Vishwanath Prasad vs State of Uttar Pradesh

Kundan Singh, J.—Heard Sri G.C. Saxena, learned Counsel for the applicant and Shri Manphool Singh, learned A.G.A. for the State.

The above noted revision was admitted by this Court on 10th July, 1984. There is no prayer in the memo of revision for summoning the lower Court record nor any such prayer was made before this Court. There is no order of the Court for summoning the lower Court record that was necessary for deciding the case.

This case was taken up for-hearing on 26th November, 1997. The learned Counsel for the applicant submitted that in this case the lower Court record has not been summoned and requested for summoning the lower Court record. The lower Court record is necessary in all cases of appeal and revision, if they are admitted. He relied on the provisions of Section 397, Cr.P.C. wherein the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. u/s 401 of the Code of Criminal Procedure the High Court has power to examine the Court record which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386 389 390 and 391 or on a Court of Session by Section 307, Cr.P.C.

He also relied on the provisions of Rule 9, Chapter XVIII, Part III of Rules of the Court wherein it is provided that after notices have been issued in an appeal or revision, the record shall be sent for unless otherwise ordered. On the basis of the aforesaid provisions of Rules and Sections 397 and 401 of the Code of Criminal Procedure, once the notices are issued then it is obligatory on the part of the High Court to send for lower Court record and no revision can be heard without having lower Court record.

Learned Counsel for the applicant relied on a decision of the Supreme Court in Bachan Singh and Others Vs. State of Punjab, . Relevant portion is quoted below :-

There is another reason for this view. It was permissible for the High Court u/s 397, Cr.P.C. to call for and examine the record of the proceeding before the trial Court for the purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order, recorded or passed by that inferior Court. The High Court''s power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in Section 401, Cr.P.C. to which reference has been made above. That includes the power conferred on a Court of Appeal u/s 386 to enhance or reduce the sentence. So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers u/s 397 read with Section 401, Cr.P.C. and to make an order for the enhancement of the sentence.

He further relied on a decision of single Judge of Jammu and Kashmir High Court in Krishan Kaur Vs. Kartar Singh, , in support of his contention. Relevant portion is reproduced below :-

As regards the first contention of Mr. Goni that the Sessions Judge has no jurisdiction to go into the appreciation or evidence, it appears without any force. The Revisional Court has power to call for and examine the records of an inferior Court for the purpose of satisfying itself, as to the correctness, legality or propriety of any proceedings, or order made therein. Unless, it looks into the evidence, how can the revisional Court return a finding as to correctness, legality or propriety of an order or proceeding. If a patently erroneous and perverse order is passed by a trial Court, and appeal is provided for or against such order or finding, it becomes the bounden duty of the revisional Court to go into its correctness, legality, or otherwise, and do away with injustice, if any, having occasioned thereby. The power to interfere is discretionary and unfettered by limitation.

There is no controversy that the High Court has power to call for and examine the lower Court record of any .proceeding for the purpose of satisfying itself as to the correctness, legality or propriety of any proceedings or any finding, sentence or order but the issue in hand is whether the lower Court record is a pre-requisite element, for hearing of a criminal revision and the revision cannot be disposed of without having the lower Court record summoned though in the opinion of the Court the lower Court record is not in need or required for just decision of the case. In the present case this revision has come up for hearing latter twenty years from the date of incident, and it was pending since 1984, no prayer was made for summoning the lower Court record either at the time of presenting the revision or thereafter. It the notices are issued in revision, it is not necessary at all in all cases that the lower Court record must be sent for unless the Court considers its necessity for examining the same where the correctness of finding of lower Court is challenged. The powers of the Court in Criminal Revision are limited only to see the correctness, legality or propriety of any finding, sentence or order. The revision is not treated as appeal. The whole lower Court record is not examined as is (lone in appeal. Under Sections 397 and 401 of the Code of Criminal Procedure, in my opinion, it is not necessary in all the revisions that the lower Court record is must for hearing of the criminal revision where the findings of the lower Court have not been challenged; though the Court in its discretion in the revisional jurisdiction may call for and examine the Sower Court record in respect of correctness, legality or propriety of any finding, sentence or order where it is disputed on the basis of some material on record and the Court is satisfied that the lower Court record is needed and required, for just decision.

Rule 9, Chapter XVIII, Part III of Rules of the Court requiring availability of lower Court record in revision suo motu is only a directory and not mandatory. The intention of the Court is not that if any revision comes before the Court in which the notices have been issued to the other side, the .Court must call for the records of the inferior Court though it is not needed or required. The proceedings of the lower Court could be held up by summoning the lower Court record. The revisions are also entertained against the orders of intermediary nature. The learned Counsel failed to satisfy this Court for the need of the lower Court record. Accordingly I find no substance in the submission of the learned Counsel for the appellant.

Learned counsel for the applicant submitted that no standard has been provided for mixed rapeseed and linseed oil. The standard of rapeseed oil and linseed oil are provided in A. 17.06 and A. 1704 prescribed in the prescribed rules framed under the provision of Food Adulteration Act which are as follows :-

(A. 17.06 (Rapeseed oil (Toria oil) Mustard Oil (Sarson-ka-tel) means the oil expressed from clean and sound mustard seeds, belonging to the compestris, juncea or napus varieties of Brassica. It shall be clear, free from rancidity, suspended or foreign matter, separated water, added colouring or flavouring substances or mineral oil. It shall conform to the following standards :

(a) Butyro-refractometer reading at 40C : 58.0 to 60.5 (b) Saponification Value : 168 to 177 (c) Iodine value : (96 to 110) Polybromide test shall be nega- tive) (d) Unsaponifiable matter : Not more than 1.2 per cent by weight. (e) (Acid value : Not more than 6.0) (f) Bellier Test (Turbidity : 23.0 C to 27.5 Temperature-Acetic Acid C) method) (g) Test for argument oil : Negative (h) Test for Hydrocyanic : Negative acid

(A.17.04 -LINSEED OIL (Tisi-ka-tel): means the oil obtained by process of expressing clean and sound linseed (linum usitatissimum). It shall be clear, free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil. It shall conform to the following stands :-

(a) Butyro-refractometer : 69.5 to 74.3 reading at 40 C (b) Saponification value : 188 to 195 (c) Iodine value : Not less than 170 (d) Unsaponifiable metter : Not more than 1.5 per cent (e) (Acid value : Not more than 4.0)

Learned counsel for the applicant has relied on a case Ajodhiya Prasad v. State reported in 1977 All Cri 195, wherein this Court found that the report of Chemical Examiner shows that the mustard oil as such was up to the standard except this that the sample of mustard oil contained a very small quantity of linseed oil. The question then arose whether by mixing it with another edible oil it would become adulterated within the definition of that word in the Act. A mixture of mustard oil and linseed oil would be edible and if a seller represents such a mixture as pure mustard oil, it would be a case of cheating or deception and the Prevention of Food Adulteration Act would not be attracted. Mixture of two articles and selling as pure one article alleged to be pure comes within the purview of adulterated article as defined in subclass (ia) of Section 2, which is extracted below :-

"Adulterated".- an article of food shall be deemed to be adulterated (a) if the article is sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

Under Rule 44(e) of the Rules framed under the Prevention of Food Adulteration Act sale of a mixture of two or more edible oils as an edible oil is prohibited.

Decision relied on by the learned Counsel for the applicant contrary to the statutory provision is not good law and cannot be accepted.

Learned counsel for the applicant further submitted though the Food Inspector Surendra Singh is appointed and posted at Bardaha, but he took the sample from the applicant in Kopaganj Bazar, District Azamgarh; hence he had no territorial jurisdiction to collect the sample of any article in this respect. Learned counsel for the applicant relied on a decision of a single Judge in the case Hira Lal v. State of U.P. reported in 1981 All Cri 106, whereby the present Food Inspector was appointed u/s 9 of the Prevention of Food Adulteration Act was challenged and it was held by this Court that Dharam Deo Yadav was Food Inspector of Jahanaganj Block and that he was not Food Inspector, Doharighat area, where the sample was taken from the accused of that case and it was further held that Dharam Deo Yadav was not competent to take the sample of Mustard .Oil from the appellant and as such the appellant''s conviction could not be recorded.

In the present case, the appellate Court discussed the matter and observed that according to the notification note therefore Sanitary Inspectors appointed or posted in the Food Adulteration Mobile Units of the State from time to time as Food Inspector, are made competent to take sample for all the following local areas of the State declared as such "All (i) Cities, (ii) Municipalities (iii) Cantonments (iv) Notified area, and (v) Rural areas, which shall include town areas of the District of U.P.

Surendra Singh, Food Inspector, stated. in his statement on 22-11-1977, i.e. date of occurrence, he was appointed Food Inspector in the Food Squad to take sample from Kopaganj market. Nothing contrary was shown by the learned Counsel for the applicant. In view of the observation of the learned Sessions Judge in the appeal, I do not find any substance in the submission of the learned Counsel for the applicant.

Learned counsel for the applicant also pointed out that after the receipt of the report of Public Analyst, the other phial was sent to the Central Food Laboratory on his request. The Courts below have not dealt with the report of Central Food Laboratory as such the findings recorded by the Courts below are not sustainable. I have examined the papers. The learned Sessions Judge in appeal has made observation that the accused challenged report of Public Analyst and at his request another phial of the sample of rapeseed oil was sent to the Director, Central Food Laboratory, who, after examining the second phial of the sample, submitted his report. The trial Court in paragraph 14 mentioned that according to the Public Analyst report 23% linseed oil was mixed in the rapeseed oil and it is also confirmed by the report by Central Food Laboratory, Calcutta. Thus the submission of the learned Counsel for the applicant is not tenable.

Learned counsel for the applicant submitted that the applicant is entitled for the benefit of Probation of Offenders Act, 1958 and Section 360, Cr.P.C. and relied on a case Nagar Swasthya Adhikari Vs. Naim Chand, I have gone through the case law cited by the learned Counsel, but in my opinion it does not help the applicant in any manner inasmuch as the provision of Section 20-AA has been inserted in the Food Adulteration Act by Act 34 of 1976 with effect from 1 -4-1976. The applicant has been convicted for the offence alleged to have been committed on 22-11-1977 but there is no evidence on material on record to indicate that the exact age of the accused-applicant was below 18 years on the day of incident. The contention of the learned Counsel has no leg to stand. After going through the material on record, I do not find any merit in the revision.

Accordingly the revision is dismissed. The conviction and sentence awarded by the trial Court and affirmed by the appellate Court are maintained. The applicant is on bail. He shall be taken into custody to serve out his sentence.