1. The present revision is directed against the judgement and order dated 16.3.2007 passed by the Additional Sessions Judge/Special Judge, (Essential Commodities Act), Hardoi in Criminal Appeal No.6 of 2005, which was preferred against the judgment and order dated 25.1.2005 passed by the Additional Chief Judicial Magistrate, Court no.1, Hardoi in Case No.1639 of 2004, whereby the revisionist was convicted and sentenced under Section 16(1)(a)(1) of the Prevention of Food Adulteration Act (for short 'the Act') for one year rigorous imprisonment with a fine of Rs.2,000/- and for non-payment, six months additional sentence. The appellate court had affirmed the judgement and order passed by the trial court and dismissed the appeal.
2. The facts of the case are that on 12.7.2000 at around 12.25 P.M. the complainant inspected the shop of Anil Kumar Gupta and Vimal Kumar Gupta situated at old food grain market, Shahbad, District Hardoi and he found the revisionist selling the mustard oil from the aforesaid shop. Suspecting the adulteration in the food item, he purchased 375 Gms of the mustard oil for Rs.13.50/- from the revisionist and prepared Form-6 as provided under the Act and took signature of the revisionist. Three samples were prepared and sent it for public analyst. The public analyst in his report dated 21.8.2000 found Argemone present in the sample. After obtaining permission from the Chief Medical Officer, Hardoi, a complaint was filed against the present revisionist , Anil Kumar Gupta and Vimal Kumar Gupta.
3. To prove the prosecution case, P.W.-1 Food Inspector, Vijay Bux Singh, P.W.-2 Shishu Kumar Awasthi and P.W.-3 Jagdish Prasad were examined.
4. The accused denied the charges and said that there was enmity with Shishu Kumar Awasthi, who is neighbour and he in conspiracy with the Food Inspector, had got the false case registered against him. He also said that no sample was taken from him and neither he put his signature as he was illiterate and he used to put thumb impression.
5. P.W.-1 Food Inspector, Vijay Bux Singh in his statement before the Court proved the documents for taking samples from the revisionist and filing the complaint. He said that the revisionist told him that Anil Kumar Gupta and Vimal Kumar Gupta were the owners of the shop in question and the Board was also put in their name outside the shop. He did not examine the papers regarding ownership of the shop. Later on, he went to find out whether the shop belongs to Anil Kumar Gupta and Vimal Kumar Gupta, but nobody gave any evidence. He also said that no public witness came forward to give evidence during the course of inspection and taking the samples etc.
6. P.W.-2 Shishu Kumar Awasthi, who was present throughout the inspection and sealing of the samples etc, had supported the complaint. However, he did not say anything as to how many samples were prepared on the date of incident. It is said that sample was collected from the revisionist. He also said that the revisionist showed the papers regarding the ownership of the shop. At the time of inspection and taking sample, 1 or 2 persons were present in the shop, but he was not sure whether they were workers or not.
7. P.W.-3 Jagdish Prasad proved the notice given under Section 13(2) of the Act. The accused has denied the receipt of the notice under Section 13(2) of the Act.
8. Learned trial court after analysing the evidence and submissions, held that all formalities from the time of taking sample of the mustard oil till filing of the complaint have been completed in accordance with the provisions and in the report of the public analyst, presence of Argemone was found in the mustard oil sample, which was sent for examination. The trial court acquitted Anil Kumar Gupta and Vimal Kumar Gupta, but convicted the revisionist and sentenced him as mentioned above.
9. The appellate court had held that P.W.-1 Food Inspector, Vijay Bux Singh had taken sample from the shop of the revisionist in accordance with rules. The revisionist was found at the shop and he was selling the food item in question from the shop. He had signed the papers prepared after taking samples from the shop. The public analyst after examining the sample of food item in question, found Argemone present in the mustard oil. Notice along with the report of the public analyst was sent to the revisionist under Section 13(2) of the Act.
10. In view of the aforesaid, the appellate court recorded a finding that the revisionist was guilty of violating Section 7(1)(5) of the Act and is punishable under Section 16(1)(a)(1) of the Act. In view of the aforesaid, the appellate court had dismissed the appeal and affirmed the judgement and order passed by the trial court.
11. Heard Sri Anil K. Tripathi, learned counsel representing the revisionist and Sri Ashwani Kumar Singh, learned AGA representing the State.
12. Learned counsel for the revisionist submits that when the trial court had acquitted the owners of the shop, the revisionist could not have been held guilty. He was merely present at the shop, but he was not selling the mustard oil as alleged otherwise. There was no customer to whom the mustard oil was sold by him. Mere presence of the revisionist at the shop would not be enough to say that he was selling the mustard oil in question and, therefore, the judgements and orders passed by the trial court and the appellate court are liable to be set aside.
13. On the other hand, Sri Ashwani Kumar Singh, learned AGA submits that the revisionist was found selling the mustard oil in question. He signed the receipt of payment for mustard oil taken for sample. The samples were prepared in his presence and all formalities as required, were completed in his presence. Therefore, the trial court and the appellate court have rightly convicted the revisionist for the offence as mentioned above.
14. I have considered the submissions of the rival parties carefully.
15. P.W.-1 Food Inspector, Vijay Bux Singh in his statement has said that the shop belongs to Anil Kumar Gupta and Vimal Kumar Gupta. There was board of their names put outside the shop. He is not stated in his evidence that the revisionist was selling the mustard oil in question to some customer. Mere presence of the revisionist at the shop, inference cannot be drawn that he was selling the mustard oil in question particularly when there is no evidence to suggest that whether he was employed at the shop. Since the trial court and the appellate court have acquitted the owners of the shop, conviction of the revisionist does not appear to be proper.
16. In the result, the revision is allowed and the judgment and order 16.3.2007 passed by the Additional Sessions Judge/Special Judge, (Essential Commodities Act), Hardoi in Criminal Appeal No.6 of 2005 and the judgment and order dated 25.1.2005 passed by the Additional Chief Judicial Magistrate, Court no.1, Hardoi in Case No.1639 of 2004 are hereby set aside.
( Dinesh Kumar Singh, J.) Order Date :- 30.4.2019 Rao/-