# Umesh Revisionist v. State of U.P. Opp. Parties

- **Citation:** (2022) 11 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** Crl. Revision No. 175 of 2002
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-revisionist-v-state-of-u-p-opp-parties-47939
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision
-
The
Prevention
of
Food
Adulteration Act, 1955 - Section 7/16, The
Prevention of Food Adulteration Rule,
11 All. Umesh Vs. State of U.P.
967
1955 - Section 44-H (omitted by Central
Government)
-
sale
of
non-iodized
common salt, Rule 42(ZZZ)11 sold or use
under proper labeling with declaration,
Rule 44-I - restriction on sale of common
salt - No person shall sell or offer to
expose for sale or have in his premises for
the purpose of sale, the common salt, for
direct human consumption unless the
same is iodized - if "the law or precedent"
is beneficial to the accused then unless it
is prohibited, the benefit should be given
to the accused retrospectively. (Para -
8,10)

Unlabeled sample of salt taken - accused not
questioned under Section 313 Cr.P.C. - about
whether he was selling salt for human
consumption or any other purpose - accused
challaned of selling non-iodized salt - Food
Inspector tested salt - found it non-iodized -
found guilty - convict appealed - appellate court
ruled in favor of trial court - prosecution's
documents and evidence dependable - appeal
dismissed - instant revision - sale of non-iodized
salt was prohibited under Section 44-H - omitted
by Central Government.(Para -3)

HELD:- Revision is allowed due to two reasons:
Rule 44-I, which was based on conviction, was
declared ultra-vires the government's rulemaking powers, and the evidence was deficient,
as the sample was found to be a common salt
for direct human consumption.(Para - 10)

Revision allowed. (E-7)

List of Cases cited:-

Academy of Nutrition Improvement & ors. Vs
U.O.I. , Writ Petition (C) No. 80 of 2006

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
inadmissible as evidence against them at the
trial for the offence with which they were
charged, were admissible as evidence with
regard to the ownership of the property in an
enquiry held by the Criminal Procedure
Code. The same view was reiterated in Pohlu
v. Emperor [AIR 1943 Lah 312 : 45 PLR 391
: 209 IC 546] where it was pointed out that
though there is a bar in Section 25 of the
Evidence Act, or in Section 162 CrPC for
being made use of as evidence against the
accused, this statement could be made use of
in an enquiry under Section 517 CrPC when
determining the question of return of
property. These two decisions have been
followed by the Rajasthan High Court in
Dhanraj Baldeokishan v. State [AIR 1965 Raj
238 : (1965) 2 Cri LJ 805 : 1965 Raj LW
289] and the Mysore High Court in
Veerabhadrappa v. Govinda [ILR (1973) 23
Mys 64] . In the present case, the amount in
question was seized from the accused in
pursuance of statements made by them under
Section 27 of the Evidence Act. The High
Court as well as the courts below have found
the property to be the subject of theft and the
acquittal of the accused is upon benefit of
doubt. The accused persons disclaimed the
stolen property and there is no reason why
the same should not be returned to the owner
i.e. the complainant to whom it belongs.

4. We, therefore, allow the appeal, set
aside the impugned part of the order passed
by the High Court directing the forfeiture of
amount of Rs 20,000 (Rupees twenty
thousand) and instead direct that the same be
returned to the appellant to whom the money
belongs."

11. I have considered the submissions
of learned counsel for the revisionist and
learned A.G.A. for the State.

12. During the course of trial the
revisionist had denied that the silver was
recovered from the accused, who were
acquitted and any seizure memo was
prepared in his presence. However, it is not
the case of the prosecution that silver was
of the accused who were acquitted later on.
This is also not the case of the prosecution
that accused or anyone else has claimed the
ownership of the seized silver. The question
of ownership is not required to be
considered when the facts are not in dispute
that on the FIR being registered by the
revisionist/complainant, the silver was
recovered from the accused who had not
claimed ownership after acquittal.

13. In view of the aforesaid, this
Court is of the view that the view taken by
the two courts below is incorrect on facts
and law. Therefore, the present revision is
allowed. The impugned orders are hereby
quashed.
----------
(2022) 11 ILRA 966
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 175 of 2002

Umesh ...Revisionist
Versus
State of U.P. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashok Nath Tripathi, Sri Satendra Kumar
Gupta

Counsel for the Opp. Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision
-
The
Prevention
of
Food
Adulteration Act, 1955 - Section 7/16, The
Prevention of Food Adulteration Rule,
11 All. Umesh Vs. State of U.P.
967
1955 - Section 44-H (omitted by Central
Government)
-
sale
of
non-iodized
common salt, Rule 42(ZZZ)11 sold or use
under proper labeling with declaration,
Rule 44-I - restriction on sale of common
salt - No person shall sell or offer to
expose for sale or have in his premises for
the purpose of sale, the common salt, for
direct human consumption unless the
same is iodized - if "the law or precedent"
is beneficial to the accused then unless it
is prohibited, the benefit should be given
to the accused retrospectively. (Para -
8,10)

Unlabeled sample of salt taken - accused not
questioned under Section 313 Cr.P.C. - about
whether he was selling salt for human
consumption or any other purpose - accused
challaned of selling non-iodized salt - Food
Inspector tested salt - found it non-iodized -
found guilty - convict appealed - appellate court
ruled in favor of trial court - prosecution's
documents and evidence dependable - appeal
dismissed - instant revision - sale of non-iodized
salt was prohibited under Section 44-H - omitted
by Central Government.(Para -3)

HELD:- Revision is allowed due to two reasons:
Rule 44-I, which was based on conviction, was
declared ultra-vires the government's rulemaking powers, and the evidence was deficient,
as the sample was found to be a common salt
for direct human consumption.(Para - 10)

Revision allowed. (E-7)

List of Cases cited:-

Academy of Nutrition Improvement & ors. Vs
U.O.I. , Writ Petition (C) No. 80 of 2006

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Satendra Kumar Gupta,
learned counsel for the revisionist and
learned AGA for the State-respondents.

2. This criminal revision has been
filed with a prayer to allow the present
revision for setting aside and stay the
operation of the impugned judgments and
order dated 08.01.2002 and 01.05.2001
passed by Additional District and Sessions
Judge, Aligarh and 1st Additional Chief
Judicial Magistrate, Aligarh respectively,
respondent nos. 2 and 3.

3. Relevant facts giving rise to this
criminal revision are as below:-

(i) The revisionist faced the trial under
Section 7/16 of the Prevention of Food
Adulteration Act, 1955 in the Court of Ist
ACJM, Aligarh Case No. 863 of 1999 and
was convicted under Sections 7/16 of the
Food Adulteration Act and to undergo a
rigorous imprisonment of 6 months and
fine of Rs. 1,000/- in default whereof he
was ordered to undergo further rigorous
imprisonment of 3 months.

(ii) The facts of the case as appears
from the lower court record in brief are that
the accused was challaned on 10.04.1994
for selling non-iodized salt. The challan
came to be filed by the Food Inspector after
initially taking 500 gm of sample of edible
salt, testing the same and after adopting the
prescribed procedure filing a complaint,
finding same to be non-iodized. He was
declared guilty and sentenced as above.
The convict filed an appeal no. 44 of 2001
against the above judgment and order.

(iii) The appellate court heard both the
sides and found all the documents filed by the
prosecution in order and also the evidence
produced as dependable. He affirmed the
order of the trial court and dismissed the
appeal. Now, this revision has been filed
against both the orders, inter alia on the
grounds that the sale of non-iodized common
salt, though was prohibited under Section 44H of the Prevention of Food Adulteration
Rule, 1955, however, this provision was
omitted
by
Central
Government
by
968 INDIAN LAW REPORTS ALLAHABAD SERIES
GSR716(E) dated 13.09.2000; even prior to
the omission of Rule 44-H, the common salt
could be sold or exposed or stored for sale for
certain
purposes
like
iodization,
iron
fortification,
animal
use,
preservation,
manufacturing medicine and industrial use
under proper labeling with declaration as
specified under clause 11 of the sub-rule
(ZZZ) of Rule 42.

4. It is contended that the Food
Inspector nowhere stated in his statement that
he asked the revisionist that he wanted to
purchase the salt for human consumption. It
is also contended that salt, of which, the
sample was taken was not being sold in a
labelled
pack,
therefore,
the
entire
proceedings is illegal as no evidence has been
produced that the sample of common salt
tested for iodine was being exposed for sale
for human consumption only, therefore, he
cannot be convicted on the basis of
presumptions.

5. It is contended by the learned AGA
that requirement of labeling was not
mandatory for salt meant for human
consumption. It could be sold loose also.
Hence, argument of the revisionist is
misconceived.

6. In the light of the above contentions,
I went through the impugned orders and the
material brought on record. This fact is not
disputed that at the time of occurrence, the
law relating to the food adulteration
prescribed that any common salt exposed for
sale for human consumption must be iodized
in the manner as prescribed. The law required
that non-iodized salt cannot be sold for
human consumption, however, any uniodized
salt for animal use or for the purpose of
iodization iron fortification, manufacture of
medicine and for industrial use was permitted
by law to be sold.

7. (i) The paper on record show that
the sample of the salt taken was unlabeled.
The oral evidence produced from the side
of the prosecution did not reveal that the
sample was taken from those salt or the
packets of the salt which were exposed for
sale for human consumption only. The
witness is silent on the point.

(ii) It may be noted that the burden of
proof definitely lied on the prosecution side
to prove that the salt in question was being
sold for human consumption and not for
animal or industrial use or any other
purpose.

(iii) In the statement recorded under
Section 313 Cr.P.C., no question was asked
on this point. The accused was never asked
whether he was selling the salt for human
consumption or for any other purpose.

8. It may also be noticed that the
Apex Court in Academy of Nutrition
Improvement and Others Vs Union of India
in Writ Petition (C) No. 80 of 2006 decided
on 04.07.2011 declared that Rule 44-I of
the Prevention of Food Adulteration Rule,
1955 is beyond the rule making power of
the Central Government and ultra vires the
Act. The Rule 44-I prescribed restriction on
sale of common salt which is as under:-

"No person shall sell or offer to
expose for sale or have in his premises for
the purpose of sale, the common salt, for
direct human consumption unless the
same is iodized."

9. With the object of uniformally
applying the ban throughout the country,
the Central Government inserted Rule 44-H
in the Prevention of Food Adulteration Act,
1955 banning the sale of non-iodized
common salt for direct human consumption
thus
prescribing
uniform
application
11 All. XXX(Minor)S/o Pramod Singh(Juvenile) Vs. State of U.P. & Ors.
969
throughout the country. The Apex Court
held
the
Rule
44-I
as
invalid
on
04.07.2011. It may be noted that it is not
said by the Apex Court that the dictum
shall have only prospective application and
not retrospective.

10. In my view, if "the law or
precedent" is beneficial to the accused then
unless it is prohibited, the benefit should be
given to the accused retrospectively.
Hence, in my view, this revision deserves
to be allowed on two grounds. Firstly, the
Rule 44-I which was the basis of conviction
was declared ultra-vires the rule making
powers of the government. Secondly, the
evidence was deficient on the point that the
sample in fact belonged to that category of
common salt which was exposed for direct
human consumption.

11. The revision is allowed. The
judgment and order dated 08.01.2002
passed by Additional District and Sessions
Judge, Aligarh as well as judgment and
order dated 01.05.2001 passed by 1st
Additional
Chief
Judicial
Magistrate,
Aligarh, are hereby set aside.
----------
(2022) 11 ILRA 969
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 1069 of 2022

XXX(Minor)S/o Pramod Singh(Juvenile)
 ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Upendra Upadhyay
Counsel for the Opp. Parties:
G.A., Sri Shashi Kumar Mishra

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Section 94 -
Presumption and determination of age -
where several records from educational
institutions
as
envisaged
in
Section
94(2)(i) are available and they show
different dates of birth - Court shall have
to depend on the document which passed
the test of credibility and admissibility
both - comparison between the two (or
more) documents on the anvil of reliability
is inevitable. (Para -9)

Case involved two different birth dates - found
in school records of two different institutions -
primary school record showed a 12.02.2002
birth date - high school certificate showed a
15.03.2003 birth date - appellate court relied on
primary
school
record
-
assuming
no
discrepancies in recording of date of birth -
court found - date of birth from previous
institution
was

basis
for
admission
in
subsequent institutions - high school record was
not worth reliance - appellate Court declared
accused a major - Instant revision. (Para -
2,10)

HELD:- Appellate court correctly relied on the
student's primary school record's date of birth,
avoiding medical examinations when a reliable
school certificate was available. (Para -11)

Revision dismissed. (E-7)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Upendra Upadhyay,
learned counsel for the revisionist and Sri
O.P. Mishra, learned AGA for the State of
U.P. None responds for the respondent no.
2.

2. This criminal revision has been
filed under Section 102 of the Juvenile
Justice Act, 2015 challenging the order