Des Raj v. State of Haryana

Mr.J.S.Virk, Advocate, for the petitioner. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: The sample of milk, taken from the bulk milk, in possession of the petitioner-accused (herein referred as 'the accused'), while sent for analysis, was found to be deficient as the Public Analyst report disclosed that the milk contained fat to the extent of 2.6% and the milk solids not fat 7%, thus, the milk was found adulterated as it was deficient to the extent of 35% in milk fat and 18% in milk solids not fat, thereupon, a complaint was filed. Consequently, vide judgment dated 14.01.2000, passed by the trial Court, he was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- under Section 16 (1) (a)(i) of the Prevention of Food Adulteration Act, 1954 (for brevity 'the Act'). His appeal also failed. The facts, necessary for disposal of the revision petition, are that on 31.08.1992, the accused was found in possession of 20 litres of milk. After serving notice Ex.PA, 750 ml of milk was purchased from him for a Criminal Revision No.2218 of 2003 2 sum of Rs.5/- vide receipt Ex.PE which was divided into three equal parts and after adding requisite drops of formulin, as preservative in each bottle, stoppered, packed and securely fastened, wrapped and sealed according to law. One of the bottles alongwith memorandum in form No.7 was sent to the Public Analyst, Haryana, Chandigarh, and the remaining two bottles with two copies of memorandum in form No.7 were deposited with the Local Health Authority. On receipt of the report of the Public Analyst dated

28.09.1992, the complaint was filed on 09.10.1992, however, the accused was informed to exercise his right under Section 13(2) of the Act. After recording the preliminary evidence, the accused was summoned. The complainant led pre-charge evidence, thereafter notice of accusation was served upon him to which he pleaded not guilty and opted to contest. The prosecution, in order to substantiate the charges, examined Harbhajan Singh, Government Food Inspector (PW1), Dr.T.R.Girdhar (PW2) and Radhey Shyam (PW3). When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, he examined Pawan Kumar (PW1). also failed. The trial ended in conviction. The appeal, preferred by him, Mr.J.S.Virk, Advocate, counsel for the accused, while agitating the issue with regard to stirring, has submitted that no sufficient evidence has been led by the prosecution in order to prove that the contents of milk were thoroughly mixed and made homogenous before pouring the same into Criminal Revision No.2218 of 2003 3 the vessel and thereafter into the bottles. Having pondered over the arguments, the same appears to be devoid of any merit. Perusal of the complaint Ex.PE as well as the statement of Harbhajan Singh (PW1) impel me to decide the point against the accused. The complaint Ex.PE reveals that Harbhajan Singh, Government Food Inspector (PW1) had purchased the milk for sample after mixing/stirring the whole contents properly and after making the same as homogenous. He has also reiterated the said allegations in his statement before the Court. Dr.T.R.Girdhar (PW2) has also corroborated this fact. There is nothing under the Prevention of Food Adulteration Act or the Rules which may indicate some particular and definite method for stirring or mixing the milk before making it homogenous. The principle is applied in the interest of natural justice and fair play so that the accused who may not have any chance to say that the upper layer of the milk could contain more fats and the lower layer could be deficient in such contents. As such, it is the subjective satisfaction of the Court that the milk was properly stirred before the sample was taken. The Apex Court in case Food Inspector Municipal Corporation, Baroda Versus Madan Lal Ram Lal Sharma and another 1982 (2) F.A.C. 372 observed as under:- “There is nothing in the Act or the rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogenous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom.” Thus, in view of the aforesaid judgment and also in view of the evidence, led by the prosecution, the argument raised by learned counsel for the petitioner cannot be accepted. Criminal Revision No.2218 of 2003 4 As regards the other contention that prosecution did not serve copy of the report of Public Analyst, Haryana, Chandigarh in accordance with the provisions of Section 13(2) of the Act, therefore, his right for analysis has been prejudiced The argument is fallacious. On appreciation of evidence, it transpires that after the report of Public Analyst Haryana, Chandigarh Ex.PD dated 08.09.1992 was received, the prosecution was lodged on 09.10.1992 and at the same time, a letter No.47 dated 16.10.1997 alongwith copy of the report of Public Analyst Haryana, Chandigarh dated

08.09.1992 was dispatched to accused which appears to be a due compliance of Section 13(2) of the Act. The letter Ex.PD and postal receipt Ex.PH, proved on record, reveal that it was properly addressed to the accused, thus, there is a presumption unless rebutted otherwise that the letter must have been received by the addressee in due course. Radhey Sham (PW3), Clerk, Local Health Authority, Kurukshetra, has supported this fact that the copy of the report of the Public Analyst Haryana, Chandigarh was sent to the accused through registered post but still the letter was not received back undelivered. When there is sufficient evidence with regard to dispatch of the letter then it would be presumed that the same was served upon him. As a matter of fact, the accused was not serious about his case as he did not receive the summons., therefore, his presence could be secured after issuance of proclamation under Section 82 and 83 of the Code of Criminal Procedure and he appeared for the first time in the Court on

05.06.1997 i.e. after five years of the launching of the prosecution, thus, he cannot take advantage of his own mistake and come after five years to contend that he was not provided opportunity for sending the sample for re- analysis. Criminal Revision No.2218 of 2003 5 There is no delay in launching the prosecution. The sample of the case was drawn on 31.08.1992 and the same was sent for analysis on the same day. The Public Analyst, Haryana, Chandigarh, prepared the report on

28.09.1992 and the prosecution was launched on 09.10.1992, as such there is nothing to show if there was any delay on the part of Food Inspector in launching the prosecution. The petitioner/accused has failed to point out any such illegality, impropriety much less irregularity in the conduct of the trial or defect in the procedure which may cause any prejudice to him. While examining the issue with regard to quantum of sentence, it may be observed that the trial Court sentenced the accused to undergo rigorous imprisonment for a period of one year whereas taking stock of the situation, the Appellate Court reduced it to six months. Thus, while keeping in view the enormous increase in the adulteration of the Food stuffs and other commodities for the daily use in day to day life, further reduction in the sentence would be sheer mockery of the administration of justice and is likely to send wrong signals to the society, as such in view of what has been discussed above, this petition, being devoid of any merit is dismissed.

22.09.2010 mamta-II (A.N.Jindal) Judge