# Suresh @ Dinesh Revisionist (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-14
- **Case number:** Criminal Revision No. 60 of 1995
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-dinesh-revisionist-in-jail-v-state-of-u-p-45117
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973-Section 401 r/w Section
397-Prevention
of
Food
Adulteration
Act,1954-Section 7/16-non-compliance of
Section 10(7) & 13(2)-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 3 to 20)

B. Where accused raises 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.Food inspector made it
clear that he had sent the report of Public
Analyst on the address of the accused by
registered post with the letter of Local
Health Authority. Since the registries did
not
return
therefore,
it
would
be
presumed that the same were served upon
the accused. (Para 13 to 16)

The revision is dismissed. (E-6)

List of cases cited: -

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
advanced by learned counsel for both sides,
it is very well established that learned trial
court has rightly appreciated facts and law
placed before it. Hence rightly concluded
with judgment of conviction for offence of
murder
against
both
of
appellants
Vishwanath and Ghanshyam Chaudhary.

37. Regarding quantum of punishment,
section
302
I.P.C.
provides
lowest
punishment of imprisonment of life with fine
and highest punishment is capital punishment
and it is mandate of law that while
administering to criminal law justice system
making
judicial
decision
regarding
imposition of sentence, court must impose
befitting sentence proportionate to degree and
gravity of offence, mode of its commission,
impact on society and public abhorrence.
Upon these points, judgment of sentence is of
minimum side sentence awarded. Hence, on
this score too, there is no merit in argument
of learned counsel for appellants.

38. Accordingly, this appeal merits its
dismissal. Dismissed as such.

39. Certified copy of this judgment
along with record be sent back to Court
concerned for follow up action.
----------
(2020)09ILR A966
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Revision No. 60 of 1995

Suresh @ Dinesh ...Revisionist (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Satish Trivedi, Sri P.S. Gupta, Sri Prem
Sagar Gupta, Sri Puneet Bhaduria, Sri R.K.
Srivastava

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

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973-Section 401 r/w Section
397-Prevention
of
Food
Adulteration
Act,1954-Section 7/16-non-compliance of
Section 10(7) & 13(2)-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 3 to 20)

B. Where accused raises 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.Food inspector made it
clear that he had sent the report of Public
Analyst on the address of the accused by
registered post with the letter of Local
Health Authority. Since the registries did
not
return
therefore,
it
would
be
presumed that the same were served upon
the accused. (Para 13 to 16)

The revision is dismissed. (E-6)

List of cases cited: -

1. St. of Raj. Vs Jagdish Prasad, (2009) Law Suit
SC 694

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Puneet Bhadauria,
learned counsel for revisionist and Sri G.P.
Singh, learned AGA for the State.

2. This revision has been preferred
against the judgment and order dated
16.12.1994 passed by 3rd Additional
District and Sessions Judge, Deoria in
Criminal Appeal No.4 of 1994 (Suresh and
9 All. Suresh @ Dinesh Vs. State of U.P.
967
others Vs. State of U.P.) whereby the
judgement and order dated 27.1.1994, has
been affirmed and the appeal has been
dismissed. By the said judgment and order
dated 27.1.1994, passed in Criminal Case
No.519 of 1993 (State of U.P. Vs. Suresh),
the Munsif Magistrate, Kasia Deoria has
held the accused-revisionist Suresh @
Dinesh guilty under Section 7/16 of the
Prevention of Food Adulteration Act, 1954
(hereinafter referred to as the Act "1954")
and has awarded one year of R.I. and a fine
of Rs.1,000/- and in default of payment of
fine one month further imprisonment and
the other accused-revisionist Ganesh @
Pyare
Lal
has
been
convicted
and
sentenced under the said Section with six
months R.I. and a fine of Rs.1,000/- and in
default of payment of fine one month
further imprisonment.

3. The facts in brief of the case are
that on 22.12.1982, at about 1 PM Suresh
@ Dinesh and Ganesh @ Pyare Lal was
found carrying mustered oil for sale in
Kasia within the jurisdiction of P.S. Kasia
who told P.W.1 that he does work of sale
while his father Ganesh @ Pyare Lal is
owner of the shop. P.W.1 purchased 375
grams mustered oil from him for the
purposes of sample and gave the seller,
notice form no.6 and obtained his signature
thereon after making him payment of Rs.6/-
for the said sample and also obtained
receipt thereof. The said mustered oil was
filled in three dry bottles in equal quantity
and after closing the same they were sealed
and labels were prepared which were
pasted thereon and one sample, on which
full description was written was read out to
the seller in presence of the witnesses.
After pasting the label on all the three
bottles signatures of the seller was obtained
thereon and on 4th copy also signatures
were obtained from the seller as well as
witnesses. All the three bottles of sample,
labels were pasted, whole description was
written and the signature of the seller was
also taken on the code. After taking all the
three bottles of samples, he (P.W.1) came
to the Head Quarter on 23.12.1982, and
after sealing one bottle of sample along
with a copy of one form-7 sent the same by
registered post vide receipt no.947 dated
23.12.1982 to Public Analyst, Lucknow for
the purposes of analysis and one copy of
the form no.7 was separately sent in a
sealed envelop vide receipt no.4055, dated
23.12.1982 to Public Analyst, Lucknow
through post office and two sample of
bottles after being sealed along with two
copies of form no.7 were deposited in the
Office of C.M.O. Deoria and one separate
copy of form no.7 was also deposited in
C.M.O. Office separately. Thereafter, he
came to know that seller Suresh had
disclosed his name as well as his father's
name wrong, therefore, he inquired correct
name of the seller as well as of owner after
pointing out about the same and he made
corrections in the letters in respect of name
and parentage and informed about it on
28.12.1982 to Public Analyst, Lucknow
and one copy of the same was also sent to
C.M.O. Deoria. The correct name of the
seller was Dinesh son of Pyare Lal Baniyan
resident of Village Sakhopar, P.S. Kasia,
District Deoria. The Public Analyst gave its
report no.28484 dated 8.2.1983 in respect
to the sample, finding it 100% oil of Alsi
instead of mustered oil. The said report was
received by him on 2.6.1983, under the
order of C.M.O. Deoria and the same was
deposited in the Office of C.M.O. Deoria
by him with application dated 10.5.1983
and after having perused those documents
permission was given to him for preparing
challani
report
against
the
accusedrevisionist which was prepared by him and
a written permission was granted by
968 INDIAN LAW REPORTS ALLAHABAD SERIES
C.M.O. for prosecution of the seller as well
as owner of the shop in accordance with
law for having committing offence under
Section 2(ia)(c) read with Section 7(i) of
the Act. The cognizance was taken by the
Trial Court and Sri B.N. Singh, Food
Inspector was examined as P.W.1 and
Ashok Kumar Gupta Food Clerk was
examined as P.W.2. P.W.1 has clearly
stated that accused had told the wrong
names of the owners of the shop, therefore,
he found out the correct name and had
written to the Public Analyst, Lucknow and
C.M.O. Deoria for correcting the names
and addresses of the accused, therefore, on
this ground no benefit can go the accused.
He has also stated that form no.7 which is
exhibit ka-8 which has not been filled fully
by C.M.O. Deoria. He has further stated
that he had asked the witnesses on the spot
to be witness, but they were not ready and
the Trial Court has held that this witness
has stated nothing such on the basis of
which his testimony in examination-inchief be disbelieved. Regarding P.W.1 it is
written in the judgement that he has stated
that he had gone to send information to the
seller Suresh @ Dinesh son of Ganesh @
Pyare Lal Baniyan, Village-Sakhopur,
District Deoria vide dispatch register
no.79(1) dated 18.5.1984 and to the owner
Sri Ganesh @ Pyare Lal son of Lal Jee @
Ram Lal Baniya, Village Sakhopur, District
Deoria about initiation of the case against
them vide dispatch no.18(2). He has further
stated that the public analyst report no.
28484 dated 8.2.1983 were also sent to
them vide letter no.29/84-78(1), 80(2)
dated 17.5.1984/18.5.1984 vide postal
office receipt nos. 4573 and 4570 dated
18.5.1984 which are exhibits ka-12, 13 and
14 respectively. Therefore the Trial Court
has held that this witness had sent report of
the public analyst to both the accused and
whatever
has
been
asked
in
crossexamination from him no benefit would go
to the accused thereon. He has also
recorded in the judgment that all the
necessary steps which were required to be
taken at the time of taking samples were
complied with and though, the accused
have stated that entire evidence against
them is false but no evidence has been
adduced in their defence.

4. It is further recorded by the Trial
Court that the Food Inspector has stated in
his statement under Section 244 Cr.P.C.
that
the
accused
was
challaned
on
12.12.1982,
while
actually
he
was
challaned on 22.12.1982 but no benefit of
the same would go to the accused because
on the basis of documentary evidence the
samples were taken from the accused on
22.12.1982 which date is mentioned in the
documents.

5. It is opined by the Trial Court that
merely
because
an
error
has
been
committed in giving the date, will not
amount to holding the whole prosecution
story to be false. It is also mentioned in the
judgment that it was argued before him that
sample was taken on 22.12.1982 and Form
no.7 was prepared on 23.12.1982 but the
prosecution story cannot be held to be
wrong only because Form-7 was prepared
on 23.12.1982 because in the Act, 1954, it
is provided that on the day on which
sample will be taken the Form-7 shall be
prepared either the same day or on the next
date. Therefore, it does not appear that
Food Inspector committed any error in
preparing the Form-7.

6. It was also argued before the Trial
Court that C.M.O. Deoria did not apply his
mind while granting the sanction to
prosecute, in this regard it is recorded that
perusal of the sanction order makes it clear
9 All. Suresh @ Dinesh Vs. State of U.P.
969
that the C.M.O. had made compliance of all
necessary provisions and a perusal of Ex.
Ka-11 (sanction order) would make it clear
that CMO had given sanction in accordance
with law merely because the sanction was
typed written would not mean that C.M.O.
Deoria did not grant sanction after applying
his mind.

7. Further it was argued before the
Trial Court that Rule 17 and 18 of the
Prevention of Food Adulteration Act, 1955
were not followed which provides that the
seal used should be sent to the Public
Analyst, Lucknow separately so that the
seal used in the process could be compared.
It is mentioned about it that from the
perusal of file it is clear that Form-7 was
presented
before
public
analyst
on
23.12.1982 which is exhibit ka-4 and both
the parts of the same were sent to the
C.M.O. Deoria, thus Rule 17 was fully
complied with and Rule 18 is its
supplementary which provides that the seal
used on Form-7 should be separately sent
and also provides that on whatever day the
sample is taken, on the very next day, this
compliance should be made. The Food
Inspector in his statement has stated that he
had sent the seal after closing the same on
23.12.1982 to Public Analyst, Lucknow
and rest of the copies were sent to the
C.M.O. Deoria and thus Rule 18 fully
stands complied with.

8. Further the Trial Court has
recorded that after perusal of the statement
of accused under Section 313 Cr.P.C. he
reaches the conclusion that the Food
Inspector had complied with all the
necessary requirements and had purchased
375 grams of mustered oil regarding which
the accused was sent notice forthwith and
its price Rs.6/- was paid to him as per the
prescribed procedure and on 23.12.1982,
the sample was sent to Public Analyst
Lucknow with one copy of Form-7 and
thereafter, the remaining samples were
deposited in the Office of C.M.O. Deoria.
The Food Inspector in his statement under
Section 244 Cr.P.C. has stated that notice
given to the accused (Ex. Ka-2) label
Form-3 and notice exhibit ka-4 were
subsequently, amended as initially accused
had disclosed their names wrong and the
letters were sent regarding this amendment
to Public. Analyst, Lucknow as well as
Chief Medical Officer, Deoria by letter
Exhibit Ka-6. After receipt of report from
public analyst, the sanction for prosecuting
the accused was obtained from the C.M.O.
Deoria and after having completed all the
local formalities the charge levelled against
the accused are found proved.

9. The Appellate Court has held that
the sample of mustered oil is stated to have
been taken from the foot path where
accused Dinesh was selling mustered oil,
the total quantity of which was 14 Kg and
after the analysis of the sample, it was
found to be 100% of Alsi oil and, therefore,
the argument was made before the
Appellate Court that the accused are
resident of Village-Sakhopar where they
have their shops and in such condition the
Food Inspector of Sakhopar had no
authority to go to Sakhopar and collect the
sample because the Food Inspector was of
Kasia area. The Food Inspector Sri B.N.
Singh has admitted that he did not have
Sakhopar in his jurisdiction but this
objection has been over-ruled by the
Appellate Court mentioning that he had
found the accused Dinesh selling mustered
oil in his area and the accused had stated to
him that his father was the owner of the
shop and it was not necessary that the seller
must have some shop only. 14 Kg oil was
found being sold at foot-path and, therefore
970 INDIAN LAW REPORTS ALLAHABAD SERIES
Food Inspector did not commit any mistake
in taking sample. Accused could not prove
that they had shop in Sakhopar at which
place. In village areas it is often found that
the sellers sometimes sell their items in
market at other place instead of at their
original place. Moreover, it is held that no
enmity has been proved by the accused
with the said Food Inspector and, therefore,
why the Food Inspector would falsely
implicate him.

10. It was argued before Appellate
Court that compliance of Section 10(7) of
the Act was not made because public
witnesses were not taken. In this regard it
was held by the Appellate Court that people
of public at the said place were asked to be
a witness but they were not prepared to be
witnesses hence, the compliance of said
section shall be taken to have been made.
As regards 12.12.1982, being written as the
date on which sample was taken while in
papers 22.12.1982 is reported as the date
when the sample was taken, it is held in
this regard that the entire documents with
respect to taking sample on 22.12.1982 is
endorsed and only in the statement the
Food Inspector said date is wrongly
mentioned as 12.12.1982 which appears to
be a mistake on the part of reader and
appears to be a bonafide mistake and
moreover no cross-examination has been
done from the Food Inspector on the
person, hence, no benefit would go to the
accused.

11. It was also raised before the
Appellate Court that the Local Health
Authority did not apply his mind in
granting sanction because the same has
been granted on printed form and hence,
application of mind does not appear to have
been made. It has been repelled by the
Appellate Court by saying that because the
said authority has seen all the documents
which find reference in Exhibit ka-9,
hence, it would be treated that the
application of mind was made while
granting the sanction of prosecution.

12. It was also argued before the
Appellate
Court
that
proceeding
for
collecting the sample was made on
22.12.1982 while Form-7 was prepared on
23.12.1982 hence, compliance of Rule 17
and 18 of the Rules, 1955 was not made but
it is held that no such question was asked in
cross-examination from the said witness
and from the papers it was evident that
after taking the sample, next day of the
same, the entire proceedings for sending
the sample was completed and it is evident
from the evidence of Public Analyst that a
separate copy of Form-7 along with bottle
of samples were sent to the Public Analyst,
Lucknow and about this fact mention is
also made by Public Analyst in his report.
As regards the other bottles of sample
being deposited in the Office of Local
Health
Authority
is
concerned,
the
argument of the counsel for defence was
that the same was deposited on 26.12.1982
while the same ought to have been
deposited on the very next date of taking
the sample but in this regard the Appellate
Court has held that no such question was
asked from the said Food Inspector so that
he could give his explanation regarding the
same.

13. Next argument placed from the
side of accused was that the provision of
Section 13(2) was not complied with but it
was found to be not sustainable by the
Appellate Court because Food Inspector
Ashok Kumar Gupta had made it clear that
he had sent the report of the Public Analyst
on the address of the accused by registered
post along with the letter of Local Health
9 All. Suresh @ Dinesh Vs. State of U.P.
971
Authority and the receipt of the said letter
is Exhibit ka-12 and the postal receipts are
Exhibits ka-13 and 14. Since the registries
did not return therefore, it would be
presumed that the same were served upon
the accused. In exhibit ka-12 name of the
Munsif Magistrate, Kasia is mentioned
regarding which it was stated that there
were many Courts of Judicial Magistrate in
Kasia but that was not taken to be correct
argument because in Kasia on the post of
Munsif Magistrate there was only one
Officer working. Therefore, the argument
that accused could not have come to know
that he could have given an application
before Court for getting his second sample
sent for being tested does not hold water.

14. From the perusal of the judgement of
the Trial Court and Appellate Court, the facts
which have emerged are that the co-accused
Ganesh @ Pyare Lal has died, hence, his
Revision has been abated vide Courts order
dated 25.4.2019. As regards the other accused
namely Suresh @ Dinesh, it is apparent that he
was found selling the mustered oil by P.W.1
Food Inspector, sample of which was taken in
accordance with the provisions of the Act
which was found to be 100% oil of Alsi and
hence the Trial Court as well as Appellate Court
have held him guilty under Section 7/16 of Act,
1954.

15. Only the two points have been
raised by the learned counsel for the
revisionist; (1) the accused-revisionist was
selling oil of Alsi and not mustered oil,
hence he has not committed any offence;
(2) No public witness has been taken of
proving recovery of such adulterated oil. It
is further argued that accused has no
criminal history.

16. I do not find that there was no
jurisdiction
of
the
concerned
Food
Inspector
and
that
there
was
nonapplication of mind in granting prosecution
sanction. The compliance of Section 13(2)
of the Act and compliance of Rules 17 and
18 of the Rules of 1955, all have been dealt
with by the Trial Court as well as Appellate
Court adequately and looking to the fact
that two Lower Courts have been given a
concurrent finding and nothing much has
been argued before this court on merits by
the learned counsel for the revisionistaccused, I do not find any reason to
interfere in the concurrent findings of the
Courts below and hence, the conviction of
accused-revisionist is upheld. The accusedrevisionist is on bail his bail bonds stands
discharged.

17. The only consideration for me
remains that the incident is stated to be of
the year 1982 when the accused Dinesh @
Suresh was just 22 years old and now 36
years have gone by since then and he
would
have
become
58
years
old
approximately by now, therefore, at this far
point of time it would be extremely painful
for him to go to jail. Therefore, I would like
to reduce the sentence of the accused from
one year to six months although no
interference is required in the fine imposed
and in the default clause and it is done
accordingly.

18. Reliance has been placed by
learned counsel for the revisionist in the
Case of State of Rajasthan Vs. Jagdish
Prasad, 2009 Law Suit (SC) 694, in which
it has been held that the Trial Court had
awarded six months imprisonment to the
accused under Section 6/17 of the Act,
1954 and the High Court had upheld the
conviction but imposed the fine of
Rs.6,000/- and directed commutation of
sentence of six months R.I. When the
matter came up before the Hon'ble Apex
972 INDIAN LAW REPORTS ALLAHABAD SERIES
Court it was held that strict adherence to
the provision of Prevention of Food
Adulteration Act and Rules framed thereunder is essential for safe-guarding the
interest of consumers of articles of food.
Stringent laws will have no meaning if
offenders could get away with mere fine
and therefore, order of sentence by the
Trial Court was upheld. Further for a
period of three months accused was given
liberty to move appropriate Government for
commutation of sentence and accordingly,
the impugned order of High Court was set
aside.

19. It was argued by learned counsel
for
the
accused-revisionist
that
the
revisionist-accused has now turned 58
years old approximately by now and,
therefore, it would be very painful for him
to go to jail and serve out the remaining
sentence at this far distant point of time,
therefore, in view of the judgment of Apex
Court in the case of State of Rajasthan Vs.
Jagdish Prasad, 2009 Law Suit (SC) 694,
this Court deems it proper to grant him
three months time from today to approach
appropriate
Government
annexing
a
certified copy of this order to seek
remission under Section 433(d) Cr.P.C., if
so advised.

20. If the revisionist files any such
application for grant of remission by the
Government before the Trial Court with its
receipt then the Trial Court shall await the
outcome of the said application which shall
be informed by the revisionist to the Trial
Court also immediately. If he is granted
remission by the Government, the Trial
Court shall abide by it, failing which the
accused-revisionist shall be taken into
custody after expiry of the period of 3
months from today, to serve out the
remaining sentence.

21. Office is directed to send a copy
of this order to the Trial Court immediately
for compliance
----------
(2020)09ILR A972
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2020

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Criminal Revision No. 182 of 2020

Sanjay Chaudhary (minor) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Bipin Kumar Tripathi

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

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 401 r/w Section
397 & Indian Penal Code,1860-Sections
363,366, 376,342 & Protection of Children
from Sexual Offence Act, 2012-Section 3⁄4
& Juvenile Justice (Care and Protection of
Children)
Act,
2015-Section
102application -rejection of bail- issue of
granting bail regarding revisionist has
been wrongly decided by the trial court
and application has been rejected even
after giving specific finding in favour of
accused/revisionist by district probation
officer-trial
court
has
unnecessarily
entered into hypertechnical things while
rejecting the application for bail which is
contrary to procedure provided under the
Act-the report of the District Probation
Officer is in favour of revisionist and the
family members of the revisionist had no
criminal
history-on
enquiry
from
neighbours
it
transpired
that
the
revisionist had no criminal proclivityhence, the revisionist should be enlarged
on
bail.(Para
1
to
15)