HARI OM Vs. STATE OF U.P.

JUDGEMENT

(1.) The revisionist Hari Om is a Parchoon shop keeper of Jarao Khand, a small village in the district of Pauri Garhwal. On 24-5-1975 at about 6 P.M. the Food Inspector took sample of about 3 or 4 Kgs. of sooji alleged to have been displayed at his shop for sale. The Public analyst vide its report dated 3-6-1975 found gluten content of sooji 5.4 per cent in place of the prescribed standard of 6.0 per cent and the total ash content to be 1.7 per cent in place of the prescribed 1 per cent. After obtaining sanction of the Chief Medical Officer on 26-8-1975, the applicant was prosecuted. His defence was that sample was indeed taken but the sooji was not for sale. It was kept aside for his personal use. The prosecution examined the Food Inspector and the revisionist examined himself. The Magistrate convicted the revisionist and sentenced him to six months' rigorous imprisonment and a fine of Rs. 1,000.00, in default of payment thereof further rigorous imprisonment for three months. In appeal, the Sessions Judge took the view that the documents, namely, the notice in form No. 6, the receipt for payment of price and the sanction had not been proved according to law and although there was no objection on behalf of the accused but when these documents were exhibited, it was the duty of the Magistrate to sec that they were proved according to law. This not having been done, he held that these documents could not be taken into account and, therefore, the conviction was not sustainable. He proceeded to remand the case for fresh disposal according to law in the light of his observations. Against this order, the accused has come up in revision.

(2.) It may straight away be stated that if there were any lacuna of the kind found by the Session Judge, the proper course was to allow the appeal and acquit the accused, and not to remand the case for retrial and filling up of the lacuna of proof. I have, however, perused the material on record and I am of the opinion that the Sessions Judge's view about proof of the document is erroneous. The Food Inspector did state that notice Ex. Ka-1 in form 6 was given to the accused. The accused himself admitted in the cross-examination as D.W.l that it bears his signatures. The Food Inspector also stated that the receipt issued by Hari Om for the price was Exhibit Ka-2. Lastly he gave out that he prepared Chalani report Ex. Ka-4 and forwarded the same to the Chief Medical Officer for sanction. Ex. Ka.5 was the sanction. Ex. Ka-5 refers to the papers including the Chalani report, Analyst's report, the notice in form 6 and the receipt. None of these papers was challenged during the cross-examination or even in arguments before the trial court. The accused himself admitted the taking of the sample. In my opinion, in these circumstances, all the documents in question have been fully and legally proved. I cannot also agree that the sanction on a printed form with certain gaps filled in by particulars of the case is vitiated merely because the signatures of the sanctioning authorities are in different hand from that in which the rest of the form is filled in, even if it is taken to be so. There is no defect in the sanction showing non-application of mind on which alone an argument against the validity can be based. Therefore, this ground for setting aside the trial court's decision cannot be upheld.

(3.) The lower appellate court did not consider the appeal on merits nor has it noted in the judgment that no other point was pressed. In these circumstances, the ordinary course would be to set aside the order of remand and send the case back to the lower appellate court for decision of the appeal on merits. As the revisionist appears to have come from a very backward area of the State and the Food Inspector has not stated that there was any other sooji in the shop and also as the offence is of May, 1975 when the present rigorous minimum punishment provisions were not in force, I think the best course would be to finalise the case at this very stage.