Dinesh vs State of U.P.

Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 19.7.2001 passed by Additional Sessions Judge, Court No. 4, Fatehpur in Criminal Appeal No. 30 of 1999 affirming the judgment and order dated 28.8.1999 passed by Additional Chief Judicial Magistrate, Fatehpur in Criminal Case No. 454 of 1996, where under the revisionist has been held guilty u/s 7(1)/16 of Prevention of Food Adulteration Act and sentenced to under go R.I. for six months and to pay fine of Rs. 1000/- and in default he has been further sentenced as provided in the judgment.

I have heard Shri R.B. Sahai, learned Counsel for the revisionist and learned A.G.A. for the Respondent on this revision and perused the record.

The learned Counsel for the revisionist has contended that there is no compliance of Section 10(7) of the Act and Rules 17 and 18 of P.F.A. Rules. It is further contended that the trial court first of all has started to try the case through summary procedure on 27.2.1997 but suddenly on 20.8.1998 the Magistrate adopted the procedure of warrant trial without giving any opportunity to parties, hence illegality was committed. No compliance has been made u/s 11(2) as both copies of Form No. VII were not sent along with the sample. Nothing has been mentioned in the report of public analyst that any formalin was mixed and no compliance u/s 13(2) of the Act has been made as P.W. 2 Parvej Ahmad has not proved the handwriting of Mohd. Ismail.

It is further contended that the date of birth of the applicant is 15.10.1980 and thus he was minor on the date of occurrence and entitled to get the benefit of Section 20AA of the Act, but no such benefit was given. There was clear violation of Section 248 of Code of Criminal Procedure as the applicant was not given an opportunity of hearing on the question of sentence and he was also not given any opportunity to prove his school leaving certificate, as he was below 18 years of age on the date of offence and thus he was entitled to get benefit of Section 20AA of the Act.

It would be pertinent to mention at this stage that the revisional court cannot record findings of fact, while concurrent findings of both courts have been recorded with respect to above points. A perusal of the record goes to show that the statement of revisionist u/s 313 of Code of Criminal Procedure was recorded on 6.8.1999 and the case was adjourned to 13.8.1999 for defence evidence and argument, while clear date for defence evidence should have been fixed and thereafter the case should have been adjourned for argument for next date. A perusal of order sheet dated 13.8.1999 goes to show that nothing has been mentioned as to whether the accused refused to adduce any evidence and without recording this fact the case was adjourned to 19.8.1999 for argument and on that date argument was heard by the trial court. Consequently it has been found that no fair opportunity has been afforded to the accused to lead defence evidence, while the revisionist has disclosed his age as 17 years on 6.8.1999, and the occurrence is alleged to have taken place on 5.6.1996 and thus the revisionist appears to be minor on the date of occurrence.

The learned trial court did not commit any illegality in trying the revisionist by adopting the procedure of warrant trial regarding which reasons were recorded in order sheet as well as in the judgment as provided in Section 16(A) Prevention of Food Adulteration Act. The learned Counsel for the revisionist could not establish as to how his right was prejudiced, as a result of his trial in this case by adopting procedure as warrant case.

There was no provision u/s 11(2) Prevention of Food Adulteration Act, that two copies of Form VII should have been sent simultaneously, while P.W. 1, G.P. Tripathi, Food Inspector stated that he sent a copy of Form VII with sample and sent another Form VII by registered post vide Exhibits Ka. 3 and Ka. 4. Under these circumstances this argument cannot be accepted that no compliance has been made u/s 11(2) of the Act. In view of the evidence on record it has been found that compliance has been made u/s 10(7) of the Act. It is not mandatory for public analyst to mention this fact in his report that any formalin has been mixed. The prosecution has proved compliance of Section 13(2) of the Act and sanction has been granted by competent officer by applying his mind. No merit is found in this revision and the same does not deserve to be allowed in view of foregoing discussions.

The case is very old of the year 1996 and the revisionist appears to be minor on the date of occurrence and thus a lenient view on the point of sentence is liable to be taken in the interest of justice. It would meet ends of justice, if the revisionist is sentenced to pay fine only instead of sentencing him to undergo R.I. for six months and fine both.

Consequently, this revision is partly allowed and sentence is reduced to this extent that the revisionist will pay fine of Rs. 1000/- only and in default he will undergo R.I. as provided in the judgments of the courts below.

Let copy of this order be sent to the court concerned for immediate compliance.