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MARGHOOB & ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Marghoob & Another v. State Of U.P. - CRIMINAL REVISION No. - 2247 of 2007 [2007] RD-AH 17287 (1 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.52

Criminal Revision No. 2247 of 2007

Marghoob & another Vs. State of U.P. &others

..........

Hon'ble Shiv Charan J.

Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the impugned order dated 17.7.2007 passed by Addl. Sessions Judge/FTC-3 Saharanpur in S.T. No. 194 of 2007( State Vs. Marghoob and another) u/s 272 and 273 IPC and 7/16 PFA Act. By the impugned order learned Sessions Judge framed the charge against the revisionists for the above offences.

The perusal of the facts shows that on 3.11.2005 police on getting information from the informer that the accused at their house preparing the artificial Khoya(Milk product). On this information police reached at the spot and found the accused persons manufacturing artificial Khoya by certain articles . Fard recovery was prepared on the spot. On 8.11.2005 Food Inspector was called in order to draw the sample of the alleged food product and the FIR was also lodged u/s 272,273 IPC and u/s 7/16 PFA Act. The sample was also sent to public analyst and the report was received. The sample was found adulterated. The charge sheet was submitted against the revisionists and other persons and on perusal of entire material, the learned Sessions Judge framed charge against the revisionists and others.

It has been argued by learned counsel for the revisionist that in order to make out a case u/s 272 IPC the articles of food or drink must be noxious. There is no report of any expert to the effect that the recovered food articles was noxious and in the absence of any report of expert the offence u/s 272 and 273 is not made out. He also argued that the mandatory provision of Section 7/16 PF Act was not followed in drawing the sample of the food articles. It has been provided by Section 11 sub section (1)(b) of PFA Act that the sample must be drawn then and there and if this mandatory provision is not followed the no case can proceed against the revisionist and perusal of the documents shows that a raid was conducted on 3.11.2005 whereas the sample was drawn on 8.11.2005 after five days. That this is not the compliance of mandatory provision of the PFA Act. He also argued that the Food Inspector was called and he refused to draw the sample of the food articles on the pretext that the accused is not present before him. Then the sample was drawn by the police personnel and the same was sent to public analyst for examination. He also argued that when there is mandatory provision in a special law then the general law will not prevail and in the present case there is mandatory provision of PFA Act. That the learned Sessions Judge failed to consider this lapses while preparing charge of the offences.

Learned AGA opposed the argument of learned counsel for the revisionist and argued that all these points which have been high lighted by the revisionist are relevant and material at the time of the final disposal of the case. These points shall be considered by the court at the appropriate stage. For framing of charge only it is to be seen whether the conviction can be passed on the basis of uncontroverted evidence of the prosecution. In the present case there is sufficient evidence that the revisionists was manufacturing artificial Khoya by certain other items and this fact is sufficient for the offence u/s 272 and 273 IPC for the purpose of framing of charge and the illegality can be considered at the appropriate stage.

I have considered the facts and circumstances of the case and submissions made by learned counsel for the revisionists and learned AGA for the State. This is the settled law for framing the charge that only uncontroverted evidence of the prosecution is to be considered. The court is not expected to pass the orders after scrutinize the evidence meticulously at the time of framing of charge. What ever evidence was collected by the IO was considered by the trial court and on the basis of the evidence the trial court arrived at the conclusion that there is sufficient material against the accused persons for framing charge and charge may be framed accordingly. I agree with the argument of the revisionists counsel that for the charge u/s 272 and 273 IPC food articles must be noxious. In order to prove that whether the food articles were noxious or not what is the evidence to be considered by the trial court at the time of framing charge. In my opinion only prima facie case is to be seen. The police personnel was conducted the raid at the premises of the accused persons found them manufacturing artificial Khoya. One is not expected to manufacture Khoya by these substance which were found at the time of raid. Whether these substances were kept for the domestic purpose will also to be seen by the court . It is the defence case of the accused persons whereas the prosecution case is that the accused persons were manufacturing artificial Khoya. If one is found manufacturing artificial Milk product then , I failed to understand that under which provision of law the persons will be held responsible. Because the milk is to be yielded by cow and buffalo, and the same can not be manufactured by artificial substances. This is covered u/s 272 and 273 IPC and seen by the trial court for framing charge and it is sufficient. Although there are certain violation of the mandatory provision of PFA Act in drawing the sample. But whether this violation goes at the root of the case will be considered by the trial court at the time of the final disposal of the case but it cannot be said that at this stage considering the facts this makes the entire prosecution illegal.

For reasons mentioned above, I think that it will not be justified to interfere in the order of learned sessions Judge. There is no merit in the revision and the same is liable to be dismissed summarily.

The revision is dismissed summarily.

Dt.1.11.2007

Hsc/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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