BERI, C. J. - (1.) MANDRUP son of Madho, resident of village Makhpura was convicted by the learned Municipal Magistrate, First Class, Ajmer by his judgment dated June 14, 1971 under Sec. 7/16 of the Prevention of Food Adulteration Act, and sentenced to three months' rigorous imprisonment, and to pay a fine of Rs. 1,000/-and in default thereof to undergo three months' rigorous imprisonment MANDRUP preferred an appeal before the learned Sessions Judge, Ajmer, but without success. He is now before me seeking revision of order of the learned Sessions Judge, Ajmer passed by him on January 5, 1972.
(2.) THE facts of this case are somewhat unusual. On April 9, 1969, Food Inspector K D Wadhwani purchased 660 M. L. of cow's milk from one person, who gave out his name as Madhoo son of Amba Gujar, resident of Makhupura. This name was recorder in the form Ex. P-l and also in form Ex. P-2. THE said sample of milk was sent for analysis, and it was found not to be conforming to the standard of purity prescribed under the Prevention of Food Adulteration Act. 1935 due to the low percentage of solid non-fat (29% water) A complaint was lodged on 29/30-4-1969. which was given No. 4095/1969. A bailable warrant was issued against the accused for his appearance on 21-5-69 This warrant could not be executed on 21-5 69, 12-6-69, 7-7-69, 26-769, 21-8-69, 12 9-69, 15-10-69,. 30-10-69, 14-11 69, 6 12-69 and 26-12-69 On December 26, 1969 Madhoo son of Salla appeared and he stated that his father's name is not Amba, and, because, the Presiding Officer was on leave, the case was adjourned to 27-12-1969. THE statement of Madhoo s/o Salla was recorded, and the witnesses present in the Court did not identify him as the person from whom the sample of milk was taken, thereupon it was ordered that the case be taken upon 17-1-1970, and bailable warrant in the sum of Rs. 1,000/- be issued against the correct person; and Madhoo son of Salla was set free (Riha kiya gaya ). On 17-1-1970, the correct accused was not present nor he was present on 5-2-1970. He appeared for the first time on 21-2 1970,and his bond and bail in the sum of Rs. 2,000/- was taken. THE case was then adjourned to 13-3-1970, on which date, the learned counsel for the accused Mandrup son of Madhoo wanted time, and the case was adjourned to 9-4-1970, but nothing transpired on that day, and the case was adjourned to 16-4-1970. THE proceedings of that day have been very much emphasised before me, and, therefore, I would in the interest of exactitude, like to reproduce them. ,e ih vkbz gkftja eqyfte eu:i e; odhy gkftja ,e ih vkbz us nj[kklr is'k dh fd eqyfte dk uke blrxklk esa xyr fy[kk x;k gs vksj blrxklk xyr uke ls is'k fd;k x;k gsa vr% blrxklk nkf[ky nqrj fd;k tkos vksj lgh uke ls blrxklk is'k djus dh btktr nh tkosa After these proceedings, another case bearing No. 1972/70 was registered on a complaint presented by the MPI against the present applicant before me. Then the evidence of the accused was taken. Mandrup son of Madhoo was identified to be the person from whom the sample of milk was taken by the Food Inspector K. D. Wadhwani PW1, and motbir Ram Bux PW2. The statement of the accused, however, was that no sample was taken from him. The statement of Fingerprint Expert, Sultan Singh GW1 was recorded. He said that the thumb prints taken on Expl and Exp2 were not decipherable. The accused denied the entire transaction The learned Magistrate, however, came to the conclusion that the Fingerprint Expert tried to shield the accused, that the tatoo mark on the right forearm was disguised by some kind of a twig being tatooed thereon; that the accused had given his name falsely; and, because, the milk was not in accordance with the standard, therefore, he awarded the sentence, as I have indicated above, The learned Sessions Judge upheld the sentence awarded to the accused on the ground that in a case where the accused had formerly impersonated himself he was not entitled to any leniency. Mr. P. N. Mohnani, learned counsel for the applicant, argued before me that the applicant Mandrup son of Madhoo was not the person who had sold the sample; and that there was some confusion about the identity of the accused. But when I looked at the thumb impression on Ex. P1 and Ex. P2, I felt that at least one of them was fairly readable; and, in the interest of justice and to exclude all possibilities of an innocent man being punished on wrong identity, I ordered for the examination of a Fingerprint Expert from Jaipur on 25-11-74. On 10-12-1974, Shri Parmeshwar Nath Tankha CW/2 appeared before me; and he examined the fingerprints of the applicant on Ex. P1 and Ex. P2 and also the sample of prints taken from the accused applicant before me and opined that the fingerprint on Ex. P2 evidencing the sale transaction did contain sufficient ridge characteristics for identity. He compared the fingerprint on Ex. P2 with the samples of the fingerprints that were taken in my presence, of the accused applicant. Mr. Parmeshwar Nath Tankha expressed the opinion that they were of the same person, and there was a conclusive identity on account of eight ridge characteristics. The accused did not want to lead any evidence, nor did he want to add to his earlier statement. Mr. Mohanani's first contention is that as the ri**ges cannot be counted from the delta to the core, the identity of the applicant cannot be conclusively co-related with the Ex. P2. I am, however, unable to agree with this contention. Shri Parmeshwar Nath Tankha has been working as Fingerprint Expert since 1963, and he had received 3 years traning in Calcutta on the subject. He has cited authority for his opinion. I am satisfied that the comparison of the ridge characteristics, if they are large in number are sufficient for identification of the thumb impression. I have no doubt left in my mind that the accused applicant before me is that very person from whom the sample was taken on payment of money as per Ex. P2; and it is false for him to say that he had nothing to do with the transaction. The accused has been consistently saying that his name is Mandrup S/o Madhoo; but the name he had given out in Ex. P1 and Ex P2 to the Food Inspector was Madhoo S/o Amba and it was clearly an endeavour to trick out of the transaction by giving wrong name and parentage Mr. Mohnani's next submission is that the proceedings dated 16 4-1970, which I have deliberately extracted above, amount to the withdrawal of the complaint u/s. 7/16 of the Prevention of Food Adulteration Act; and if it is so, then a second complaint is barred by the provisions of S. 403 of the Code of Cr. P. , 1898. In support of this contention he placed reliance on Municipal Corpn. Delhi vs. Lekhraj 1), which is a case of Punjab High Court at Delhi. Literally translated the order of 16-4-1970, means nothing more than this that as the complaint was presented with a wrong name of the accused, therefore, it was ordered to be filed, and the Municipal Prosecuting Inspector was permitted to file a fresh complaint. I assume for The sake of argument that the withdrawal of a complaint, and filing a fresh complaint in regard to the same transaction may be hit in some cases by the provisions of sec. 403 of the Code of Cr. Procedure ; but the question which confronts me for an answer is whether I would be justified in considering the proceedings dated 16 4-70 as one amounting to withdrawal ? My answer to this question is in a firm negative. Ordinarily, the word withdrawal is equal to the Hindi expression "vapis lena". No such words have been employed in the proceedings of that day. All that was sought was that on account of the wrong name, the complaint may be ignored; and it was accordingly filed. The Punjab case is clearly distinguishable. In that case, a complaint was filed before the Municipal Magistrate by the Food Inspector. The language employed was, as the complainant withdrew the complaint, and did not want to proceed with it, the accused was accordingly acquitted in that case, and later on another complaint against the same accused was presented on the same facts It was held by the learned Judges that the doctrine of "autre Fois Acquit" applied. Two ingredients are clear in the Delhi case. There was an unequivocable withdrawal of the complaint; and secondly, there was an unambiguous acquittal of accused, and no reason was given by the counsel why it was being withdrawn. It was submitted in the High Court that the earlier withdrawal was due to some technical defects, because there was a change of Delhi Municipal Committee becoming Municipal Corporation; but the learned Judges did not accept this argument because no such reason was advanced at time of withdrawal. Even if I were to assume that the complaint covered by Case No. 4095/1969 against Madhoo was withdrawn and the order dated 16-4-70 amounts to a withdrawal, then too no case against Mandrup son of Madhoo was withdrawn, and the doctrine of "autre fois acquit" would not apply to such a case. Mr Mohanani's repeated emphasis was that we connot forget the fact that on 16-4 70, Mandrup son of Madhoo was also present before the Court, and his bail bonds were taken. So the person who was discharged or acquitted (again assuming) on 16-4-1970 was the applicant Mandrup, because Madhoo son of Salla was already set free on 17th December, 1969. This argument, if I may say so, is as ingenious as it is incorrect. The reason is that there was no case pending against Mandrup son of Madhoo before 16 4-1970, and it was registered as case No. 1972/1970, and all that the Magistrate did was to have taken his bail-bnds, and because he appeared after such a long waiting. The effect of his presence would not be to relate the complaint in case No. 4095/1969 to him, because, the name of the accused given therein did not apply to him. It will be ironical indeed if the doctrine crystallised in sec. 403, Cr. P. C which is a safeguard against the agony of double jeopardy, is permitted to be utilised to shield a person who tried to dodge the arm of law by impersonation which necessitated the calling of wrong person. Neither in spirit nor in substance the doctrine of autrefois acquit applies in this case.
(3.) THE next argument of Mr. Mohnani is that it was a case of very low percentage in solid not fat, and is not so serious as to warrant substantive sentence for a first offender, particularly when the transaction took place in 1969. THE learned Sessions Judge declined to reduce the sentence on the ground that a person who holds out a false name deserves no leniency. Probably, it was this wrong which was responsible for the dragging of all the proceedings from 1969 to 1970; and, now an advantage is sought to be taken on the basis of a wrong committed by the accused Having regard to all the circumstances, I decline to interfere on the question of sentence. This revision petition is dismissed. .;