# Revisionist v. State of U.P. and another

- **Citation:** (2006) 3 ILRA 1239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-09
- **Case number:** Criminal Revision No. 5308 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-another-40692
- **Pages:** 4

## Headnote

Prevention of food Adulteration. Act-S16-(P)-Lesser
Punishment-Revisionist
found selling eatable substance-without
having valid licence finding recorded by
the Court below confirmed-Quantum of
punishment-without
consideration
of
second
proviso-
held
not
proper
revisionist
already
undergone
the
sentenced for two month punishment of
3
month
R.I.
reduced
to
already
undergone with fine of Rs.500/-.

Held: Para 11

Coming to present revision at hand it is
to be noted that the revisionist is a petty
shopkeeper in a small Kasba of a small
town Jaunpur. There are no allegations
against
him
for
adulteration
or
misbranding of food materials. There are
no allegations against him for selling
insect infested food or food which was
unfit for human consumption. There are
also no allegations that he did not obtain
license intentionally and deliberately.
The shop it seems is the only source of
livelihood of his family. More over the
revisionist
had
been
in
jail
since
6.9.2006 after the dismissal of his appeal
and therefore he had already under gone
two months of imprisonment. In this
view of the matter I am of the opinion
the interest of justice will be served by
reducing his sentence of imprisonment
to the period already under gone with
fine of Rs. Five hundred to be paid within
one month, if not already paid.

## Text

3All] Santosh Kumar V. State of U.P. and another 1239
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED ALLAHABAD: 09-11-2006.

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 5308 of 2006

Santosh Kumar

...Revisionist
Versus
State of U.P. and another

...Opposite parties

Counsel for the Revisionist:
Sri Sanjay Kumar Singh.

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

Prevention of food Adulteration. Act-S16-(P)-Lesser
Punishment-Revisionist
found selling eatable substance-without
having valid licence finding recorded by
the Court below confirmed-Quantum of
punishment-without
consideration
of
second
proviso-
held
not
proper
revisionist
already
undergone
the
sentenced for two month punishment of
3
month
R.I.
reduced
to
already
undergone with fine of Rs.500/-.

Held: Para 11

Coming to present revision at hand it is
to be noted that the revisionist is a petty
shopkeeper in a small Kasba of a small
town Jaunpur. There are no allegations
against
him
for
adulteration
or
misbranding of food materials. There are
no allegations against him for selling
insect infested food or food which was
unfit for human consumption. There are
also no allegations that he did not obtain
license intentionally and deliberately.
The shop it seems is the only source of
livelihood of his family. More over the
revisionist
had
been
in
jail
since
6.9.2006 after the dismissal of his appeal
and therefore he had already under gone
two months of imprisonment. In this
view of the matter I am of the opinion
the interest of justice will be served by
reducing his sentence of imprisonment
to the period already under gone with
fine of Rs. Five hundred to be paid within
one month, if not already paid.

(Delivered by Hon'ble Vinod Prasad, J.)

1. The revisionist Santosh Kumar
was tried in Case No. 1055 of 1995, State
Versus Santosh Kumar by ACJM, Court
No. 12, Jaunpur, u/s 7/16 of Prevention of
Food Adulteration Act, P.S. Jafrabad,
district Jaunpur. The trial Court finding
the case of the prosecution to be correct,
convicted the revisionist u/s 16 (1) (A) of
PFA Act and sentenced him for three
months R.I. and to pay a fine of Rs.500/-
vide its order dated 15.4.2002. Aggrieved
by the aforesaid order the revisionist
preferred an appeal before the Sessions
Judge Jaunpur, which was registered as
Criminal Appeal No. 86 of 2002 Santosh
Kumar versus State of U.P. The aforesaid
appeal was transferred to the court of
Additional Sessions Judge/ Fast Track
Court III, Jaunpur. The lower appellate
court dismissed the appeal vide its
judgment and order dated 6.9.2006 and
confirmed the conviction and sentenced
awarded by the trial court. The revisionist
there after has challenged the both the
orders in instant criminal revision, which
was filed on 12.9.206.

2. The prosecution case in short is
that Ram Autar Yadav, The Food
Inspector, inspected the shop of the
present revisionist, Santosh Kumar on
4.6.1995 at about 5 P.M. and he found
that the revisionist was selling eatables
without license. The Food Inspector
demanded the license from the revisionist
but he could not produce the same. The
independent witnesses were called by the
1240 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Food Inspector but None of them became
ready to be a witness. The Food Inspector
prepared the notice in duplicate and gave
one copy to the revisionist and obtained
his signatures. However Shital Deen
(BHW) signed on the notice. The Food
Inspector applied for sanction to the CMO
and after obtaining the same he filed a
complaint in the court against the
revisionist, who was summoned for
committing
an
offence
u/s
7/16
Prevention of food Adulteration Act and
was charged with the said offence.

3. During the trial the Food
Inspector was examined as P.W.1 and
Harihar Chaubey as P.W. 2. No other
witness
was
examined
by
the
prosecution.P.W.1 testified regarding the
absence of license for selling the eatable
by the revisionist in his shop situated at
Jafrabad,
district
Jaunpur.
He
also
testified that CMO granted the sanction
on 26.6.1995,

P.W. 2 Harihar Chaubey who is the
clerk in the office of CMO had testified
regarding the sanction granted by the
CMO.
The revisionist his statement u/s 313
Cr. P.C. denied selling of eatable in his
shop and took the defence of false
implication.

4. Believing the prosecution case the
trial court convicted the revisionist and
the appeal filed by him was also rejected.
Hence this revision.

5.

Learned
counsel
for
the
revisionist
contended
that
both
the
impugned orders are absolutely wrong
and the revision deserves to be allowed
and the revisionist be acquitted.

6. Learned AGA on the other hand
contended that both the impugned orders
are passed on concurrent findings of fact
and none of the impugned order suffers
from any illegality. He submitted that the
findings of fact cannot be disturbed in a
revisional jurisdiction without there being
any error of law and perversity in
recording the same.

7. I have considered the submissions
made on behalf of rival sides.

So far as the findings of fact
recorded by both courts are concerned,
the said findings do not suffer from any
error of law or perversity, therefore, it
cannot be said that conviction of the
revisionist recorded by both the courts
below is bad in law, hence I confirm the
conviction of the revisionist recorded by
the ACJM and confirmed by lower
appellate court.

8. However, on the question of
sentence, which was argued by the
learned counsel for the revisionist, I find
that selling of eatable is offence u/s 7 (iii)
of P.F.A. Act. The said offence is
punishable u/s 16 (ii) us qualified with
two provisos. The second proviso to the
aforesaid section provides that the court
may, for any adequate and special reason
to be mentioned in the judgment, impose
a sentence of imprisonment for a term,
which may extend to 3 months and with
fine, which may extend to 500/- rupees.
The case of the present revisionist is
covered under the said proviso.

9. The said proviso is an exception
to the minimum punishment rule provided
under the Act which is six months and to
pay a fine of Rs. One thousand. The said
proviso is quoted below:-
3All] Santosh Kumar V. State of U.P. and another 1241
Sec. 16 Penalties. -(1)
(a)(i) (ii)
Provided..........
"Provided further that if the offence
is under sub- clause ( ii ) of clause (a)
and is with respect to contravention of
any rule made under clause (a) or clause
(g) of sub- section (1- A ) of Section 24 ,
the court may, for any adequate and
special reasons to be mentioned in the
judgment, impose and sentence of
imprisonment for a term which may
extend to three months and with fine
which may extend to five hundred
rupees".

10. A bare reading of the said
proviso makes it clear that so far as this
proviso is concerned the legislature has
not provide the minimum sentence as in
that event it could have enacted that the
sentence should be not be less than three
months which it has not done. It provides
that the sentence may extend to three
months and with fine, which may extend
to five hundred rupees. Thus far the
offences covered under this proviso the
minimum sentence is not provided by the
legislature. How ever what the legislature
has provided is that while granting the
benefit of the said proviso the court must
record adequate and special reasons for
the same. What are those special and
adequate reasons is left to be decided by
the court, which may vary from case to
case and fact to fact. The case of the
present revisionist is covered under the
said proviso but both the courts below had
not addressed them selves to the said
proviso and did not at all said any thing
regarding not giving the benefit of it to
the revisionist, which in my opinion is a
must. The proviso is added in the Statute
not only as printed letters but has been
incorporated in the Statute book to be
applied in appropriate cases.

(Emphasis mine)

11. Coming to present revision at
hand it is to be noted that the revisionist is
a petty shopkeeper in a small Kasba of a
small town Jaunpur. There are no
allegations against him for adulteration or
misbranding of food materials. There are
no allegations against him for selling
insect infested food or food which was
unfit for human consumption. There are
also no allegations that he did not obtain
license intentionally and deliberately. The
shop it seems is the only source of
livelihood of his family. More over the
revisionist had been in jail since 6.9.2006
after the dismissal of his appeal and
therefore he had already under gone two
months of imprisonment. In this view of
the matter I am of the opinion the interest
of justice will be served by reducing his
sentence of imprisonment to the period
already under gone with fine of Rs. Five
hundred to be paid within one month, if
not already paid.

12. Resultantly this revision is party
allowed. The conviction of the revisionist
is under section 7/16 of the PFA Act is
maintained but his sentence is reduced to
the period already under gone with fine of
Rs. Five hundred. He is allowed one
month time to deposit the said fine, if not
deposited by him already. The revisionist
shall be released from jail if he is not
wanted in any other case forth with. In the
event of failure of the revisionist to
deposit the fine awarded within one
month the trial court concerned is directed
to realize the same as arrears of land
revenue from him with one week
thereafter.
1242 INDIAN LAW REPORT ALLAHABAD SERIES [2006
The revision is partly allowed with
the aforesaid directions.
Revision Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 11194

Triloki Nath

...Petitioner
Versus
The State of Uttar Pradesh through
Principal Secretary Health Department,
Health Department, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Rai

Counsel for the Respondents:
S.C.

Constitution of India. Art. 226-Minimum
Pay Scale-appointment on daily wages
basis as Driver-working on the basis of
interim Order if no substantive appointee
joined-claim for minimum pay scale as
payable
to
regular
Drivers-held-not
entitled except the minimum wages
prescribed in respect of employment.

Held: Para 7 & 8

In view of the aforesaid settled legal
position, the petitioner is not entitled to
the minimum of the pay scale admissible
to the post of driver appointed on
regular
basis.
It
is
held
that
the
petitioner may be paid wages strictly in
accordance with the minimum wages
prescribed
in
respect
of
such
employment.

8. So far as the judgment relied upon
the learned counsel for the petitioner in
the case of State of U.P. and others Vs.
Putti Lal reported in 2002 (2) UPLBEC,
1595, is concerned, suffice is to pointed
out
that
the
same
is
clearly
distinguishable in
the
facts of the
present case, more so when the legal
position
has
been
clarified
by
subsequent judgments of the Hon'ble
Supreme Court in the case of State of
Haryana & Ors. Vs. Tilak Raj & Ors.
(supra), the same must necessarily
prevail.
Case law discussed:
2002(2) U.P.L.B.C-1595

(Delivered by Arun Tandon, J.)

1. Heard Sri Rajendra Rai, Advocate
on behalf of the petitioner and kearned
Standing
Counsel
on
behalf
of
respondents.

2. From the records of the present
writ petition, it is apparently clear that the
services of petitioner, who was employed
as daily wage employee, were terminated
under an order dated 30th June, 1992. The
order dated 30th June 1992 was challenged
before this Court by means of Civil Misc.
Writ Petition No.29855 of 1992 (Mohan
Prasad and Others Vs. State of U.P. and
Others). In the writ petition an interim
order was granted by this Court dated 19th
August, 1992, whereunder the order
terminating, the petitioner's services, was
stayed, and it was provided that the
petitioner shall be paid salary and it was
provided that the petitioner shall be paid
salary and other benefits. It was further
clarified that the order will be effective
only if no substantive appointment has
been made on the post held by the
petitioner and the said post held by the
petitioner and the said post has not been
abolished. For ready reference interim
order of this court is being quoted herein
below: