IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 107 of 2006. Date of decision: 27.12.2011. Sh. Satinder Kalia S/o Sh. B.D. Kalia R/o M/s. Kalia Store, 10/5 Middle Bazar, Shimla (HP) ….. Petitioner. Vs. State of H.P.through Secretary ( Home to the Govt. of H.P. Shimla-171002 …. Respondent. Criminal revision under section 397 of the Cr.P.C. against the order dated 13.6.06 passed by ld. Sessions Judge, Shimla in criminal appeal No.27-S/10 of 05 on 13.6.06 whereby the ld. Appellate court was pleased to upheld the judgment sentence passed by ld. Judicial Magistrate (1) class in case 15/3 of 05 dt. 30.6.05 with the prayer to set aside and quash the same in exercise of revisional jurisdiction U/s.397 of Code or Criminal Procedure. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. D.P. Chauhan, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, J (Oral). This revision is directed against the judgment dated 13.6.2006 passed by learned Sessions Judge, Shimla in Criminal Appeal No.27-s/10 of 2005, affirming judgment dated 30.6.2005/1.7.2005 passed by learned Judicial Magistrate Ist Class, Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Court No.3, Shimla in Case No.15-3 of 2005, convicting the petitioner under Section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954 ( for short Act) and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1000/- , in default of payment of fine, to suffer further simple imprisonment for a period of one month. 2. The complaint was filed against the petitioner under Section 16 (1) (a) (ii) of the Act on the allegations that PW-1 L.D. Thakur ,Food Inspector inspected the premises of M/s. Kalia Store on 24.9.2004 at about 1 p.m. and found the petitioner conducting business of M/s. Kalia Store as proprietor. In the store, items for sale to general public such as spices, atta, biscuits, pulses, tea, sauce, vanaspati etc. were kept. PW-1 asked the petitioner to produce licence for sale of food articles under the Prevention of Food Adulteration Rules, 1955 (for short Rules) but petitioner failed to produce any licence. PW-1 took one sample of food article for purposes of analysis. PW-3 Kuldeep Verma and Charan Dass were present during the inspection of PW-1 of the premises of M/s. Kalia Store. The spot memo Ex.P-1 was prepared. The written consent Ex.P-3 was obtained and thereafter complaint was filed in the Court. 3. The petitioner was summoned; notice of accusation was put to petitioner under Section 16 (1) (a) (ii) of the Act read with Section 7(iii) of the Act and read with Rule 50. The petitioner did not plead guilty and claimed trial. The prosecution has examined three PWs. The statement of petitioner under Section 313 Cr.P.C. was recorded, he denied the prosecution case. The petitioner himself …3… appeared as DW-1 in defence. On conclusion of trial, learned Judicial Magistrate convicted and sentenced the petitioner, as noticed above. The appeal filed by the petitioner has been dismissed, hence revision. 4. I have heard the learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General for the State. It has been submitted by learned counsel for the petitioner that no case under the Act and the Rules is made out against the petitioner. No article of food was purchased by the Food Inspector from the petitioner. The allegation is that Food Inspector obtained one sample of food articles for the purposes of analysis. The petitioner is neither owner nor proprietor of M/s Kalia Store which is in the name of wife Smt. Suman Kalia. It has been submitted that vide Ex.D-1 dated 26.9.2002 the competent authority has authorized Smt. Suman Kalia to run fair price shop in the premises. The licence for selling food items in the fair price, if any, is required to be arranged by the authorities who permitted Smt. Suman Kalia to run fair price shop in the premises in question. It has been submitted that two Courts below have misconstrued and misinterpreted the Act and Rules. The learned counsel for the petitioner has relied The State of Madhya Pardesh vs. Madanlal and others 2000(2) FAC 82. The submission has been made for acceptance of revision and acquittal of the petitioner. 5 The learned Assistant Advocate General has supported the impugned judgment and has submitted that the two Courts below have rightly appreciated the material on record. The petitioner was …4… conducting the business in the premises in question when Food Inspector visited the store, he could not produce licence for selling the articles kept in the premises for sale. The two Courts below have recorded the findings on the basis of evidence. In revision the scope is limited and evidence cannot be re-appreciated. 6. PW-1 has filed the complaint against the petitioner Under Section 16 (1) (a) (ii) of the Act stating therein that on 24.9.2004 at about 1 p.m. when PW-1 visited the premises i.e. M/s Kalia Store, the petitioner was found conducting business in the premises of M/s Kalia Store as proprietor. He had kept food articles i.e. spices, atta, biscuits, pulses, tea, sauce, vanaspati etc. for sale to general public. The petitioner could not produce the licence under the Act when PW-1 asked the licence from the petitioner and thus petitioner has violated the Rule 50. 7. PW-1 L.D. Thakur in his statement has supported the complaint and has stated that when he visited the spot on 24.9.2004 at about 1 p.m. the petitioner was conducting the business in the shop in the capacity of owner of the shop. He had kept for sale for general public items such as spices, atta, biscuits, pulses, tea, sauce, vanaspati etc. He could not produce the licence under the Act for selling food items as provided under Rule 50. He had taken into possession one sample of Chilly powder of Siri Ganesh Brand in the presence of Kuldeep Verma and Charan Dass. He prepared spot memo Ex.P-1 which was read over to the petitioner and thereafter he put his signatures on the spot memo which is signed by him as well as by witnesses. He has proved written consent Ex.P-3 for …5… prosecuting the petitioner; thereafter he filed complaint. In cross- examination he has stated that no other person was present on the spot except the petitioner. He has been cross-examined that Smt. Suman Kalia is the proprietor of depot in the premises i.e. M/s. Kalia Store but, he has shown his ignorance. 8. PW-2 Naresh Kumar has stated that Ex.P-3 bears the signature of Chief Medical Officer Suman Gupta. PW-3 Kuldeep Verma has stated that no proceedings were conducted in his presence. He admitted his signature on spot memo Ex.P-1. He was declared hostile. In the cross-examination he has stated that on 24.9.2004 he was called in the shop of Satinder Kalia who is running a ration shop. The wife of the petitioner also runs the shop which in fact is Govt. Depot. He has stated that spot memo was read over to him. 9. The petitioner in his statement under Section 313 Cr.P.C.. has admitted that on 24.9.2004, PW-1 visited the premises of M/s. Kalia Store. He has admitted that he had kept spices, atta, biscuits, pulses, tea, sauce, vanaspati etc. for sale for general public. He has, however, denied that he could not produce the licence for selling the said articles in the shop. DW-1 Satinder Kalia has stated that M/s. Kalia Store is in the name of his wife Smt. Suman Kalia and to this effect he has placed on record office order dated 26.9.2002 Ex.D-1. In the cross-examination he has stated that in Ex.D-1 permission has been given for sale of essential items. Ex.P-1 is the spot memo which has been proved by PW-1 L.D. Thakur. PW-3 Kuldeep Verma has also admitted the signature on Ex.P-1. Ex.P-3 is …6… the written consent given by Chief Medical Officer, Shimla for prosecuting the petitioner. 10. The questions involved in the revision are whether petitioner was conducting the business in the shop when Food Inspector visited the shop and whether any licence under the Act is required for the items which were kept for sale in the shop. The learned counsel for the petitioner has made two folds submissions. He has submitted that the shop is owned by the wife of the petitioner and petitioner has nothing to do with the shop. It has also been submitted that licence if any, is required for selling the food items in the shop under the Act either by the wife of the petitioner or by the authorities who have authorized the wife of the petitioner to sell essential items in the shop. 11. Ex.D-1 is the office order vide which the wife of petitioner has been authorized to sell the essential items in Shop No.10/5, Middle Bazar, Shimla. There is no list of items alongwith the office order indicating the essential items which the wife of the petitioner has been authorized to sell in the shop. PW-1 has specifically stated that on 24.9.2004 when he visited the premises of M/s. Kalia Store the petitioner was himself conducting the business in the shop as owner. He prepared the spot memo Ex.P-1. It is not the case of the petitioner that Ex.P-1 was not prepared on the spot. In fact Ex.P-1 has been signed by petitioner as proprietor of M/s. Kalia Store, Shop No.10/5, Middle Bazar, Shimla. Not only this, in his statement under Section 313 Cr.P.C. the petitioner has stated that he had kept food articles i.e. spices, atta, biscuits, pulses, tea, sauce, vanaspati etc. …7… for sale to general public. He has also admitted that on 24.9.2004, PW-1 visited the shop in the name of M/s. Kalia Store. PW-3 who has been declared hostile has also admitted his signatures on spot memo Ex.P-1. Thus, it is clear that petitioner was conducting the business in the shop in his own capacity when PW-1 on 24.9.2004 visited the shop and demanded licence from the petitioner under the Act for selling various items by the petitioner. It is not the case of the petitioner that no licence at all is required under the Act or the Rules for selling spices, atta, pulses, tea, vanasapati etc. in the shop. The two Courts below on the basis of material on record have rightly recorded the finding that petitioner was running the business in the premises i.e. M/s. Kalia Store when PW-1 visited his shop and demanded licence from him under the Act and Rules for selling various items in the shop. 12. There is nothing on record what are the essential items for which office order Ex.D-1 has been issued. In fact there is no evidence whether Smt. Suman Kalia is actually running the business in whole of the shop or she is running business of fair price shop under office order Ex.D-1 in a part of the shop. The petitioner in his statement under Section 313 Cr.P.C. has made the facts absolutely clear when he has admitted that he had kept spices, atta, biscuits, pulses, tea, sauce, vanaspati etc for sale to general public. He has also admitted that he was present when Food Inspector visited the shop on 24.9.2004. The petitioner in his statement under Section 313 Cr.P.C. has nowhere stated that the shop is being run by his wife Smt. Suman Kalia. …8… 13. The State of Madhya Pardesh v. Madanlal and others, supra is not applicable in the facts and circumstances of the present case. In that case on facts it was established that the shop was in the name of Central Co-operative, Dongargarh and the respondents in that case were employees. The Court has held that licence under Rule 50 is required by the Central Co-operative, Dongargarh and not by the employees. In the present case the petitioner has not been proved to be an employee of his wife for conducting the business in the premises. On the contrary, it has been proved that petitioner in his own capacity was conducting the business when the Food Inspector visited the shop and demanded the licence from the petitioner. 14. The two Courts below have rightly appreciated both legal and factual aspects of the case. No perversity has been shown in the impugned judgment. The view taken by the two Courts below emerges from the evidence on record. The evidence has been examined in the revision to consider the legality and propriety of the impugned judgment. There is no merit in the revision which is accordingly dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender to serve out the sentence imposed upon him. December 27, 2011 ( Kuldip Singh ) (sks) Judge.