# Mohammad Aslam Revisionist (In Jail) v. State of U.P - **Citation:** (2019) 3 ILRA 388 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-09-27 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-aslam-revisionist-in-jail-v-state-of-u-p-44758 - **Pages:** 3 ## Headnote A. Criminal Law -Prevention of Food Adulteration Act,1954 - Section 7/16non-compliance of Section 13(2) - Code of Criminal Procedure, 1973-Section 401 r/w Section 397- -the report of Public Analyst was not served upon revisionist and court below treated compliance only on the ground that report was sent by registered post on the address of accused-in the instant case report of Public Analyst was not actually served upon the accused within time-the very purpose of furnishing such report is to enable the accused to seek for reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report-Safeguard provided to the accused u/s 13(2) is a valuable right-in the absence of there being proof of delivery of the report to the accused, the valuable right available to the accused to seek reference within the period of 10 days stands defeated. (Para 4,6) B. It cannot be doubted that prosecution,when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused because it is right of accused and prosecution must prove that not only report of Public Analyst was sent by registered post, but it was actually served upon accused, which has not been done in the instant case. (Para7,8) Revision allowed (E-6) List of cases cited:- ## Text 388 INDIAN LAW REPORTS ALLAHABAD SERIES 25. The Revisionist, Shamim Ahmad, is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate, Bijnor shall cause him them to be arrested and lodged in jail to serve out sentence passed against him. The compliance shall be reported within two months. 26. Certify this judgment to the Lower Court immediately. ---------- (2019)11ILR A388 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 27.09.2019 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Criminal Revision No. 1244 OF 1992 Mohammad Aslam ...Revisionist (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Revisionist: Sri Arpit Agarwal, Sri Akash Gupta Counsel for the Opposite Party: A.G.A. A. Criminal Law -Prevention of Food Adulteration Act,1954 - Section 7/16non-compliance of Section 13(2) - Code of Criminal Procedure, 1973-Section 401 r/w Section 397- -the report of Public Analyst was not served upon revisionist and court below treated compliance only on the ground that report was sent by registered post on the address of accused-in the instant case report of Public Analyst was not actually served upon the accused within time-the very purpose of furnishing such report is to enable the accused to seek for reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report-Safeguard provided to the accused u/s 13(2) is a valuable right-in the absence of there being proof of delivery of the report to the accused, the valuable right available to the accused to seek reference within the period of 10 days stands defeated. (Para 4,6) B. It cannot be doubted that prosecution,when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused because it is right of accused and prosecution must prove that not only report of Public Analyst was sent by registered post, but it was actually served upon accused, which has not been done in the instant case. (Para7,8) Revision allowed (E-6) List of cases cited:- 1. State thru S.P., New Delhi Vs. Ratan Lal Arora (2004) 4 SCC 590 2. State of Madhya Pradesh Vs. Vikram Das (2019) 4 SCC 125 3. Vijendra Vs. State of U.P. and Ors (Cri,Ap. No. 1167 of 2019) (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri Arpit Agarwal, learned counsel for revisionist and learned A.G.A. for State. 2. This Criminal Revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 09.05.1991 passed by Additional Chief Judicial Magisrate, Nageena, Bijnor in Criminal Case No. 1865 of 1990 convicting and sentencing revisionist under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 3 All. Mohammad Aslam Vs. State of U.P. 389 1954'). Thereagainst accused-revisionist preferred Criminal Appeal No. 43 of 1992 which has been dismissed by Sessions Judge, Bijnor vide judgment and order dated 14.08.1992. This revision has been filed challenging both the aforesaid orders. 3. Counsel for revisionist contended that revisionist is entitled for benefit under Probation of Offenders Act, 1958 (hereinafter referred to as "Act, 1958") but I find that punishment has been awarded under the provisions of Food Adulteration Act, wherein minimum sentence of six months and fine of Rs. 1000/- has been provided and hence in such a case, Act, 1958 will no apply as held by Supreme Court in State through S.P., New Delhi vs. Ratan Lal Arora (2004) 4 SCC 590, followed in State of Madhya Pradesh Vs. Vikram Das (2019) 4 SCC 125. 4. It is next contended that there is non compliance of Section 13(2) of Act, 1954 inasmuch the report of Public Analyst was not served upon revisionist and Court below treated compliance of Section 13(2) only on the ground that report was sent by registered post on the address of revisionist is sufficient compliance. 5. I find force in the submission. 6. Learned A.G.A. could not dispute that this approach of Courts below is not consistent with the exposition of law laid by Supreme Court very recently in Vijendra Vs. State of U.P. and others (Criminal Appeal No. 1167 of 2019) (Arising out of S.L.P. (Criminal) No. 4314 of 2015) decided on 31.07.2019 and in para 15 of judgment, Court has said as under: "The very purpose of furnishing such report is to enable the Accused to seek for reference to the Central Food Laboratory for analysis if the Accused is dissatisfied with the report. Such safeguard provided to the Accused Under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the Accused; in the instant facts the valuable right available to the Accused/Appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the Appellant/Accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since as already noticed above the report of the Analyst has not in fact been served on the Appellant and the mere despatch of the report as per the statement of PW-2 was not sufficient." (emphasis added) 7. Therefore, as a proposition of law, it cannot be doubted that prosecution, when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused because it is right of accused and prosecution must prove that not only report of Public Analyst was sent by registered post, but it was actually served upon accused-Revisionist, which has not been done in the case in hand. 8. In the result, this revision is allowed. Impugned judgements and orders dated 09.05.1991 and 14.08.1992 are hereby set aside. 390 INDIAN LAW REPORTS ALLAHABAD SERIES 9. Certify this judgment to the lower Court immediately. ---------- (2019)11ILR A390 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 19.10.2019 BEFORE THE HON'BLE VIKAS KUNVAR SRIVASTAV, J. Criminal Revision No. 1385 of 2019 Vikas Singh & Ors. ...Revisionists Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Revisionists: Sri Parmeshwar Dutt Tewari, Sri Kamlesh Kumari, Sri Vijay Kumar Tiwari Counsel for the Opposite Parties: Government Advocate A. Criminal Law -Protection of Children from Sexual Offences Act, 2012 - Section 38 - Indian Penal Code, 1860 - S ection 376D - application-providing the help of interpreter to the seven year old victim for recording the evidence- challenge to - violation of section 38-interpreter can only be provided to a physically or mentally disabled person - disability is quite a distinct thing from inability - providing interpreter to a child who is unable to communicate is not to be treated as disabled person-the word 'unable to communicate' are in consonance with the provision of section 119 Evidence Act. B. Criminal Law -Code of Criminal Procedure, 1973 - Section 397(2) - application-bar as to admissibility - interlocutory order cannot be amenable in revision u/s 397 as providing the interpreter is not the final order-final order culminates the proceeding as a whole or finally decides the right and liability of the parties. (Para 2,12,13,17 to 24) Revision dismissed (E-6) List of cases cited:- 1. M/s Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Ltd. And Ors, AIR (2001) SC 3625 2. K.K. Patel and Ors Vs. State of Gujrat, AIR (2000) SC 3346 (Delivered by Hon'ble Vikas Kunvar Srivastav, J.) 1. The present revision is moved on behalf of the accused-applicants involved in Case Crime No. 287 of 2017, under Section 376-D Indian Penal Code, 1860 and Section 7/8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter which shall be referred as 'POCSO' in short), Police Station PGI, District Lucknow. The revision is directed against the order of Addl. Sessions Judge/Special Judge POCSO Act, Lucknow dated 22.07.2019, made Annexure no. 1 to this revision. 2. Heard learned counsel for the revisionists, learned Additional Government Advocate for the State on the point of admission of the revision. Learned A.G.A. termed the order, impugned in this revision, in nature, 'interlocutory order'. He further argued, since revision is moved under Section 397/401 of the Code of Criminal Procedure, 1973, therefore there is a bar as to the admissibility contained under sub Section (2) of Section 397 Cr.P.C. 3. For easy reference Section 397 (2) is quoted below:. "(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."