# Ram Ratan Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** Criminal Revision No. 16 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ratan-revisionist-v-state-of-u-p-anr-50265
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - The Food Safety and Standards
Act,
2006
-
Section
97
(4)
-
Notwithstanding anything contained in
any other law for the time being in force,
no court shall take cognizance of an
offence under the repealed Act or Orders
after the expiry of a period of three years
from the date of the commencement of
this Act - Prevention of Food Adulteration
Act, 1954 (repealed) ,Prevention of Food
Adulteration Act, 2006 - Section 2(m),
2(n), 2(ia)(m), 7/16, 13(2) , 16, Section
13 - Report of public analyst , Section16A
- Power of court to try cases summarily,
Probation of the Offenders Act,1958 -
Section 4.
66 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) The General Clauses Act, 1897-
Section 6 - mandate - to leave the pending
proceedings unaffected which commence
under the unrepealed provisions, unless
contrary intention is expressed , Section
6(c) - objective of Section 6(c) of the
General Clauses Act - to ensure protection
of any right or privilage acquired under
the repealed Act - exception - legislative
intention to the contrary - repealing Act
may expressly provide or it may impliedly
provide against continuance of such right,
obligation or liability.(Para - 13)

Sample of milk found adulterated - not up to
prescribed standard - fat contents of milk were
found 13 percent below the prescribed standard
- cognizance taken by magistrate - Magistrate
ruled - sample was filled on 03.03.2010 - court
took cognizance on 17.08.2010 - within 3 years
of the Act's commencement - trial court
concluded - Prevention of Food Adulteration Act,
2006 was within jurisdiction - Food Safety and
Standards Act's provisions not applicable -
accused convicted for charge under Section
7/16 P.F. Act - accused revisionist appealed Trial
Court's verdict of guilt and sentencing - which
was affirmed by Sessions Judge - present
revision

preferred
against
concurrent
judgments (Para -2,3,4)

HELD:-Case falls within the purview of Section
2(m) of the Act . Sample did not correspond to
prescribed standard as adulterated
within
meaning of Section 2(ia)(m). Section 97(4)
saves cognizance within 3 years of Act of 2006
commencement.
Court
of
first
instance
cognizance is not illegal or barred under law.
Trial and Appellate Courts did not make any
factual or legal errors in recording guilt verdicts
or judgments, leading to dismissals and affirmed
orders. Section 16(A) of the Act allows
revisionists to apply provisions of Section 262
and 265 of the Code of Civil Procedure to
summary trials of offences under sub-Section 1.
Trial court's conviction affirmed. Revisionist's
sentence modified to 3 months imprisonment.
(Para -17,20,21,22,29,31 )

Revision partly allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,943 of 41,123. This is a partial read: ask again with offset=39943 for what follows._

5 All. Ram Ratan Vs. State of U.P. & Anr.
65
was before the Waqf Board from which it
could deduce at this stage that the Waqf
deed inadvertently omitted it to be
indicated as Waqf ALAL-Aulad. The
aforesaid contradiction in Waqf deed is
required to be proved before the Tribunal
by leading of evidence and at this stage the
prima facie finding recorded by the
Tribunal does not appear to be supported by
any evidence.

37. It also appears that Tribunal has given
considerable weight to the fact that a sale-deed
was executed in favour of father of opposite
party no.5 on 16.04.1968 which was a
registered deed and has not been challenged by
any one. The said aspect also, would require
corroboration and substantiation by evidence.
The Tribunal as such was required to take into
consideration the prima facie contradiction in
the Waqf deed and the aforesaid sale-deed and
at this stage, it appears to have wrongly placed
heavy reliance on the aforesaid fact pertaining
to the sale-deed without adverting to the fact
that there did not appear to be any material on
record, at the stage of grant of interim
injunction by which it would be deemed that
the Waqifs of the Waqf deed deliberately or by
omission recorded a wrong name and purpose
of Waqf.

38.
In
view
aforesaid
facts
and
circumstances, the order impugned dated
12.12.2022
passed
by
Waqf
Tribunal,
Lucknow in Waqf Case No.113 of 2020, being
apparently against the material on record, is set
aside. The aspect of validity of Waqf deed, the
sale-deed and revenue entries would definitely
be subject to evidence being led during course
of proceeding.

39. It is observed that the narration of
events and facts as indicated in the body of
this order would be subject to evidence
being led before the Tribunal.

40. The revision as such succeeds and
is allowed. Parties to bear their own costs.
----------
(2023) 5 ILRA 65
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 16 of 2023

Ram Ratan ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Vijay Bahadur Shivhare, Sri Ram Lalit
Chaudhary, Sri Vijay Kumar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - The Food Safety and Standards
Act,
2006
-
Section
97
(4)
-
Notwithstanding anything contained in
any other law for the time being in force,
no court shall take cognizance of an
offence under the repealed Act or Orders
after the expiry of a period of three years
from the date of the commencement of
this Act - Prevention of Food Adulteration
Act, 1954 (repealed) ,Prevention of Food
Adulteration Act, 2006 - Section 2(m),
2(n), 2(ia)(m), 7/16, 13(2) , 16, Section
13 - Report of public analyst , Section16A
- Power of court to try cases summarily,
Probation of the Offenders Act,1958 -
Section 4.
66 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) The General Clauses Act, 1897-
Section 6 - mandate - to leave the pending
proceedings unaffected which commence
under the unrepealed provisions, unless
contrary intention is expressed , Section
6(c) - objective of Section 6(c) of the
General Clauses Act - to ensure protection
of any right or privilage acquired under
the repealed Act - exception - legislative
intention to the contrary - repealing Act
may expressly provide or it may impliedly
provide against continuance of such right,
obligation or liability.(Para - 13)

Sample of milk found adulterated - not up to
prescribed standard - fat contents of milk were
found 13 percent below the prescribed standard
- cognizance taken by magistrate - Magistrate
ruled - sample was filled on 03.03.2010 - court
took cognizance on 17.08.2010 - within 3 years
of the Act's commencement - trial court
concluded - Prevention of Food Adulteration Act,
2006 was within jurisdiction - Food Safety and
Standards Act's provisions not applicable -
accused convicted for charge under Section
7/16 P.F. Act - accused revisionist appealed Trial
Court's verdict of guilt and sentencing - which
was affirmed by Sessions Judge - present
revision

preferred
against
concurrent
judgments (Para -2,3,4)

HELD:-Case falls within the purview of Section
2(m) of the Act . Sample did not correspond to
prescribed standard as adulterated
within
meaning of Section 2(ia)(m). Section 97(4)
saves cognizance within 3 years of Act of 2006
commencement.
Court
of
first
instance
cognizance is not illegal or barred under law.
Trial and Appellate Courts did not make any
factual or legal errors in recording guilt verdicts
or judgments, leading to dismissals and affirmed
orders. Section 16(A) of the Act allows
revisionists to apply provisions of Section 262
and 265 of the Code of Civil Procedure to
summary trials of offences under sub-Section 1.
Trial court's conviction affirmed. Revisionist's
sentence modified to 3 months imprisonment.
(Para -17,20,21,22,29,31 )

Revision partly allowed. (E-7)

List of Cases cited:

1. Avinash Chandra Bajpai & anr. Vs St. of U.P.
2019 (1) FAC 497

2. Rupesh Kumar & anr. Vs St. of U.P. 2011 (2)
FAC 33

3. Ambalal Sarabhai Enterprises Lt. Vs Amrit Lal
& Co. (2001) 8 SCC 397

4. Gurcharan Singh Baldev Singh Vs Yashwant
Singh A.I.R. 1992 SC 1186

5. Nemi Chand Vs St. of Raj. (2018) 17 SCC 448

6. T. Barai Vs Henry Ah Hoe & anr. 1983(1) SCC
177

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant criminal revision under
Section 397/401 Cr.P.C. has been filed
against
judgment
and
order
dated
20.12.2022 passed by Addl. Sessions Judge
Court No. 8, Kanpur Nagar, in Criminal
Appeal No. 106/2019 (Ram Ratan Vs.
Vivek Kumar and Another), whereby the
conviction and sentence passed by learned
Metropolitan Magistrate on 28.06.2019 in
Case No. 3872 of 2010 against accused
appellant Ram Ratan for charge under
Section
7/16
Prevention
of
Food
Adulteration Act has been affirmed. The
judgment and order of trial court dated
28.06.2019 has also been challenged.

2. The brief facts of the case relevant
from present criminal appeal are that on
05.03.2010,
the
complainant
Food
Inspector working on orders of local Health
Officer intercepted a milk vendor at 09:15
hours
near
Police
Station-
Bhidnu,
Gathmpur road, District- Kanpur Nagar,
who was taking milk in his bicycle in 4
containers each having around 20 ltrs of
milk, therefore he was carrying a total of 80
5 All. Ram Ratan Vs. State of U.P. & Anr.
67
lts of mixed milk of cow and buffalo. The
Food Inspector purchased 1500 ml milk for
Rs. 36 as sample and received an
acknowledgement from the vendor/ present
accused. The complainant tried to enjoin
local witnesses but they neither disclosed
their name nor agreed to be a witness. The
sample were kept in 3 dry and empty small
bottles in equal amount and was duly
sealed, labelled and tagged and signature of
the vendor was taken on each bottle of the
sample. The copies of Form 7 were
prepared and one set of sample was sent for
examination to Public Analyst, Lucknow
through speed post. The report of Public
Analyst was received in the office of Local
Health Officer, Kanpur on 04.06.2010 as
Test Report No. 3518 dated 17.04.2010,
wherein the sample of milk was found
adulterated.
The
complainant
Food
Inspector, Vivek Kumar received sanction
for prosecution from the D.M., Kanpur
Nagar, Sri Mukesh Meshram and filed the
present complaint. In report of Public
Analyst, the sample was found short of 13
percent milk fat and the sample was not
found up to prescribed standard and thus,
held to be adulterated. The learned
Magistrate took cognizance of the offence
after filing of a complaint by Food
Inspector, the statement of the accused was
recorded and substance of accusation was
explained to him which he denied and
claimed to be tried. In prosecution
evidence, P.W.-1 Shri Vivek Kumar, the
complaint (Food Inspector), P.W.- 2 Om Ji
Srivastava, Food Clerk were examined and
8
documents
were
accepted
during
evidence. The accused had not adduced any
oral
evidence
during
trial.
Learned
Magistrate after considering submissions of
learned counsel for the parties and on
appreciation
of
evidence
on
record,
observed that in present case, the sample
was
filled
up
on
05.03.2010
and
cognizance of the case was taken by the
Court on 17.08.2010 which is within 3
years from the date of commencement of
the Act, as provided under Section 97 (4) of
Food Safety and Standards Act. Therefore,
in the opinion of learned Trial Court, the
court was well within its jurisdiction to take
cognizance of the offence under Prevention
of Food Adulteration Act, 2006 and on
facts of the case the provisions of Food
Safety and Standards Act were not
applicable.

3. Learned Trial Court dispelled the
submission of learned counsel for the
accused that the District Magistrate granted
sanction for prosecution in mechanical
manner and did not perused any documents
submitted along with the application for
grant of sanction. The learned Trial Court
also observed that District Magistrate
granted sanction for prosecution after
perusing the relevant documents and as
well as in the light of report of Public
Analyst. He found no reason to disbelieve
the testimony of P.W.-1, who stated in
cross-examination that accused had told
him that he is milk vendor and was going to
sell milk. He also dispelled proposition of
the accused side that the sample was not
taken in accordance with rules and there
was no occasion to disbelieve the testimony
of the complainant, Food Inspector only on
ground that no public witness was enjoined
in inspection and process of sampling on
this part. The accused was served notice
under Section 13(2) P.F. Act within 3 days
of filing of complaint dated 17.08.2010 and
notice is found lawful. There is nothing to
be held that notice was sent to the accused
on wrong address. Learned Trial Court,
after considering evidence of P.W.1, Food
Inspector and P.W.-2 Om Ji Srivastava,
Food Clerk, on issuing of notice and
68 INDIAN LAW REPORTS ALLAHABAD SERIES
placing reliance on documentary evidence
submitted as an proof during trial, held that
prosecution has been successful to prove
the charge levelled against the accused
beyond reasonable doubt and recorded
conviction of the accused for charge under
Section 7/16 P.F. Act, and sentenced him 6
months simple imprisonment and Rs.
5,000/- fine with default stipulation.

4. Feeling aggrieved by the verdict of
guilt and sentencing awarded by learned
Trial
Court,
the
accused
revisionist
preferred criminal appeal before the Court
of Sessions which was decided by Addl.
Sessions Judge, Court No. 8 Kanpur Nagar
by impugned judgment dated 20.12.2022
who examined the record and in the light of
evidence on record and addressed legal
submissions raised by learned counsel for
the appellant, expressed his concurrence
with finding and judgment of learned Trial
Court and affirmed the impugned judgment
and order passed by learned Trial Court.
Present revision has been preferred by the
accused against concurrent judgments of
Courts below.

5. Heard learned counsel for the
revisionist, learned A.G.A. for the State and
perused the material on record.

6. Learned counsel for the revisionist
submitted that the accused is held in jail
custody
since
passing
of
impugned
judgment dated 20.12.2022 by Appellate/
Sessions Court, thereby he is held in jail
custody for more than 4 months as a
convict in the case from which present
revision has arisen. The judgment and
orders passed by learned Courts below are
against the provisions of law and strength
of evidence on record.

7. The prosecution failed to prove its
case beyond reasonable doubt on basis of
evidence adduced during trial, as no
offence is made out against the revisionist
under Section 16 of Prevention of Food
Adulteration Act. Both the learned Court's
below misappreciated the evidence on
record while recording the verdict of guilt
against accused revisionist and their
findings are not sustainable as after
commencement of Food Safety Standards
Act,
2006,
the
Prevention of
Food
Adulteration Act was repealed and in
present case cognizance under Section 7/16
Food Adulteration Act, was itself barred
under law. Therefore, the revision is liable
to the allowed and impugned orders passed
by Courts deserve to be set aside.

8.
Per
contra,
learned
A.G.A.
appearing for the State opposite party No.
1, submitted that there is nothing on record
which may want interference in present
criminal
revision
against
concurrent
findings of both the Courts below in which
verdict of guilt has been recorded against
accused appellant. The learned Trial Court
has awarded minimum punishment of
imprisonment pursuant under law against
accused, therefore, neither the conviction
nor sentence are liable to be interfered in
present criminal revision.

9. Learned counsel for the revisionist
cited and placed reliance of judgment
Avinash Chandra Bajpai and Another
Vs. State of U.P. 2019 (1) FAC 497 which
is related to cognizance/ summoning order
5 All. Ram Ratan Vs. State of U.P. & Anr.
69
for charge under Section 7/16 P.F.A. Act,
1954 in that case sample of Chole/ Chana
Masala (Bhola Indis) is alleged to have
taken from the shop of the revisionist on
09.02.2011 on basis of which a complaint
under Section 7/16 P.F. Act was filed
against him and the learned Magistrate took
cognizance of the offence on the criminal
complaint filed by the Food Inspector. This
Court held in that case that prevention of
Food Adulteration Act, 1954 has been
repealed with effect from 29.07.2010 while
notification in Extraordinary Gazette of
India copy at Annexure No. 2; that the
Food Safety and Standards Act, 2006 has
come into force with effect from 29 July,
2010 and after repeal of old Act, i.e.
Prevention of Food Adulteration Act, 1954,
the complaint under Section 07/16 Act of
Prevention of Food and Adulteration Act
was not maintainable and no cognizance
could have been taken by the Magistrate
under the old and already repealed Act.
This Court held that Magistrate has passed
impugned order of cognizance without due
application of mind to the facts and has
acted wrongly issued process against the
revisionist for an offence under nonexisting Act. After enforcement of Food
Safety and Standards Act, 2006; the
procedure under the new Act has to be
adopted against the revisionist and no
cognizance of offence under the old and
already repealed Act may be taken. The
impugned order of cognizance was wrong
and illegal and must be allowed to stand.

10.With regard to legal plea raised by
the accused side consistently from Court of
first instance to present revisional Court,
the provisions of repeal clause of Food
Safety and Standards Act are liable to be
examined. The object and reason of Food
Safety and Standards Act, 2006 states as
"an Act to consolidate the laws relating to
food and to establish the Food Safety and
Standards Authority of India for laying
down science based standards for articles
of food and to regulate the manufacture,
storage, distribution, sell and import, to
ensure availability of safe and wholesome
food for human consumption and for
matters connected therewith or incidental
thereto.

11. The different sections of the Act
were brought in force on different dates.
Section 97 of the Act was brought into
force on 29.07.2010 vide S.O. 1855 (E
dated 29.07.2010) issued by Central
Government. Section 97 provides as under

97. Repeal and savings.-

(1) With effect from such date as
the Central Government may appoint in
this behalf, the enactment and orders
specified in the Second Schedule shall
stand repealed: Provided that such repeal
shall not affect:-

(i) the previous operations of the
enactment and orders under repeal or
anything duly done or suffered thereunder;
or

(iii) any penalty, forfeiture or
punishment incurred in respect of any
offences committed against the enactment
and Orders under repeal; or

(iv) any investigation or remedy
in respect of any such penalty, forfeiture or
punishment, and any such investigation,
legal proceedings or remedy may be
instituted, continued or enforced and any
such penalty, forfeiture or punishment may
70 INDIAN LAW REPORTS ALLAHABAD SERIES
be imposed, as if this Act had not been
passed:

(2) If there is any other law for
the time being in force in any State,
corresponding to this Act, the same shall
upon the commencement of this Act, stand
repealed and in such case, the provisions of
section 6 of the General Clauses Act, 1897
(10 of 1897) shall apply as if such
provisions of the State law had been
repealed.

(3) Notwithstanding the repeal of
the aforesaid enactment and Orders, the
licences issued under any such enactment
or Order, which are in force on the date of
commencement of this Act, shall continue
to be in force till the date of their expiry for
all purposes, as if they had been issued
under the provisions of this Act or the rules
or regulations made thereunder.

(4) Notwithstanding anything
contained in any other law for the time
being in force, no court shall take
cognizance of an offence under the
repealed Act or Orders after the expiry of
a period of three years from the date of the
commencement of this Act.

12. In Rupesh Kumar and Another
Vs. State of U.P. 2011 (2) FAC 33,
applicants premises were raided on
25.04.2011 and on that date the Food
Safety and Standard Act, 2006 stood
enforced and as such the applicant could
not
be
prosecuted
only
under
the
provisions of The Food Safety and
Standard Act, 2006. The complaint was
filed on 27.06.2011 in the P.F. Act, 1954
and summoning order was issued on
27.06.2011. This Court quashed the
summoning order dated 27.06.2011 as all
the proceedings in the matter were taken
after enforcement of Act of 2006. This
Court observed that after enforcement of
Act of 2006, the applicant could be
prosecuted only under the provisions of
Act, 2006. While this Court quashing the
summoning order passed against the
accused by Trial Court granted liberty to
the respondents to proceed against the
revisionist under the provisions of the Act
of 2006.

13. The mandate of Section 6 of the
General Clauses Act is simply to leave
the
pending
proceedings
unaffected
which commence under the unrepealed
provisions, unless contrary intention is
expressed.
"Ambalal
Sarabhai
Enterprises Lt. Vs. Amrit Lal and
Company
(2001)
8
SCC
397
in
Gurcharan Singh Baldev Singh Vs.
Yashwant Singh A.I.R. 1992 SC 1186,
Honb'le Apex Court while considering
scope of Section 6 General Clauses Act
1897, which deals with effect of repeal of
a Central Act or regulation held that the
objective of Section 6(c) of the General
Clauses Act is to ensure protection of any
right or privilage acquired under the
repealed Act. The only exception to it is
legislative intention to the contrary. That
is, the repealing Act may expressly
provide or it may impliedly provide
against
continuance
of
such
right,
obligation or liability.

14. In the present case, P.W.1 Vivek
Kumar, the complainant has proved factual
aspects of the case by his evidence as
P.W.1, during trial of complaint case before
Court below. P.W.2, Om Ji Srivastava the
Food Clerk has stated in his evidence that
on 16.09.2013, Local Health Authority sent
sample No. KN-2010/362/VS-7 along with
5 All. Ram Ratan Vs. State of U.P. & Anr.
71
report of Public Analyst to the accused, he
proved receipt of registry as exhibit K-4
and LHA Form No. 13 (2) as exhibit K-9.
Thus, it cannot be held in present case that
the
provisions
of
Section
13(2)
of
Prevention of Food Adulteration Act, 1954
were not complied with. Section 13
provides as under:

13. Report of public analyst.--

(1) The public analyst shall
deliver, in such form as may be prescribed,
a report to the Local (Health) Authority of
the result of the analysis of any article of
food submitted to him for analysis. --3[(1)
The public analyst shall deliver, in such
form as may be prescribed, a report to the
Local (Health) Authority of the result of the
analysis of any article of food submitted to
him for analysis."

(2) On receipt of the report of the
result of the analysis under sub-section (1) to
the effect that the article of food is
adulterated, the Local (Health) Authority
shall, after the institution of prosecution
against the persons from whom the sample of
the article of food was taken and the person,
if any, whose name, address and other
particulars have been disclosed under section
14A, forward, in such manner as may be
prescribed, a copy of the report of the result
of the analysis to such person or persons, as
the case may be, informing such person or
persons that if it is so desired, either or both
of them may make an application to the court
within a period of ten days from the date of
receipt of the copy of the report to get the
sample of the article of food kept by the Local
(Health) Authority analysed by the Central
Food Laboratory.

(2A) When an application is
made to the court under sub-section (2), the
court shall require the Local (Health)
Authority to forward the part or parts of the
sample kept by the said Authority and upon
such requisition being made, the said
Authority shall forward the part or parts of
the sample to the court within a period of
five days from the date of receipt of such
requisition.

(2B) On receipt of the part or
parts of the sample from the Local (Health)
Authority under sub-section (2A), the court
shall first ascertain that the mark and seal
or fastening as provided in clause (b) of
sub-section (1) of section 11 are intact and
the signature or thumb impression, as the
case may be, is not tampered with, and
despatch the part or, as the case may be,
one of the parts of the sample under its own
seal to the Director of the Central Food
Laboratory who shall thereupon send a
certificate to the court in the prescribed
form within one month from the date of
receipt of the part of the sample specifying
the result of the analysis.

(2C) Where two parts of the
sample have been sent to the court and only
one part of the sample has been sent by the
court to the Director of the Central Food
Laboratory under sub-section (2B), the
court shall, as soon as practicable, return
the remaining part to the Local (Health)
Authority and that Authority shall destroy
that part after the certificate from the
Director of the Central Food Laboratory
has been received by the court: Provided
that where the part of the sample sent by
the court to the Director of the Central
Food Laboratory is lost or damaged, the
court shall require the Local (Health)
Authority to forward the part of the sample,
if any, retained by it to the court and on
receipt thereof, the court shall proceed in
the manner provided in sub-section (2B).
72 INDIAN LAW REPORTS ALLAHABAD SERIES

(2D) Until the receipt of the
certificate of the result of the analysis from
the
Director
of
the
Central
Food
Laboratory, the court shall not continue
with the proceedings pending before it in
relation to the prosecution.

(2E) If, after considering the
report, if any, of the food inspector or
otherwise, the Local (Health) Authority is
of the opinion that the report delivered by
the public analyst under sub-section (1) is
erroneous, the said Authority shall forward
one of the parts of the sample kept by it to
any other public analyst for analysis and if
the report of the result of the analysis of
that part of the sample by that other public
analyst is to the effect that the article of
food is adulterated, the provisions of subsections (2) to (2D) shall, so far as may be,
apply.]

(3) The certificate issued by the
Director of the Central Food Laboratory
under sub-section (2B)] shall supersede the
report given by the public analyst under
sub-section (1).

(4) Where a certificate obtained
from the Director of the Central Food
Laboratory [under sub-section (2B)] is
produced in any proceeding under this Act,
or under sections 272 to 276 of the Indian
Penal Code (45 of 1860), it shall not be
necessary in such proceeding to produce
any part of the sample of food taken for
analysis.

(5) Any document purporting to
be a report signed by a public analyst,
unless it has been superseded under subsection (3), or any document purporting
to be a certificate signed by the Director
of the Central Food Laboratory, may be
used as evidence of the facts stated
therein in any proceeding under this Act
or under sections 272 to 276 of the Indian
Penal Code (45 of 1860): [Provided that
any
document purporting
to be
a
certificate signed by the Director of the
Central Food Laboratory [not being a
certificate with respect to the analysis of
the part of the sample of any article of
food referred to in the proviso to subsection (1A) of section 16] shall be final
and conclusive evidence of the facts
stated therein.] [Explanation.--In this
section, and in clause (f) of sub-section
(l) of section 16, "Director of the Central
Food Laboratory" shall include the
officer for the time being in charge of any
Food
Laboratory
(by
whatever
designation he is known) recognised by
the Central Government for the purposes
of this section.]

15. Therefore, on perusal of above
statutory provisions, in the light of
evidence of P.W.2, it appears that the
accused has been given an opportunity to
get the sample of article of food kept by
Local Health Authority Analysed by the
Central Food Laboratory, but accused
failed to avail the opportunity.

16. Section 7 of the Act provides for
violations which will be punishable under
Section 16 of the Act. Under Section 2
[(i) "adulterant" means any material
which is or could be employed for the
purposes of adulteration;]

4 [(ia) ] "adulterated"--an article
of food shall be deemed to be adulterated--

(a) if the article sold by a vendor
is not of the nature, substance or quality
demanded by the purchaser and is to his
prejudice, or is not of the nature, substance
5 All. Ram Ratan Vs. State of U.P. & Anr.
73
or quality which it purports or is
represented to be;

----------------------(m)
if
the
quality or purity of the article falls below
the prescribed standard or its constituents
are present in quantities not within the
prescribed limits of variability but which
does not render it injurious to health:
Provided that, where the quality or purity
of the article, being primary food, has
fallen below the prescribed standards or
its constituents are present in quantities
not within the prescribed limits of
variability in either case, solely due to
natural causes and beyond the control of
human agency, then, such article shall not
be deemed to be adulterated within the
meaning of this sub-clause.

17. Thus, the present case falls within
the purview of Section 2(m) of the Act, as
the main charge in the present case against
the accused is that the milk sample taken
from him was found short of prescribed
standards as the fat contents of milk were
found 13 percent below the prescribed
standard, and as the sample did not
correspond to prescribed standard it was
held as adulterated within meaning of
Section 2(ia)(m).

18. In present case, Section 2(ia)(m)
attracts which is punishable under Section
16(1) of the Act for which a minimum
punishment of 6 months imprisonment,
which may extend to 3 years and fine not
less than Rs. 1,000/- is prescribed. In the
present case, the District Magistrate has
passed the sanction order for prosecution of
the accused which has been proved by
P.W.1.The District Magistrate has passed
sanction order in discharge of his official
duty and genuineness of said order is
presumed.

19. So far as the argument of learned
counsel that in view of repeal of Prevention
of Food Adulteration Act, 1954 after
enactment of Food Safety and Standards
Act, 2006 and assailing the cognizance
order in the present case by the appellant is
concerned. Section 97(1) of the Act of 2006
provides that with effect from such date as
the Central Government may appoint in
this behalf, the enactment and orders
specified in the second schedule shall stand
repealed. The date envisaged in sub-Section
1 of Section 97 has been specified as
5.08.2011 vide notification No. F.No.P15025/41/2011-DFQC -dated 4th August,
2011,
meaning
thereby
the
Food
Adulteration Act, 1954 shall stand repealed
on 05.08.2011. The provisions of Section
97 (2) were itself brought into force on
29.07.2010 which deals with repeal and
savings. In the present case, the date of
offence is mentioned and proved as on
05.03.2010, when accused was intercepted
by P.W.1 and sub-standard milk was found
in his possession and complaint was filed
after investigation in the case against
accused for his prosecution under Section
7/16 of P.F. Act. Thus, the proceedings,
sampling and inspection under repealed Act
were already initiated prior to repeal of the
Act which took place on 05.08.2011. Even
the cognizance in the case was taken by
Court below on 17.08.2010, prior to the
date when the P.F. Act, stood repealed.
Therefore, this argument of revisionist side
can also not be countenanced that the
cognizance in the case was barred under
law. Even Section 97(4)of The Food Safety
and Standards Act, 2006, provides as
under:
74 INDIAN LAW REPORTS ALLAHABAD SERIES

(4)
Notwithstanding
anything
contained in any other law for the time
being in force, no court shall take
cognizance of an offence under the
repealed Act or Orders after the expiry of a
period of three years from the date of the
commencement of this Act

Section 97 seeks to repeal the
enactment or orders specified in second
schedule immediately with the effect from
the date on which the Act is enacted and
comes into force, provided that such repeal
shall not affect

(i) the previous operations of the
enactment and orders under repeal or
anything duly done or suffered thereunder;

Or

(ii)
any
right,
privilege,
obligation or liability acquired, accrued or
incurrd under any of the enactment or
Orders under repeal; or

(iii) any penalty, forfeiture or
punishment incurred in respect of any
offences committed against the enactment
and Orders under repeal; or

(iv) any investigation or remedy
in respect of any such penalty, forfeiture or
punishment and any such investigation,
legal proceedings or remedy may be
instituted, continued or enforced and any
such penalty, forfeiture or punishment may
be imposed, as if this Act had not been
passed:

(2) If there is any other law for
the time being in force in any State,
corresponding to this Act, the same shall
upon the commencement of this Act, stand
repealed and in such case, the provisions of
section 6 of the General Clauses Act, 1897
(10 of 1897) shall apply as if such
provisions of the State law has been
repealed.

20. Thus, in view of Section 97(4)
also, the cognizance in the case shall be
saved as the same was taken within a
period of 3 years from the date of
commencement of the Act of 2006.

21. Thus, in opinion of this Court,
cognizance in the case by the Court of first
instance is in no manner illegal or barred
under law.

22. The revision is devoid of merit and
no
factual
or
legal
error
or
misappropriation of evidence is found on
the part of learned Trial Court as well as
Appellate Court while recording verdict of
guilt against accused for charge levelled
against him as well as in judgment of
appellate court whereby the appeal was
dismissed and order of Trial Court was
affirmed.

23. So far as, sentence is concerned,
learned counsel for the revisionist referred
to the pleadings made in supplementary
affidavit filed on behalf of the revisionist
on 07.04.2023 and further submitted that as
per report of Public Analyst, only the fat
content in the sample of milk was found to
be less than 13% of prescribed limit and
same sample was not injurious to human
health. The notice under Section 13(2) of
Food Adulteration Act, was never served on
revisionist/
accused,
the
process
of
sampling was not carried out in accordance
with provisions of Section 7 of the Act. The
revisionist is not having any prior criminal
5 All. Ram Ratan Vs. State of U.P. & Anr.
75
history, hence, at least his case may be
treated with some leniency, so far as,
sentencing is concerned, he is held in jail
custody since 20.12.2022 from date of
impugned judgment of Appellate Court, he
may be given benefit of Section 4 of
Probation of the Offenders Act, or Section
360 Cr.P.C., as the case may be. He
submitted that the sentence awarded to the
revisionist may be reduced to the period
undergone
as
he has
already
spent
substantial portion of the sentence awarded
in impugned judgment.

24. Learned counsel for revisionist
cited judgment of Hon'ble Apex Court in
Nemi Chand Vs. State of Rajasthan
(2018) 17 SCC 448, in Criminal Appeal
No. 214 of 2016.

25. I have gone through the judgment
of Hon'ble Apex Court in Nemi Chand Vs.
State of Rajasthan (supra) in that case,
the appellant was tried and convict for
offence under Section 7/16 P.F. Act by the
Trial Court and was sentence to undergo 6
months rigorous imprisonment as well as
fine of Rs. 1,000/- and in default further
rigorous imprisonment for one month. This
order was challenged by the appellant by
filing appeal before the Sessions Judge,
which was dismissed on 11.09.1996,
thereby affirming the order of the Trial
Court. Hon'ble Apex Court observed that it
is not in dispute that the charge against the
appellant was only of sub-standardization
of goods. It was observed that in judgment
of this Court in T. Barai vs Henry Ah Hoe
And Another 1983(1) SCC 177, this Court
held
that
since
the
amendment
of
Prevention of Food Adulteration Act,
Section 16 A was added in the P.F. Act
through Central Act 34 of 1976 and it was
beneficial to the accused persons, it can be
applied even with respect to earlier cases as
well which are pending in the Court.

26. Hon'ble Apex Court in Nemi
Chand case extended the benefit of newly
added Section 16(A) to accused convict
and modified his sentence to the extent that
he was awarded fine of Rs. 50,000/- and
the substantive sentence of 6 months
imprisonment awarded to him by Trial
court and affirmed by first Appellate court
was quashed.

27. In present case also, although Trial
Court adopted procedure of summons trial
in the case for convicting and sentencing
the accused, the provisions of Section
16(A) of Prevention of Food Adulteration
Act, 1954 cannot be lost sight which
provide as under:

16A. Power of court to try cases
summarily --

Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), all offences
under sub-section (1) of section 16 shall be
tried in a summary way by a Judicial
Magistrate of the first class specially
empowered in this behalf by the State
Government or by a

Metropolitan Magistrate and the
provisions of sections 262 to 265 (both
inclusive) of the saidCode shall, as far as
may be, apply to such trial:

Provided that in the case of any
conviction in a summary trial under this
76 INDIAN LAW REPORTS ALLAHABAD SERIES
section, it shall be lawful for the magistrate
to pass a sentence of imprisonment for a
term not exceeding one year:

Provided further that when at the
commencement of, or in the course of, a
summary trial under this section it appears
to the magistrate that the nature of the case
is such that a sentence of imprisonment for
a term exceeding one year may have to be
passed or that it is, for any other

reason, undesirable to try the
case summarily, the Magistrate shall after
hearing the parties,record an order to that
effect and thereafter recall any witness who
may have been examined and

proceed to hear or rehear the
case in the manner provided by the said
Code

28. Present offence is also punishable
under Section 16(1)(a)(i). There is neither
allegation that the sample in question of
beverage (milk) collected from the accused,
was in any manner injurious to health of its
consumer. The offence is itself of technical
nature as the fat content of milk was found
only 13 percent below than prescribed
standard. Thus, in this case also the main
charge against the accused appellant was that
only of sub-standardization of the beverage
(milk) which was allegedly carried by him for
selling on the date and time of inspection by
P.W.1.

29. Therefore, in the light of judgment
of Hon'ble Apex Court in Nemi Chand Vs.
State of Rajasthan (supra), the benefit of
Section 16(A) of the Act, is liable to be
extended to the revisionist, in the case which
provides that all the offences under subSection 1 of Section 16 shall be tried in a
summary way and provisions of Section 262
and 265 (both inclusive) of the said Code of
Civil Procedure shall as far as may be applied
to such trial. Section 262 (2) provides that in
summary trials , the procedure specified in
this Code for the trial of summons- case shall
be followed except as hereinafter mentioned
and no sentence of imprisonment for a term
exceeding three months shall be passed in the
case of any conviction under this Chapter.

30. As the case of accused revisionist is
covered under Section 16(1) of the Act of P.F.
Act, in respect of fact that Court did not adopt
procedure of summary trial in the case, he
deserves to be extended benefit of provisions
of Section 16(A) of the Act, which was
existing on the date of the offence and
keeping in view the provision of Section
262(2) Cr.P.C. his substantive sentence is
liable to be reduced with 3 months as
provided therein.

31. In view of the above, the revision
is partly allowed. The conviction recorded
by trial court against revision is affirmed.
The sentence imposed upon the revisionist
is
modified
and
simple
3
months
imprisonment is awarded to him, however,
fine of Rs. 5,000/- awarded by the Court
below will remain intact. As the revisionist
had already undergone this modified
sentence of 3 months imprisonment, he will
be released from jail custody immediately
in respect of present case, if he pays the
fine awarded in impugned judgment or
undergoes the sentence awarded in default
of payment of fine, as the case may be.

32. Let a copy of this order be sent to
Trial Court concerned for compliance.
5 All. Sandeep Kumar Vs. State of U.P. & Anr.
77
----------
(2023) 5 ILRA 77
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.05.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Revision No. 523 of 2023

Sandeep Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sudhir Kumar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 319 - Power to
proceed against other persons appearing
to be guilty of offence - power under
section 319 of Cr.P.C. can be invoked
and
exercised
before
the
pronouncement
of
the
order
of
sentence.(Para -13 )

Plea has been raised - challenging trial court's
erroneous summoning of accused-revisionist -
under
section
319
of
Cr.P.C.
before
sentence.(Para - 12)

HELD:-Court finds that the trial court has
jurisdiction under section 319 of Cr.P.C.
before the pronouncement of the judgment.
Trial court exercised its jurisdiction before the
order
of
sentence,
indicating
no
erroneousness in the impugned judgment and
order. (Para -13)

Revision dismissed. (E-7)

List of Cases cited:

Sukhpal Singh Khaira Vs St. of Punj., 2023 (1)
SCC 289
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Sudhir Kumar Singh,
learned counsel for the revisionist, Sri
Girijesh Dwivedi, learned A.G.A.