# Revisionist v. State of U.P

- **Citation:** (2011) 3 ILRA 1181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-26
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-42060
- **Pages:** 3

## Headnote

Code of Criminal Procedure Code-Section
233-revisionist facing Trail for offence
under Section 27/273-applicant moved
application
for
getting
the
sample
analyzed
by
Director,
Central
Food
Laboratory-rejected-in
absence
of
specific provision-held-even in absence
of provision accused entitled to adduce
defence evidence-like prosecution who
relied the analysis report-treating liquor
unfit for human consumption-impugned
order
not
sustainable-consequential
directions issued.

Held: Para 6

The case is at the stage of defence
evidence. The defence evidence does not
mean that only oral evidence is to be
adduced. To get the sample analyzed by
a Laboratory and producing the report of
such analysis and examination of expert
in evidence is also part of defence
evidence. In these circumstances, even
though, there is no provision in Cr.P.C.
for sending the sample of liquor to
Director, Central Food Laboratory, there
is no bar either. The rights which are
available to the prosecution are also
available to the defence. Both the parties
have to be treated equally. In these
circumstances,
the
impugned
order
cannot be sustained and is liable to be
set-aside.

## Text

3 All] Nainapati V. State of U.P.
1181
submitted against the applicant, the same
may be quashed.

4. In reply of the above contention,
it is submitted by learned A.G.A. that this
plea may be taken by the applicant by
way of moving the discharge application.

5. Considering the submissions,
made by learned counsel for the applicant
and learned A.G.A., it is directed that in
case
applicant
moves
discharge
application within 30 days from today
before the court concerned through his
counsel, the same shall be heard and
disposed of under the provisions of law.
Till the disposal of that application, the
applicant shall not be arrested.

6.

With
this
direction,
this
application is finally disposed of.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Revision No. - 2614 of 2011

Nainapati

 ...Revisionist
Versus
State of U.P.

 ...Opposite Party

Counsel for the Revisionist:
Sri B.N Singh

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

Code of Criminal Procedure Code-Section
233-revisionist facing Trail for offence
under Section 27/273-applicant moved
application
for
getting
the
sample
analyzed
by
Director,
Central
Food
Laboratory-rejected-in
absence
of
specific provision-held-even in absence
of provision accused entitled to adduce
defence evidence-like prosecution who
relied the analysis report-treating liquor
unfit for human consumption-impugned
order
not
sustainable-consequential
directions issued.

Held: Para 6

The case is at the stage of defence
evidence. The defence evidence does not
mean that only oral evidence is to be
adduced. To get the sample analyzed by
a Laboratory and producing the report of
such analysis and examination of expert
in evidence is also part of defence
evidence. In these circumstances, even
though, there is no provision in Cr.P.C.
for sending the sample of liquor to
Director, Central Food Laboratory, there
is no bar either. The rights which are
available to the prosecution are also
available to the defence. Both the parties
have to be treated equally. In these
circumstances,
the
impugned
order
cannot be sustained and is liable to be
set-aside.

(Delivered by Hon'ble S.C. Agarwal,J. )

1. This revision under section
397/401 of the Code of Criminal
Procedure is directed against order
dated 30.6.2011 passed by Additional
Sessions Judge (Ex-Cadre), Court No.1,
Jalaun at Orai in Sessions Trial No.212
of 2010, State Vs. Nainapati under
section 60 Excise Act and sections 272 /
273
IPC,
P.S.
Konch,
whereby
application of the accused-revisionist
for taking another sample from the case
property and sending it to another
expert was rejected.

2. The revisionist is facing trial
under sections 272 / 273 IPC for
possessing illicit liquor, which was
found by the Public Analyst to be
injurious to health and unfit for human
1182 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
consumption, as the sample was found
containing urea.

3. Learned counsel for the
revisionist submitted that the report
given by Public Analyst, Lucknow is
not correct and the revisionist has a
right of rebuttal of getting the sample of
liquor analyzed by a higher authority
i.e. Director, Central Food Laboratory,
Kolkata or Chandigarh and learned
Additional Sessions Judge committed
illegality in rejecting the application on
the ground that there is no such
provision in the code of criminal
procedure to enable the defence to get
the sample analyzed.

4. Learned counsel for the
revisionist has placed reliance on
section 233 Cr.P.C. to show that the
accused is entitled to adduce evidence in
defence and right to adduce defence
evidence includes right to get the
sample reanalyzed from a competent
Laboratory. In the alternative, the
submission is that if the prosecution has
a right to get the sample analyzed by
Public Analyst, on the same analogy,
the defence has also a right to get the
sample analyzed by Director, Central
Food Laboratory, as provided in the
Prevention of Food Adulteration Act.

5. Learned A.G.A. supported the
impugned order and submitted that there
is no reason to doubt the report of
Public
Analyst
and
without
any
substantial cause, the sample cannot be
sent to Central Food Laboratory and the
provisions of the Prevention of Food
Adulteration Act are not applicable in
the instant case.

6. To prove the allegation that
sample of liquor was unfit for human
consumption and injurious to health, the
police and the prosecution relied upon
the report of Public Analyst, to whom
the sample of liquor was sent for
analysis. If a right has been conferred
on one party, there is no reason why the
said right cannot be exercised by the
adverse party. When on one hand, the
report of Public Analyst is being used
against the revisionist to prove that the
sample was injurious to health and
contained urea, the defence also has a
right to get the another sample of the
seized material sent to the Director,
Central Food Laboratory for analysis.
The case is at the stage of defence
evidence. The defence evidence does
not mean that only oral evidence is to be
adduced. To get the sample analyzed by
a Laboratory and producing the report
of such analysis and examination of
expert in evidence is also part of
defence
evidence.
In
these
circumstances, even though, there is no
provision in Cr.P.C. for sending the
sample of liquor to Director, Central
Food Laboratory, there is no bar either.
The rights which are available to the
prosecution are also available to the
defence. Both the parties have to be
treated equally. In these circumstances,
the impugned order cannot be sustained
and is liable to be set-aside.

7. Revision is allowed.

8. Impugned order dated 30.6.2011
is set-aside.

9.

The
application
of
the
revisionist for re-examination of the
sample stands allowed.
3 All] Hargyan V. State of U.P. and another
1183

10. Learned Addl. Sessions Judge
is directed to summon the case property
in Court and in presence of both the
parties, Court shall direct taking up of a
proper representative sample, which
shall be sealed with the seal of the Court
and shall be sent to Director, Central
Food Laboratory for analysis. For this
purpose, all steps shall be taken and all
fees shall be paid by the revisionist in
accordance with law and the rules.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Revision No. - 4207 of 2011

Hargyan

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri L.S. Yadav

Counsel for the Respondent:
Govt. Advocate

Code
of
Criminal
Procedure-Section
397/401-criminal Revision-against the
Summoning
order
by
Magistrate-by
criticizing the Investigation Officer for
not recording the statements of victimand fail to possess the clothes-adopted
novel method by passing summoning
order on affidavit of complainant and the
witness-complete go-by to the directions
of Division Bench in case of Pakhandoheld-can not sustained-set-a-side.

Held: Para 8

In the instant case, neither cognizance
was taken on the basis of the material
available in the case diary nor the
protest
petition
was
treated
as
a
complaint. The cognizance cannot be
taken on the basis of affidavits of the
complainant or the witnesses, therefore,
the order passed by the Magistrate
cannot be sustained and is liable to be
set-aside.
Case law discussed:
2001 (43) ACC 1096

(Delivered by Hon'ble S.C. Agarwal, J. )

1. Heard learned counsel for the
revisionist and learned A.G.A. for the
State and perused the material available
on record.

2. No notice is issued to private
opposite party in view of the order
proposed to be passed today, however,
liberty is reserved for private opposite
party
to
apply
for
variation
or
modification of this order if he/she feels
so aggrieved.

3. This revision under section
397/401 Cr.P.C. is directed against
order dated 6.7.2011 passed by Judicial
Magistrate, Moradabad in criminal case
no.1394 of 2010 (Smt. Sudha Rani Vs.
Hargyan and others) arising out of case
crime no.524 of 2008, P.S. Behjoi,
District Moradabad, whereby the final
report submitted by the police was
rejected, cognizance was taken and the
revisionist Hargyan was summoned to
face trial under sections 376, 506 IPC.

4. Learned counsel for the
revisionist submitted that the Magistrate
has neither taken cognizance on the
basis of material available in the case
diary nor the procedure prescribed for
complaint cases was adopted, but a
novel method was adopted by the
Magistrate and cognizance has been
taken on the basis of affidavits of the