roadways. It is beyond comprehension that if no sample was taken from him, why and how has he signed all these papers. No doubt the lacuna of not taking independent witness is very much there but in the absence of any malice or enmity with Ramraj, PW 2, the benefit cannot be extended to the ap plicant on this failure. It has further been argued before this Court that there is no compliance of the provisions of Section 13 (2) of the Act. The prosecution in this case apparently was instituted on 12- 3-1981. The letter was prepared on that very date for informing the applicant along with report of the Public Analyst that he can get his sample analysed by the Central Food Laboratory. For this purpose he has to make as application within ten days from the receipt of the above intimation as well as the report of the Public Analyst. How ever, this letter was despatched only on 31-3-1981, i. e. about 19-20 days after if was prepared. It has been shown by the learned Counsel for the applicant that the postal receipt of sending the intimation brought on the record by the prosecution does not bear any date or seal of the Post Office. No doubt the employee of the office of CMO, viz. Chandrma Rai was stated in the Court that the letter dated 12-3-1981 was despatched on 31-3-1981. For the purpose he has filed a copy of the Register wherein at SI No. 4 this fact is mentioned. The requirement is that the information or intimation will contain the name of the Court also where the prosecution was instituted. There is no evidence in the case that such an information was also communicated to the applicant. The law re quires that this information shall be sent within ten days. It is admitted case of the parties that this information was sent after 19 days from the date of institution of the prosecution. Thus, apparently the com pliance of the provision of Section 13 (2) and Rule 9-Ahas not been made in its strict sense. A perusal of the standard prescribed for coriander (Dhania) as available from Rule A. 05. 08 the extraneous matter that includes dust, dirt, stones, lumps of earth, chaff, stalk, stem or straw, edible seeds of fruits other than coriander and insect damaged seeds shall not exceed 8 per cent by weight. By an amendment in this rule on 20- 9-1976 the amount of insect damaged matter shall not exceed 5 per cent by weight has been added. Earlier there was no such specification. This means that this insect damaged matter is permitted to be only upto 5 per cent. If deducted from 8 per cent by weight, the extraneous matter comes down to 3 per sent. In the present sample it has been found to contain such extraneous material upto 12 percent. Coriander is a primary food. Ac cording to provision to Section 16 (1), if an article of food, being a primary food, is found adulterated due to human agency then the sentence can be reduced to 3 months' RI and a fine of Rs. 500 instead of 6 months' RI and a fine of Rs. 1,000. This is the minimum sentence to be awarded. There is no evidence that this coriander sample which had been taken by the Food Inspector, was adulterated by any human agency. No doubt it can be inferred from the facts and circumstances. Nearly 19 years have passed since the sample was taken and over 16-1/2 years have passed since he was first convicted by the trial Court. His revision remained pending in this Court for nearly 15 years now. Under these circumstances. I feel that no useful purpose will be served in sending this ap plicant to jail for fewmonths. His appeal was dismissed on 17-8-1984 and he was enlarged on bail by this Court on 31-8-1984 after the admission of his revision. Thus, he had remained in jail after dismissal of his appeal for nearly 15 days. It must have taken him a day or two in coming out of jail.
(3.) THUS, in the circumstances dis cussed above, I feel it prudent to reduce the sentence of the applicant to the period already undergone. There is neither any evidence nor any finding that this adul teration was caused by any human agency. In the circumstances it will serve the pur pose if the fine of the applicant is en hanced to a sum of Rs. 5,000 in lieu of the remainder portion of the sentence. Learned Counsel for the applicant has no objection in this. Enhancement of fine will serve the purpose. No previous criminal antecedents are available. Accordingly, the revision is partly allowed. The sentence of the applicant is reduced to the period already undergone. He is directed to pay a fine of Rs. 5,000 within a period 01 two months from the date of receipt of a certified copy of this judgment. In case of failure to pay the fine within the stipulated period, referred to above, the applicant will undergo the original sentence awarded by the trial Court. Revision partly allowed. .;