# Shamim Ahmad / (In Jail) v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-04
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamim-ahmad-in-jail-v-state-of-u-p-ors-44755
- **Pages:** 7

## Headnote

A. Criminal Law -Prevention of Food
Adulteration Act,1954 - Section 7/16 - noncompliance of Section 10(7) & 13(2) - Code
of Criminal Procedure, 1973-Section 401
r/w Section 397 - proceeding will not be
vitiated for non-availibility of independent
witness and section 10(7) will not help the
accused at all - for mere absence of
corroboration, Food Inspector's evidence
cannot be disbelieved. (Para 7to 15)

B.
It
cannot
be
doubted
that
prosecution,
when
challenged,
must
satisfy that notice issued under section
13(2) has been served upon the accused
but where accused at the stage of
revision
raise
such
plea
for
noncompliance of section 13(2), the court
would not allow accused to take such
factual plea when the stand taken before
courts below shows that service of
notice was not disputed. The mere fact
that mention of wrong Court was an
issue raised before court below is
sufficient to prove the fact that notice
was actually served upon the revisionist.
 (Para18 to 22)

Revision dismissed (E-6)

List of cases cited:-

## Text

382 INDIAN LAW REPORTS ALLAHABAD SERIES
the penalty provided u/s 188 of the Indian
Penal
Code
and
in
the
case
of
disobedience the Magistrate may also
cause such act to be performed and may
also recover the cost of performing it
from the properties of such person. In the
present matter, this procedure has not
been adopted for the reason not known to
this Court and only best known to the
third respondent. To observe the least, the
manner in which the impugned order has
been passed by third respondent reflects
much about an unjustified and unmindful
performance
of
statutory
obligations
bestowed upon him and the state of
affairs leave much to be desired.

23. So far as the submission made on
behalf of revisionist regarding demolition of
boundary wall even after attaining knowledge
of interim order passed by this Court on
15.02.2019 is concerned, this Court finds that
the revisionist has already invoked contempt
jurisdiction of this Court in a separate
proceeding and as such this Court abstains
itself from making any observation, lest it
may cause prejudice to the rights of the parties
to the contempt proceeding, which is
subjudice according to submission made by
the counsel for the revisionist.

24. Resultantly the revision succeeds
and is allowed and the impugned order dated
11.01.2019 passed by the City Magistrate,
Gorakhpur is hereby set aside.
----------

(2019)11ILR A382
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 1183 OF 1986
Shamim Ahmad
 ...Accused/Applicant (In Jail)
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:

Sri K.B. Garg, Sri Mukhtar Alam, Sri S.A.
Imam, Sri Saquib Mukhtar, Sri T.B. Islam

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

A. Criminal Law -Prevention of Food
Adulteration Act,1954 - Section 7/16 - noncompliance of Section 10(7) & 13(2) - Code
of Criminal Procedure, 1973-Section 401
r/w Section 397 - proceeding will not be
vitiated for non-availibility of independent
witness and section 10(7) will not help the
accused at all - for mere absence of
corroboration, Food Inspector's evidence
cannot be disbelieved. (Para 7to 15)

B.
It
cannot
be
doubted
that
prosecution,
when
challenged,
must
satisfy that notice issued under section
13(2) has been served upon the accused
but where accused at the stage of
revision
raise
such
plea
for
noncompliance of section 13(2), the court
would not allow accused to take such
factual plea when the stand taken before
courts below shows that service of
notice was not disputed. The mere fact
that mention of wrong Court was an
issue raised before court below is
sufficient to prove the fact that notice
was actually served upon the revisionist.
 (Para18 to 22)

Revision dismissed (E-6)

List of cases cited:-

1. Shri Ram Labhaya Vs. Municipal Corporation
of Delhi and Another,1974(4) SCC 491

2. K. Harikumar Vs. Food Inspector, Punaloor
Muncipality (1995) Supp. (3) SCC 405
3 All. Shamim Ahmad Vs. State of U.P. & Ors.
383
3. Pradeep Narayan Madqaonkar & Ors
Vs.State of Mah. 1995(4) SCC 255

4. Balbir Singh Vs. State 1996(11) SCC 139

5. Paras Ram Vs. State of Haryana 1992(4)
SCC 662

6. Sama Alana Abdulla Vs. State of Gujrat
1996(1) SCC 427

7. Anil alias Sadashiv Nandoskar Vs. State of
Mah.,1996(2) SCC 589

8. Subhash Singh Thakurshyam Vs. State(Thru
CBI) (1997) 8 SCC 732

9. State of U.P. Vs. Zakaullah 1998 Cri. L.J.
863, para 10

10. Girja Prasad Vs. State of M.P. (2007) 7
SCC 625

11. Vijendra Vs. State of U.P. and Ors(Cri. Ap.
1167 of 2019)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Mukhtar Alam,
Advocate, for Revisionist and learned
A.G.A. for respondents.

2. This criminal revision under
Section 401 read with Section 397
Cr.P.C. has been filed aggrieved by
judgment and order dated 15.03.1985
passed by Special Judicial Magistrate,
Nagina, Bijnor in Case No. 1335 of 1982
convicting Revisionist under Section 7/16
of Prevention of Food Adulteration Act,
1954 (hereinafter referred to as "Act,
1954") and sentencing him to undergo six
months' rigorous imprisonment and a fine
of Rs. 1000/- Thereagainst AccusedRevisionist preferred Criminal Appeal
No. 78 of 1985 which has been dismissed
by 2nd Additional Sessions Judge, Bijnor
vide
judgment
and
order
dated
28.06.1980.

3. The prosecution story, inter alia,
is that on 30.04.1982 at about 07.00 AM,
Sri Virendra Kumar, Food Inspector
found
Accused-Revisionist,
Shamim
Ahmad, carrying about 20 liters of
buffalo milk in two canes on his cycle for
sale
on
Nethaur
Road
in
Village
Mehmoodpur,
District
Bijnor.
Food
Inspector suspected the milk to be
adulterated and thereupon after disclosing
his identity and serving necessary notice,
took a sample of 660 M.Ls. buffalo milk
from Accused-Revisionist and paid the
cost. Necessary receipt was issued to
Revisionist who put thumb mark on it.
Sample was divided into three parts and
after observing all formalities, one was
sent to Public Analyst for examination
and rest two were deposited in the Office
of Chief Medical Officer, Bijnor. Public
Analyst found the milk deficient in fat
contents by 17 per cent and non fatty
contents by 1 per cent. After obtaining
necessary sanction from Chief Medical
Officer, Bijnor, complaint was filed by
Food
Inspector
against
AccusedRevisionist in the Court.

4. Accused-Revisionist was prosecuted
for the offence under Section 7/16 of Act,
1954. In his statement under Section 313
Cr.P.C. he denied to have sold any sample of
milk to Food Inspector. According to him, he
did not carry on the profession of selling milk
but he was a Labourer. He was doing labour
in the Hospital, Kotwali, Food Inspector
wanted to take work from him to which he
did not agree and thereupon Food Inspector
got his thumb impression on the alleged
notice Ex. Ka-1 and receipt Ex. Ka.-2.

5. Prosecution, in support of its
case, examined Sri Virendra Kumar, Food
Inspector, as PW-1, Sri Athar Husain,
Clerk in office of Chief Medical Officer
384 INDIAN LAW REPORTS ALLAHABAD SERIES
as PW-2 and Sri Mool Chand, Vaccinator,
as PW-3. Revisionist in defence examined
Raees Ahmad as DW-1.

6. After recording oral testimony
and perusing material on record, Trial
Court convicted and sentenced AccusedRevisionist,
as
stated
above,
vide
judgment and order dated 15.03.1985
which has been confirmed by Appellate
Court by dismissing Revisionist's appeal,
vide
judgment
and
order
dated
28.06.1980. This revision has been filed
challenging both the aforesaid orders.

7. Judgements of Courts below have
been challenged on the grounds that; (1)
there was non compliance of Section
10(7) of Act, 1954 inasmuch there was no
independent witness for sample taken by
Food Inspector, (2) before taking sample,
milk was not properly shaken which is
mandatory requirement, (3) copy of
Public Analyst Report was not supplied to
Revisionist in time and there was a
complete non compliance of Section
13(2) of Act, 1954.

8. So far as first aspect is concerned,
it is now well settled that when
independent witnesses are not available,
Food Inspector can proceed to take
sample and mere non-availability of
independent witness will not vitiate
proceedings. A three Judges Bench of
Apex Court in Shri Ram Labhaya Vs.
Municipal Corporation of Delhi and
another, 1974(4) SCC 491 has held that
if no independent witness was willing to
cooperate, Food Inspector cannot compel
their presence. Hence, proceedings will
not be vitiated for non availability of
independent witness and Section 10(7)
will not help the accused at all.

9. Now coming to second aspect, it
cannot be doubted that milk is a primary
product containing fat content and the fat
content would also depend on the manner
in which sample is taken after stirring.
Supreme Court in K. Harikumar Vs.
Food Inspector, Punaloor Municipality
1995 Supp. (3) SCC 405 has held that
stirring and churning of milk before
taking sample is necessary. Therefore, it
was necessary to establish that the sample
was taken in a proper manner after
stirring which would make the fat and
non-fat into homogenous mixture.

10. In the present case, record shows
that Food Inspector though stated that he
stirred and churned the milk before taking
sample, but it is contended that there is no
other evidence to corroborate the same. I
find that on this aspect, there is no crossexamination.
For
mere
absence
of
corroboration, Food Inspector's evidence
cannot be disbelieved particularly when I
do not find any otherwise evidence to
doubt the testimony of Food Inspector. It
has been repeatedly held that mere fact
that if a Police official has given
evidence, the same is not to be
disbelieved if not corroborated by any
other evidence.

11. If the evidence of police officer
is found acceptable, it would be an
erroneous proposition that Court must
reject prosecution version solely on the
ground that no independent witness was
examined.
In
Pradeep
Narayan
Madqaonkar & others vs. State of
Maharashtra 1995 (4) SCC 255, it was
held:

"Indeed, the evidence of the
official (police) witnesses cannot be
discarded merely on the ground that they
3 All. Shamim Ahmad Vs. State of U.P. & Ors.
385
belong to the police force and are, either
interested in the investigation of the
prosecuting agency but prudence dictates
that their evidence needs to be subjected
to strict scrutiny and as far as possible
corroboration of their evidence in
material particulars should be sought.
Their desire to see the success of the case
based on their investigation, requires
greater
care
to
appreciate
their
testimony."

12. In Balbir Singh Vs. State
1996(11) SCC 139, Court has repelled a
similar
contention
based
on
nonexamination of independent witnesses.
The same legal position has been
reiterated time and again by Apex Court
vide Paras Ram vs. State of Haryana
1992 (4) SCC 662, Sama Alana Abdulla
vs. State of Gujarat 1996 (1) SCC 427
and
Anil
alias
Andya
Sadashiv
Nandoskar vs. State of Maharashtra
1996 (2) SCC 589.

13.

In
Subhash
Singh
Thakurshyam vs State (Through CBI)
(1997) 8 SCC 732, a Two Judge Bench of
the Apex Court comprising of Hon'ble M.
Mukherjee and Hon'ble K. Thomas JJ, in
para 90 observed:

"....We should not forget that
the time of the raid was during the odd
hours when possibly no pedestrian would
have been trekking on the road nor any
shopkeeper remaining in his shop nor a
hawker
moving
around
on
the
pavements."

14. In State of U.P. v. Zakaullah
1998 Cri. L.J. 863 in para-10, it is said:

"The necessity for "independent
witness" in cases involving police raid or
police search is incorporated in the
statute not for the purpose of helping the
indicted person to bypass the evidence of
those panch witnesses who have had some
acquaintance with the police or officers
conducting the search at some time or the
other. Acquaintance with the police by
itself
would
not
destroy
a
man's
independent outlook. In a society where
police
involvement
is
a
regular
phenomenon many people would get
acquainted with the police. But as long as
they are not dependent on the police for
their living or liberty or for any other
matter, it cannot be said that those are
not independent persons. If the police in
order to carry out official duties, have
sought the help of any other person he
would
not
forfeit
his
independent
character by giving help to police action.
The requirement to have independent
witness to corroborate the evidence of the
police is to be viewed from a realistic
angle. Every citizen of India must be
presumed to be an independent person
until it is proved that he was a dependent
of the police or other officials for any
purpose whatsoever."

15. Referring to some of the the
aforesaid decisions, Court in Girja
Prasad Vs. State of M.P. (2007) 7 SCC
625 held:

"It is well-settled that credibility
of witness has to be tested on the
touchstone
of
truthfulness
and
trustworthiness. It is quite possible that in
a given case, a Court of Law may not
base conviction solely on the evidence of
Complainant or a Police Official but it is
not the law that police witnesses should
not be relied upon and their evidence
cannot
be
accepted
unless
it
is
corroborated in material particulars by
386 INDIAN LAW REPORTS ALLAHABAD SERIES
other
independent
evidence.
The
presumption that every person acts
honestly applies as much in favour of a
Police Official as any other person. No
infirmity attaches to the testimony of
Police Officials merely because they
belong to Police Force. There is no rule
of law which lays down that no conviction
can be recorded on the testimony of
Police Officials even if such evidence is
otherwise reliable and trustworthy. The
rule of prudence may require more
careful scrutiny of their evidence. But, if
the Court is convinced that what was
stated by a witness has a ring of truth,
conviction
can be
based
on
such
evidence." (para 25)

16. In the present case, it is not the
case of Revisionist that when sample was
taken, any independent witness was
present and that should have been
produced to corroborate the testimony of
Food Inspector that before taking sample,
milk was properly stirred. Moreover,
Food Inspector has given a categorical
statement on this aspect and since defence
has not cross-examined on this aspect, I
find no reason to disbelieve the otherwise
testimony of Food Inspector on this
aspect. Accordingly, even the second
contention,
noticed
above,
has
no
substance and is rejected.

17. Therefore, even the second
contention, I find has no force.

18.

Now
coming
to
third
submission, I find that despatch of Public
Analyst Report has been shown as a
proper compliance of Section 13 (2) of
Act, 1954 but there is nothing to show
that
the
said
report
was
actually
acknowledged or received or served upon
Revisionist. Complaint was lodged in the
Court on 16.08.1982 and notice was sent
under Section 13(2) to revisionist on
19.08.1982. The revisionist appeared in
the Court on 30.10.1982 and was released
on bail. The issue of compliance of
Section 13(2) has been decided by Courts
below only on the ground that Revisionist
did not apply for examination of food
material by Central Food Laboratory and,
therefore, cannot raise any grievance of
non-compliance of Section 13(2) of Act,
1954 but here I find that service of notice
upon accused was necessary to be proved
by Prosecution so as to prove compliance
of Section 13(2) of Act, 1954. This is
mandatory.
This
aspect
has
been
considered 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
3 All. Shamim Ahmad Vs. State of U.P. & Ors.
387
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)

19. Learned A.G.A., at this stage,
did not dispute that service of notice
under Section 13(2) is necessary but
pointed out that in the present case,
factum that notice was received by
Revisionist was not disputed at all for the
reason that issue raised before Lower
Appellate Court was that notice received
by Revisionist has wrong mention of
Court which shows that notice was
actually received by Revisionist and issue
raised before this Court is contrary to
what was contended in Courts below.

20. I find substance in what is said
by learned A.G.A. Judgment of Lower
Appellate Court, in para-9 shows that
while arguing that there was noncompliance of Section 13(2) of Act, 1954,
Accused-Revisionist argued that name of
Court was wrongly mentioned in the
notice. This argument was not found
correct by Lower Appellate Court as is
evident from following findings:

"9. It has next been argued by
the learned counsel for the appellant that
there has not been any compliance of
Rule 13(2) of the Act in as much as in the
information given to the appellant the
name of the Court has been written as
Munsif Magistrate Nagina whereas the
complaint was filed in the Court of Ist
Addl. Munsif Magistrate, Nagina. This
contention too is not acceptable as in the
present case, complaint was filed in the
Court of Ist Addl. Munsif Magistrate on
16.8.82. The information u/s 13(2) of the
Act was sent to the appellant on 19.8.82
by registered post which is Ext. Ka.-1. In
this information it has been mentioned
that the complaint had been filed against
him on 16.8.82 in the Court of Munsif
Magistrate,
Nagina
Distt.
Bijnor."
(emphasis added)

21. I have gone through the
judgment of Courts below carefully and
find that there was no complaint made
before Court below that notice under
Section 13(2) was not received by
Accused-Revisionist at all, and, therefore,
his right under Section 13(2) was
violated. In fact, Revisionist sought to
challenge the said notice on different
ground which has not been found of any
substance by Courts below.

22. 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 but
where accused at the stage of Revision
raise such plea that notice has not been
served upon him and there is noncompliance of Section 13(2), but no such
issue was raised in Courts below
particularly, Lower Appellate Court, this
Court would not allow accused to take
such factual plea when as a matter of fact,
the stand taken before Courts below
shows that service of notice was not
disputed, instead notice was challenged
on another ground. The mere fact that
mention of wrong Court was an issue
raised before Court below is sufficient to
prove the fact that notice was actually
served upon Revisionist. Hence, even
third submission has no force.

23. No other point has been argued.

24. The revision lacks merits.
Dismissed.
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,