Sunday, 6 September 2015

How to appreciate evidence of independent witness in food adulteration case?

Referring back to witness Shyam Lal, just because the Food Inspector-PW-3 knew Shyam Lal from one year prior to the incident, he cannot be termed to be an interested witness. Shyam Lal, PW-3 has specifically admitted that the sample was taken in his presence and the sample was sealed in his presence. Although he has said that the accused had no measuring instrument, but the factum that 660 ml milk was sold to the Food Inspector for Rs. 2/- itself goes to show that he had sold a definite quantity of milk to the Food Inspector. 
Case :- CRIMINAL REVISION No. - 898 of 1988 

Revisionist :- Ram Singh 
Opposite Party :- State Of U.P. 
Citation; 2015 CRLJ(NOC)396 ALL
Hon'ble Mrs. Ranjana Pandya,J. 

1. This revision has been preferred against the judgment and order dated 08.07.1988 passed by the IIIrd Additional Sessions Judge, Fatehpur in Criminal Appeal No. 16 of 1986 upholding the order of Special Magistrate, Fatehpur dated 19.02.1986 in Case No. 382 of 1986 convicting and sentencing the accused under section 7/16 of the Prevention of Food Adulteration Act to undergo six months' rigorous imprisonment and a fine of Rs. 1000/- with defaulting clause. 
2. Brief facts of the case are that on 07.12.1982 at about 10.00 a.m. Food Inspector Sri H.S. Bajpayee checked the accused Ram Singh on G.T. Road, Khaga. He was carrying 8 lts. of milk on his bicycle for sale. The Food Inspector introduced himself and gave a notice to the vendor Ram Singh and got a receipt of the notice duly signed by the accused. On suspicion of adulteration of the mixed cow and buffalo milk, the Food Inspector purchased 660 ml. of milk for analysis and paid Rs. 1.70/- for the same. He got payment receipt from the accused and got the signature of the witness also. He divided the milk and filled it equally in three clean, dry and empty bottles, added formaline as required under rules and pasted label on the sample. Thereafter the bottles were sealed. After this the sealed bottles were wrapped in paper and code was pasted. All the proceedings were done in the presence of the accused. One bottle of sample along with a copy of Form No. 7 was kept in sealed parcel and sent to Public Analyst, Varanasi on 08.12.1982 through registered parcel with the copy of Form No. 7 which contained specimen seal used in the sample which was sent separately to the Public Analyst, Varanasi. the remaining two bottles along with the copy of Form No. 7 were deposited in a sealed packet in the C.M.O. Office. The Public Analyst vide his report dated 24.01.1981 declared the milk to be adulterated as he found milk fat 9% and milk non-fatty solids 36% less than the prescribed standard. After receipt of the report of the public analyst the Food Inspector prepared a report and presented it alongwith all the relevant papers to the Chief Medical Officer for his sanction. The Chief Medical Officer perused the papers and sanctioned the prosecution and passed an order for filing complaint accordingly. The Food Inspector filed a complaint in the Court and sent copy of the report of the Public Analyst to the accused along with covering letter of the Chief Medical Officer under registered cover through the CMO Office. 
3. The witnesses under section 244 Cr.P.C. were examined. 
4. The charges were framed against the accused, who pleaded not guilty and claimed trial. 
5. Prosecution examined the Food Inspector Shri H.S. Bajpayee as PW-1, Ram Saran as PW-2, Chaudhary Ahad Yar, Clerk, CMO Office, Fatehpur as PW-3 and Shri S.P. Sahu, Food and Dispatch Clerk, CMO Office, Fatehpur as PW-4. 
6. The Food Inspector Shri H.S. Bajpayee was re-examined in the appellate court as CW-1. 
7. The accused in his statement under section 313 Cr.P.C. admitted his signature on Form No. 6 and also said that he received the report of the Public Analyst. 
8. After considering the evidence on record, the learned Magistrate found the accused guilty and convicted him as aforesaid. 
9. Feeling aggrieved the revisionist filed an appeal No. 16 of 1986, which was dismissed on 08.07.1988. 
10. Feeling aggrieved, the revisionist has come up in the revision. 
11. I have heard learned counsel for the revisionist and learned AGA for the State and perused the record. 
12. It is well settled law that the evidence in revision as far as it relates to the factual aspects cannot be reassessed as can be don in appeal because it will be beyond the jurisdiction of the revisional court, who reassessed the evidence. The Hon'be Apex Court in AIR 1999 SC 981 State of Kerala vs. Putthumana Illath Jathavedan Namboodiri has held that the High Court while hearing the revisions does not work as Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. Thus, it is well proved fact on record that the revisionist was engaged in selling milk. 
13. I have gone through the impugned judgment and also material on record. It is well settled position of law that the High Court will exercise its revisional power where there is material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 
14. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely. 
15. Thus, in exercise of revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. 
16. In another case reported in AIR 1993 Supreme Court 1126, State of Karnataka vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be inferred with by the High Court in absence of any special circumstances or unless there is any perversity. 
17. Considering the limited scope of revisional jurisdiction it is clear that the evidence recorded by the trial court and well discussed and appreciated by the Appellate Court is not required to be again re-appreciated on the point raised by the learned counsel for the revisionist. 
18. Counsel for the revisionist has also argued that compliance of section 7 has not been done, but there is nothing to substantiate his argument before this Court. 
19. Learned counsel for the revisionist has further argued that the compliance of rule 7 (3) of the Prevention of Food Adulteration Rules has not been done. 
20. Rule 7 sub-rule (3) reads as follows: 
"7. Duties of a Public Analyst.- 
"(3)The public analyst shall, within a period of [forty days] from the date of receipt of any sample for analysis, [send by Registered post or hand] to the Local (Health) Authority a report of the result of such analysis in Form III: 
21. If the above provisions are read carefully, it will mean that the public analyst shall send his report within 40 days to the Local Health Authority. The Local (Health) Authority has been defined in section 2 (viii)(a)of the Act, which reads as follows: 
" Local (Health) Authority", in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of Health administration in such area with such designation as may be specified therein; 
23. Now it is to be seen whether rule 7 (3) is directory or mandatory. 
24. In Maxwell on Interpretation of Statutes, Eleventh Edition, at page 362 it is suited as under: 
Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention; that is to say, such a requirement would be imperative. 
It is further stated on page 364 that: 
The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. 
When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative. In Craies' Statutes Law, Seventh edition at page 62 it is stated thus: 
When a statute is passed for the purpose of enabling something to be done and prescribed the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory. 
At page 250 It is further states thus: 
The question whether the provisions in a statue are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who/have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of acts done. In Dattatraya vs. State of Bombay it was held as under: 
Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the court to hodl such provisions to be directory only: the neglect of them not affecting the validity of the acts done. In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. May be, in a given case, if there is inordinate delay, the court may not attach any value to the report but merely because the time limit is prescribed, it can not be said that even a slight delay would render the report void or inadmissible in law. In this context it must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, Sub-section (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis inspite of the delay. Therefore, it must be shown that the delay has led to the denial of right conferred under section 13(2) and that depends on the facts of each case and violation of the time limit given in Sub-rule 3 of Rule 7 by itself can not be a ground for prosecution case being thrown out." 
25. In the context, the expression "immediately" is only meant to convey "reasonable dispatch and promptitude" and no more. The idea is to avoid dilatoriness on the part of the official and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence and the expression "immediately" means to convey the sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of statutory right as provided. 
26. In Craies' Statute Law, VIII Edn. at page 262 it is stated thus: 
"It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.... That in each case you must look to the subject-matter, consider the importance of the provisions and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. Likewise in State of Kerala and others vs. Allasserry Mohammed and others, Hon. Untwalia, J. speaking for the Supreme Court and while holding that Rule 22 of Prevention of Food Adulteration Rules is only directory, held that 'If the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance. 
Therefore, we are of the view that Rule 7(3) is only directory and not mandatory. No interference is called for in this appeal. It is accordingly dismissed." 
27. Thus, what has been said about the rules it has been concluded that there is no violation of rule 7 (3) which are only directory. 
28. It has been further argued that there is no independent witness in this case and the witness Shayam Lal, who is said to be independent is not independent witness as the Food Inspector, PW-1 has categorically admitted that he was known to the witness Shyam Lal one year prior to the incident. 
29. The provisions as far as independent witness is concerned, is given in section 11, which reads as follows: 
"11. Procedure to be followed by food inspectors.- (1) When a food inspector takes a sample of food for analysis, he shall- 
(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14A; 
(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed. 
Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person; 
30. Referring back to witness Shyam Lal, just because the Food Inspector-PW-3 knew Shyam Lal from one year prior to the incident, he cannot be termed to be an interested witness. Shyam Lal, PW-3 has specifically admitted that the sample was taken in his presence and the sample was sealed in his presence. Although he has said that the accused had no measuring instrument, but the factum that 660 ml milk was sold to the Food Inspector for Rs. 2/- itself goes to show that he had sold a definite quantity of milk to the Food Inspector. 
31. Both the courts below i.e. the trial court and the appellate court have given a categorical finding that the fact that the accused has no measuring instrument was not put to the Food Inspector, besides the courts below also found that Shyam Lal was an independent witness and I have no reason to interfere with this finding at all. 
32. The Hon'ble Apex Court in Narrendra Champak Lal Trivedi vs. State of Gujarat (2012) 7 SCC 80, has held that it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution to reduce the sentence on the ground of so called mitigating factors as that would tantamount to supplementing statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act. 
33. Further in A.B. Bhaskar Rao Vs. C.B.I. (2011) 10 SCC 259, the contention for reduction of sentence below the statutory minimum have been categorically rejected. 
34. Learned counsel for the revisionist has further argued that there is no evidence to show that the revisionist was going to sell the milk, but as I have said earlier that these points have been discussed by the trial court and the appellate court also. No enmity against the Food Inspector has been alleged. 
35. Learned counsel for the revisionist has placed reliance on un-reported judgment of this Court passed in Criminal Revision No. 771 of 1987 (Jasmat Alias Radhey Shayam), in which the judgment and order of the lower court was set aside and the accused was acquitted. The facts of this case are different from the facts of the present case because the accused in his statement has clearly admitted that he was supplied with copy of the Public Analyst report. He has further admitted that he had signed the sample of the milk. 
36. As far as the presence of independent witness is concerned, section 10 (7) reads as follows: 
"10. Powers of food inspectors:- 
"(7) Where the food inspector takes any action under clause (a) 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]. 
37. Perusal of Exh. Ka 1 shows that the Food Inspector has specifically mentioned that the other witnesses, who were present refused to give evidence on this point. It has nowhere been mentioned in the Act that in the absence of witnesses the evidence of the Food Inspector shall not be permissible. PW-2 Ram Saran has categorically supported the prosecution case. He has been subjected the lengthy cross-examination, but his version remained intact. He admitted that the code slip was pasted on the bottles but he does not remind the date mentioned. I think it has too much to accept a rustic witness to tell the dates after months of the occurrence. The occurrence is said to have occurred on 07.12.1982 and the statement of the witnesses recorded on 08.10.1983 more than three years after the occurrence and a natural witness is not expected to remember every minor detail and in fact if there are minor inconsistencies in the statement of natural witness, it would not be fatal for the prosecution. 
38. Thus, there is no illegality, irregularity or impropriety in the impugned order. The revision is devoid of merits and is liable to be dismissed. 
39. Accordingly, the revision is dismissed. 
40. Interim order, if any, stands vacated. 
41. Let the lower court record be sent back along with copy of this order for doing the needful. 
Dated :- 01.08.2014 
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