# Gopal Pal Revisionist (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-14
- **Case number:** Criminal Revision No. 1620 of 1995
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-pal-revisionist-in-jail-v-state-of-u-p-45120
- **Pages:** 7

## Headnote

A. Criminal Law - Prevention of Food and
Adulteration Act, 1954 - Section 2(ia), 7/16,
10(7), 11(1)(b), 13(2) - Compliance of
Section 10(7) - The evidence of the Food
Inspector shall be analyzed on the basis of
merit and on his testimony the case can be
held proved. The duty of the Food Inspector is
held
confined
to
only
calling
independent
witnesses but the said inspector cannot compel
any witness to appear and that if the evidence of
the Food Inspector is found to be believable, the
accused could be held guilty. (Para 9)

B. Jurisdiction of C.M.O. - It has been argued
that CMO did not have any authority to grant
sanction for prosecution and the Court held that
new Notification No. 6000 dated 20.1.1997, had
authorized all Chief Medical Officers to act as
Local Health Authority for the whole District,
and, therefore, the C.M.O., Mirzapur had full
jurisdiction to grant sanction to prosecute the
accused-revisionist. (Para 8)
C. Compliance of Section 13(2) - If the
registry was sent and the same did not return, it
would be deemed that the same was served
upon the accused. The filing of receipt of
registry from the side of prosecution
would be an admissible piece of evidence
u/s 114 of the Evidence Act. (Para 11, 14)

Registered notice was sent to the accused on his
given address which provided him sufficient
opportunity, within the prescribed time of 10 days,
to move for obtaining the second sample, for
getting the same analyzed from the Director of
Central Food Lab. Furthermore, when he appeared
before the Trial Court, he had a right to move an
application for getting the second sample tested, by
sending it to the Central Food Lab but he did not
avail that opportunity and, therefore, he cannot take
this plea at this late stage and no benefit can be
allowed to him. (Para 16)

D. Strict adherence to the provision of
Prevention of Food Adulteration Act and Rules
framed there-under is essential for safeguarding
the interest of consumers of articles of food.
Stringent laws will have no meaning if offenders could
get away with mere fine. (Para 17)

Revision is partly allowed. (E-4)

Precedent followed:

## Text

9 All. Gopal Rai Vs. State of U.P.
989

15. With the aforesaid directions, this
revision is finally disposed off.
----------
(2020)09ILR A989
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Revision No. 1620 of 1995

Gopal Pal ...Revisionist (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Tapan Ghosh, Sri Ajay Kumar Sharma, Sri
Atul Sharma, Sri K.S. Singh, Sri Prakash
Chandra Srivastava, Sri Gaurav Singh, Sri
Kripa Shanker Singh, Sri Lakshman Tripathi,
Sri Mukesh Kumar, Sri R.N. Sharma.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Prevention of Food and
Adulteration Act, 1954 - Section 2(ia), 7/16,
10(7), 11(1)(b), 13(2) - Compliance of
Section 10(7) - The evidence of the Food
Inspector shall be analyzed on the basis of
merit and on his testimony the case can be
held proved. The duty of the Food Inspector is
held
confined
to
only
calling
independent
witnesses but the said inspector cannot compel
any witness to appear and that if the evidence of
the Food Inspector is found to be believable, the
accused could be held guilty. (Para 9)

B. Jurisdiction of C.M.O. - It has been argued
that CMO did not have any authority to grant
sanction for prosecution and the Court held that
new Notification No. 6000 dated 20.1.1997, had
authorized all Chief Medical Officers to act as
Local Health Authority for the whole District,
and, therefore, the C.M.O., Mirzapur had full
jurisdiction to grant sanction to prosecute the
accused-revisionist. (Para 8)
C. Compliance of Section 13(2) - If the
registry was sent and the same did not return, it
would be deemed that the same was served
upon the accused. The filing of receipt of
registry from the side of prosecution
would be an admissible piece of evidence
u/s 114 of the Evidence Act. (Para 11, 14)

Registered notice was sent to the accused on his
given address which provided him sufficient
opportunity, within the prescribed time of 10 days,
to move for obtaining the second sample, for
getting the same analyzed from the Director of
Central Food Lab. Furthermore, when he appeared
before the Trial Court, he had a right to move an
application for getting the second sample tested, by
sending it to the Central Food Lab but he did not
avail that opportunity and, therefore, he cannot take
this plea at this late stage and no benefit can be
allowed to him. (Para 16)

D. Strict adherence to the provision of
Prevention of Food Adulteration Act and Rules
framed there-under is essential for safeguarding
the interest of consumers of articles of food.
Stringent laws will have no meaning if offenders could
get away with mere fine. (Para 17)

Revision is partly allowed. (E-4)

Precedent followed:

1. St. of Raj. Vs Jagdish Prasad, 2009 Law Suit
(SC) 694 (Para 17, 20)

Precedent distinguished:

1. Ram Labhaya Vs Municipal Corporation of
Delhi & ors., AIR 1974 SC 789 (Para 9)

2. Nagar Swastha Adhikari, Nagar Maha Palika
Vs Chhunni Lal, 1991 Supp. ACC 403 (Para 16)

3. Jugul Kishore Vs St. of U.P. [2019 (106) ACC
752] (Para 13)

Present
revision
has
been
preferred
against
judgment
and
order
dated
06.12.1995, passed by Vth Additional
Sessions Judge, Mirzapur.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
990 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Prakash Chandra
Srivastava, learned counsel for revisionist
along with Sri Atul Sharma, Advocate and
Sri G.P. Singh, learned AGA for the State.

2. This revision has been preferred
against the judgment and order dated
6.12.1995, passed by Vth Additional
Sessions Judge, Mirzapur in Criminal
Appeal No.5 of 1993 (Gopal Pal Vs. State
of U.P.). Whereby the appeal has been
dismissed and the order of Trial Court has
been upheld.

3. The Trial Court (C.J.M. Mirzapur)
vide judgment and order dated 23.7.1993,
passed in Criminal Case No.762 of 1992
(State Vs. Ram Kumar and another) has
held accused Gopal Pal guilty under
Section 7/16 of the Prevention of Food and
Adulteration Act, 1954 (hereinafter referred
to as 'Act, 1954') and has awarded
punishment of one year as rigorous
imprisonment and fine of Rs.2,000/- and in
default of payment of fine four months
additional rigorous imprisonment.

4. The main contention of learned
counsel for the accused-revisionist is that
the accused-revisionist is a 67 year old
person. The co-accused Ram Kumar Pal
who was the owner of the shop and had a
proper licence has been acquitted. The
allegedly recovered Namkeen (Sev) is not
covered in Section 2(ia) as an adulterated
article of food. It is further argued that it is
alleged that the revisionist was found
selling the same, and, therefore, he cannot
be made liable to be punished under
Section 7/16 as he was not owner of the
said
shop.
He
was
not
caught
manufacturing the said Namkeen and lastly
it was argued that the provision of Section
13(2) of Act, 1954 was not complied with
which is a mandatory provision, noncompliance of which vitiates the entire
proceedings.

5. For appreciation of arguments of
learned counsel for the revisionist, it would
be proper to go through the facts of the case
first and the opinion expressed by the
Courts Below.

6. According to the prosecution case,
on 30.11.1991 at about 10:30 AM Food
Inspector
Mohd.
Haneef
Ansari
had
inspected the shop in question, located near
Naveen Chitra Mandir in District Mirzapur
which was a sweet shop as well as shop for
sale of tea and namkeen, when he reached
there, accused Gopal Ram was found
present selling the items. The co-accused
Ram Kumar Pal was having a licence of the
said shop. The Food Inspector having
suspicion of adulteration in the Namkeen
(Sev), purchased 600 grams of it for the
purpose of analysis after paying an amount
of Rs.24/- and also gave Form-6 to accused
Gopal Pal and obtained receipt for purchase
of the said items from him. The said
Namkeen was kept in three clean and dried
bottles for the purposes of sample and were
sealed
according
to
the
rules
and,
thereafter, code slip was pasted thereon
which is provided by C.M.O. Mirzapur and
had obtained signatures thereon of accused
Gopal Pal. One bottle containing sample
was sent by registered post on 2.12.1992, to
public analyst U.P. Lucknow while rest of
the two bottles were deposited in the Office
of Chief Medical Officer, Mirzapur. He
received a report of public analyst, in
which the sample was found containing
Kheshari (Lathyrus Sativus) which is
prohibited in edible articles. Thereafter, an
application for sanctioning prosecution of
the accused persons was moved before the
Chief Medical Officer, Mirzapur on which
the then C.M.O., Mirzapur granted sanction
9 All. Gopal Rai Vs. State of U.P.
991
to prosecute the accused on 6.3.1992, and,
thereafter, the Food Inspector Mohd.
Haneef
Ansari
instituted
the
present
complaint case. Thereafter, after following
due procedure from the side of complainant
the Food Inspector Mohd. Haneef Ansari
was examined as P.W.1, retired Food
Inspector S.K. Singh as P.W.2 and Food
Clerk Aquil Ahmad Hasmi as P.W.3 and,
thereafter, the evidence of prosecution was
closed and the statement of accused were
recorded under Section 313 Cr.P.C. in
which the prosecution case was stated to be
false and in defence it was further stated
that there was no sweet shop near Naveen
Chitra Mandir, rather there was an
electricals shop near that place where the
electrical items are sold in retail, regarding
which he (co-accused) had licence. As
regards the present accused-revisionist he
stated that the entire prosecution evidence
was false and that the witnesses being of
the department had falsely implicated him.
He also stated that he is brother of coaccused Ram Kumar Pal who has an
electrical shop on which he sits. One
witness Bihari Lal was also examined as
D.W.1 in defence from the said of accused
person and various documents were also
provided which have been mentioned in the
judgment.

7. After evaluating the evidence on
record, the Trial Court has held the accused
guilty
and
awarded
punishment
as
mentioned above and the Appellate Court
has upheld the said judgment in which it is
mentioned that the accused had taken a
defence that the C.M.O. did not have
authority to grant sanction for prosecution;
no compliance was made of Section 10(7)
of Act, 1954; the provision of Section 13(2)
of the Act, 1954 was not complied with and
provision of Section 11(1)(b) of Act, 1954
was not complied with.

8. As regards the C.M.O. not having
jurisdiction to grant sanction it was held
that new Notification No.6000 dated
20.1.1997,
had
authorized
all
Chief
Medical Officers to act as Local Health
Authority for the whole District, and,
therefore, the C.M.O., Mirzapur had full
jurisdiction to grant sanction to prosecute
the accused-revisionist and that point
stands settled because it is not agitated
before this Court.

9. As regards none-compliance of
Section 10(7) of Act, 1954, it is held by the
Appellate Court that the said provision is
mandatory provision, compliance of which
is made mandatory at the end of Food
Inspector. At the time of collecting the
sample, more than one independent witness
is directed to remain present but it is also
correct that if the Food Inspector summons
independent witnesses for the said purpose
but they do not co-operate, in such a
condition if Food Inspector is not able to
comply with the said provision according
to law laid down by the Hon'ble Apex
Court in AIR 1974 Page 789, the duty of
the Food Inspector is held confined to only
calling independent witnesses but the said
inspector cannot compel any witness to
appear and that if the evidence of the Food
Inspector is found to be believable, on that
basis the accused could be held guilty. It is
further recorded in the judgment the said
provision is made with a view to taking
extra precaution and the same cannot be
treated to be a mandatory Principle of Law.
It is further held that if the Food Inspector
while performing his official duty, in that
capacity, purchases some article for the
purposes of analysis of the test in
accordance with the provisions laid down
in the Act and the same is found to be
adulterated after its analysis by public
analyst, in that situation it is mandatory for
992 INDIAN LAW REPORTS ALLAHABAD SERIES
the Food Inspector to proceed against such
a person from whom the sample was taken.
The evidence of the Food Inspector shall be
analyzed on the basis of merit and on his
testimony the case can be held proved. In
the case in hand there was no such
allegation made against the Food Inspector
that he was inimical towards the accused
hence, there could be no doubt that he had
collected the sample from the accused
which was found to be adulterated. The
Trial Court as well as Appellate Court have
dealt with this point at length and I find that
there is no reason why it should not be
concluded that the provision of Section
10(7) of the said Act were complied with.

10. It is recorded in the impugned
judgment that on Form no.6 (Ex- Ka-2), the
signature of accused-revisionist is available
which is made on behalf of co-accused
Gopal who has been acquitted in this case.
The receipt which was issued in view of
purchase also bears signature of Gopal for
co-accused Ram Kumar which is Ex Ka-3
and on both these Exhibits, the date is of
30.11.1991, and time is about 10.30 AM
for purchase of 600 Grams of Namkeen
(Sev) for an amount of Rs.24/-. Form no.6
and purchase receipts are Exhibits ka-2 and
ka-3 respectively and it has been mentioned
in them that witnesses were called from the
vicinity but they refused to be witnesses to
the said recovery and also refused to
disclose
their
names
and
addresses.
Therefore, it is held that the compliance of
Section 10(7) was adequately made in this
case. I also concur with the said opinion
and find that there is no infirmity as regards
holding that the compliance of the said
Section was wholly made.

11. The next most important point is
non-compliance of provision of Section
13(2) of Act, 1954 which is mandatory
provision. In this regard, it is recorded in
the impugned judgment that the revisionist
was sent a copy of public analyst's report
regarding
which
postal
receipt
was
available and on the basis of that notice, the
revisionist was informed that a complaint
case had been filed against him and in case,
he wanted, he could take necessary action
within 10 days of the receipt of the notice.
In the said notice there is mention made of
the complaint case having been filed, which
was sent on 16/17.6.1992 and a report of
public analyst was also annexed therewith.
In the said notice Gopal Pal son of Kedar
Nath Pal near Naveen Cinema, Post- Sadar,
Meerapur was mentioned. P.W.3 A.A.
Hasmi has clearly stated that public
analysts report was transmitted to both the
accused i.e. Ram Kumar Pal as well as
Gopal Pal (on their home address vide
letter of C.M.O. LHA Mirzapur Letter No.
F-20-92-93 dated 16/17.6.1992, copies of
which were brought by him today which
were deposited and the same was marked
as Ex Ka-11. It is also recorded in the
judgment that it appears to be by mistake
that Ex Ka-11 was mentioned, though on
the said Prapatra, Ex. Ka.12 was mentioned
and the said receipts by which the
registered letter is sent, was paper no.16-A
which is Exhibit Ka-11. From the evidence
of A. A Hasmi P.W.3 dated 25.5.1993, it
was evident that both the accused were sent
separate registry and therefore, if they
wanted, within 10 days, they could have
sent the other sample to CFL for being
tested. Those registries did not return. From
SPS Register, page 7, it was evident that
the entry was made by this witness in his
hand writing in respect of the said registries
having been sent and the entry was also
made of postal receipt no.4477 and 4475,
dated 17.6.1992 which was submitted by
him in Court which is Ex Ka-11. Therefore,
it was evident that the registries were sent
9 All. Gopal Rai Vs. State of U.P.
993
to the revisionist-accused and if he had not
received the same, in that condition when
he had appeared before Court he could
have asked for the second sample to be sent
for CFL for being tested. In his not doing
so, he could not get any benefit. This part
has been adequately dealt with by the lower
court, if the registry was sent and the same
did not return, it would be deemed that the
same was served upon the accused and with
that conclusion I do not have any quarrel.

12. Much argument was made by
learned counsel for the revisionist that it
was not proved that the registry was sent on
the given address of the revisionist-accused
because on the receipt filed before the
Court, the same did not contain the whole
address of the accused-revisionist. Hence,
that could be treated to be a breach in
sending mandatory notice to the accusedrevisionist. I do not accept this argument
because the details of the address are
always noted on the envelope which is sent
and not on the receipt of registry, because
receipt of registry always contains small
reference of the name of the person whom
the same is sent as well as to place, which
is
normal
practice
being
commonly
observed. Therefore, in my opinion the
compliance of Section 13(2) of Act, 1954 is
found to have been made adequately.

13. Learned counsel for the accusedrevisionist has relied upon in the Case of
Jugul Kishore Vs. State of U.P. [2019
(106) ACC 752], in which it has been held
that prosecution has to prove the fact of
service by producing evidence aliunde, not
just the dispatch of notice, in order to be in
accord with section 13(2) of Act, 1954 and
held in the present case that admittedly, no
acknowledgment card or other evidence,
such as, a certificate of delivery of the
registered postal cover by the postal
department has been placed on record,
hence, it would fall foul of requirement of
section 13(2) of the act read with the
relevant rule.

14. There is no quarrel with the
principle laid down above, but in the
present case, I find that the receipt of
registry
has
been
produced
by
the
prosecution in respect of which evidence is
also led that the information was sent to the
accused by registered post, receipt of which
was presented in court, showing the given
address and though the full address was not
written on the receipt but it has been held to
be a common practice that the full address
is always written on the envelope which is
sent to the addressee while the person who
sends the registered letter is given a receipt
mentioning thereon the name of the
addressee, normally, which appears to have
happened in the present case also. Hence,
the filing of receipt of registry from the
side of prosecution would be an admissible
piece of evidence under Section 114 of the
Evidence Act.

15. One more point which needed to be
considered was that when the accused had
appeared before the Court he had opportunity to
move an application for getting the second
sample sent for being tested which right has not
been exercised by the accused. I do not know
whether in the case relied upon by the learned
counsel for the accused-revisionist, the accused
had appeared before Court and had applied for
excising his right or not to get the second
sample sent for being tested, therefore, the facts
of the present case may be distinguishable from
the facts of the case relied upon by the learned
counsel for the revisionist

16. The learned counsel for the
revisionist-accused has relied upon the
Nagar Swastha Adhikari, Nagar Maha
994 INDIAN LAW REPORTS ALLAHABAD SERIES
Palika
Vs.
Chhunni
Lal,
1991
supplementary ACC page 403, in which it
is held that under Sub-Section 2 of Section
13 of Act, 1954, the accused-revisionist has
been given a valuable right to apply to the
court to have the sample taken and get it
analyzed by Director of the Central Food
Lab, if this right is prejudiced, in any way
by the carelessness or negligence of the
prosecution, report of the public analyst
cannot be relied upon and the accusedrevisionist can not be convicted on the
basis of said report. The said provision is
mandatory and a violation thereof would
deprive
the
accused-revisionist
of
a
valuable right. There is no dispute with the
above Principle Law but I have already
given my finding that the compliance of
Section 13(2) was properly made in this
case, as soon after the receipt of public
analyst report and the filing of the
complaint case, registered notice was sent
to the accused on his given address which
provided him sufficient opportunity, within
the time prescribed of 10 days, to move for
obtaining the second sample, for getting the
same analyzed from the Director of Central
Food Lab. Furthermore, when he appeared
before the Trial Court, he had a right to
move an application for getting the second
sample for being tested, sent to the Central
Food Lab but he did not avail of that
opportunity and, therefore, he cannot take
this plea at this late stage and no benefit
can be allowed to him.

17. I may rely upon the case of State
of Rajasthan Vs. Jagdish Prasad, 2009
Law Suit (SC) 694, in which it has been
held that the Trial Court had awarded six
months imprisonment to the accused under
Section 6/17 of the Act, 1954 and the High
Court had upheld the conviction but
imposed the fine of Rs.6,000/- and directed
commutation of sentence of six months R.I.
When the matter came up before the
Hon'ble Apex Court it was held that strict
adherence to the provision of Prevention of
Food Adulteration Act and Rules framed
there-under is essential for safe-guarding
the interest of consumers of articles of
food. Stringent laws will have no meaning
if offenders could get away with mere fine
and therefore, order of sentence by the
Trial Court was upheld. Further for a
period of three months accused was given
liberty to move appropriate Government for
commutation of sentence and accordingly,
the impugned order of High Court was set
aside.

18. In view of the above analysis
made by me, I am of the opinion that there
is no infirmity in the impugned judgment
and order dated 6.12.1995, and that the
accused-revisionist
has
been
rightly
convicted under section 7/16 of Act, 1954
but as regards sentence, I find that much
time has elapsed since the occurrence took
place and by now the accused has turned to
be about 67 years of age, therefore, it
would be proper that instead of one year S.I
and fine of Rs. 2,000/- the same be reduced
to six months simple S.I. which is
minimum
sentence
prescribed
under
Section 16 of the Act. However, no
interference is required as regards fine.
Therefore,
the
sentence
of
accusedrevisionist is reduced to S.I. for six months
and a fine of Rs.2,000/- and in default of
payment fine 15 days S.I., to meet the ends
of justice.

19. This revision is accordingly partly
allowed and a copy of this judgment be
transmitted to the Trial Court expeditiously
to carry out the judgment and ensure that
the accused is taken into custody to serve
out the sentence awarded. The period for
which he has been detained earlier the same
9 All. Amit Kumar @ Raja Vs. State of U.P. & Anr.
995
would be adjusted against the said
sentence. The bail bonds and surety bonds
of accused-revisionist are discharged.

20. It was argued by learned counsel
for
the
accused-revisionist
that
the
revisionist-accused has now turned 67
years of age and, therefore, it would be
very painful for him to go to jail and serve
out the remaining sentence at this far
distant point of time, therefore, in view of
the judgment of Apex Court in the case of
State of Rajasthan Vs. Jagdish Prasad,
2009 Law Suit (SC) 694, this Court deems
it proper to grant him three months time
from
today
to
approach
appropriate
Government annexing a certified copy of
this order to seek remission under Section
433(d) Cr.P.C., if so advised.

21. If the revisionist files any such
application for grant of remission by the
Government before the Trial Court with its
receipt then the Trial Court shall await the
outcome of the said application which shall
be informed by the revisionist to the Trial
Court also immediately. If he is granted
remission by the Government, the Trial
Court shall abide by it, failing which the
accused-revisionist shall be taken into
custody after expiry of the period of 3
months from today, to serve out the
remaining sentence.

23. Office is directed to send a copy of
this order to the Trial Court immediately
for compliance
----------
(2020)09ILR A995
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.06.2020

BEFORE

THE HON'BLE J.J.MUNIR, J.
Criminal Revision No. 2388 of 2019

Amit Kumar @ Raja ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Uttam Singh, Sri Dharm Jeet Singh, Sri
Hari Bans Singh

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401 r/w Section
397 & Indian Penal Code, 1860-Sections
147, 148,149, 323, 504, 506, 304, 308application-claim to be juvenile-four adult
accused
granted
bail
while
the
revisionist/juvenile were disentitled to
bail-the adult offenders whose case is at
par with the revisionist/juvenile, being
found entitled to bail, there is absolutely
no justification to fetter the revisionist's
liberty merely because he is a child in
conflict with law-it would be a great
travesty of justice that the revisionist is
liable to suffer institutional incarceration
in a situation where an adult at par is
entitled to the liberty of bail.(Para 2 to 11)

B. The proviso in Section 12(1) is a special
provision designed to ensure bail to a
juvenile. If an adult accused and a child
have the same role and the adult accused is
found entitled to bail, and holding the
juvenile in institutional incarceration,would
work hostile discrimination against the
revisionist/juvenile.(Para 7 to 11)

The revision is allowed. (E-6)

List of cases cited: -

1. Dharmendra (Juvenile) Vs St. of U.P. & ors.,
(2018) 7 ADJ 864

(Delivered by Hon'ble J.J.Munir, J.)

1. Supplementary affidavit filed today
in Court is taken on record.