Dori Lal Vs State of U.P.

Aditya Nath Mittal, J.@mdashHeard learned counsel for the revisionist, learned A.G.A. and perused the record.

This criminal revision has been filed against judgment and order dated 13.6.2002 passed by Additional Sessions Judge, Court No. 3, Bulandshahar in Criminal Appeal No. 29 of 1993, by which the conviction and sentence passed by Additional C.J.M., Bulandshahar by order dated 31.3.1993 has been upheld.

Learned counsel for the revisionist has submitted that there was no compliance of provisions of Section 13(2) of Prevention of Food Adulteration Act and the revisionist has not been served with any notice. It has also been submitted that the report of Public Analyst was received after a period of five months which has adversely prejudiced the rights of revisionist. Learned counsel for the revisionist has further submitted that learned Court below has failed to consider the evidence on record and the revisionist is a labour class person.

Learned A.G.A. has defended the impugned orders.

2. It was alleged that on 10.8.1987 at about 10:00 a.m., the revisionist was found selling Ice-cream which was alleged to be made by milk and sugar. The Food Inspector after his introduction asked for license which was not shown. Upon suspicion of adulteration, 400 gm. ice-cream was purchased from the accused and notice Form-6 was executed. After performing the formalities, the ice-cream was sent to Public Analyst. The Public Analyst had submitted the report that the ice-cream was adulterated. After obtaining the prosecution sanction, a complaint before the A.C.J.M., Bulandshahar was submitted. After recording the evidence and hearing the accused, learned A.C.J.M. came to the conclusion that accused is guilty for the offence punishable u/s 7/ 16 of Prevention of Food Adulteration Act and thereby convicted him for one year rigorous imprisonment alongwith fine of Rs. 2,000/-.

3. This judgment was challenged in Criminal Appeal No. 29 of 1993, whereby the learned Additional Sessions Judge confirmed the order of A.C.J.M. but reduced the sentence to six months rigorous imprisonment and Rs. 1,000/- as fine.

4. Learned counsel for the revisionist has relied upon Sita Ram v. State of U.P., 2001 (42) ACC (H) 6, Arshad v. State of U.P., 2001 (42) ACC (H) 12 and Vijai Kumar v. State of U.P., 2001 (42) ACC (H) 15, in which this Court has recommended to the State Government to commute the sentence of simple imprisonment for fine under the provisions of Section 433(b) Cr.P.C. Learned counsel for the revisionist has further relied upon Narain Prasad v. State of U.P., 2001 (42) ACC 300, in which the accused was acquitted by extending him the benefit of doubt.

5. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a 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.

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.

6. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon''ble Supreme Court in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.

7. Hon''ble the Apex Court in Jagannath Choudhary and Others Vs. Ramayan Singh and Another, , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi v. State of Rajasthan and others" AIR 2002 SC 107, it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do.

8. Hon''ble the Apex Court in State of Karnataka Vs. Appa Balu Ingale and others, , has held that generally speaking, concurrent findings of fact arrived at by two Courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner.

9. The plea of Sections 10(7) and 13(2) was taken in the trial as well as in the appeal and both the Courts below have come to the conclusion that the public witness namely Chandrapal was present at the time of taking of the sample, therefore, the provision of Section 10(7) has been complied with. As far as the compliance of provision of Section 13(2) is concerned, the report of public analyst was sent to the accused but the accused has not applied for sending the sample for further analysis, therefore, there was no violence of provisions of Section 10(7) or Section 13(2) of Prevention of Food Adulteration Act.

10. Learned Court below have considered all aspects of the matter and have come to the conclusion that there were no latches on the part of prosecution and the case was proved beyond doubt. In the statement u/s 313 Cr.P.C., the accused has denied the total proceedings but has not alleged that why he has been implicated. By the evidence, it is proved that the Food Inspector, after giving his introduction has taken sample of ice-cream from the accused by paying amount of ice-cream. It was also proved that after preparing the papers on the spot, the purchased ice-cream were sealed in the clean container and was sent for analysis. In the analysis, the public analyst has found the sample to be adulterated and accused was found guilty for the offence punishable u/s 7/ 16 of Prevention of Food Adulteration Act.

11. As far as the law cited by learned counsel for the revisionist regarding recommendation to commute the sentence u/s 433(b) Cr.P.C. is concerned, it has been held in 2000 ALJ 1939 and Sohan Singh alias Swaran Singh Vs. State of Uttar Pradesh, that a conviction for sale of adulterated milk in which minimum sentence of imprisonment has been passed cannot be altered into fine only, however, it can be altered into simple imprisonment.

12. The minimum sentence provided u/s 7/ 16 Provisions of Food Adulteration Act is imprisonment for six months and Hon''ble the Apex Court in Narendra Champaklal Trivedi Vs. State of Gujarat, , 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 amounts to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act relating to demand and acceptance of bribe. Further in A.B. Bhaskara Rao Vs. Inspector of Police, CBI, Visakhapatnam, , the contention for reduction of sentence below the statutory minimum have been categorically rejected.

For the facts and circumstances mentioned above, I do not find any error of law in the impugned orders. Learned Court below have taken into consideration all aspects of the matter and have appreciated the evidence in a proper way. The findings are based on cogent reasons supported by evidence on record.

There is no ground to interfere with the impugned orders. The revision is dismissed.

It has been reported that in compliance of order of this Court dated 22.1.2013, the revisionist has already been arrested on 17.2.2013 and is in jail. Because the revisionist is already in jail, therefore, he need not surrender. The revisionist be released from jail after completion of period of imprisonment as awarded by Appellate Court in Criminal Appeal No. 29 of 1993.

Office is directed to send back the lower Court record, at an early date.