Karambir v. State of Haryana

CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Rajinder Goyal, Advocate, for the petitioner. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: This petition is directed against the judgment dated 20.01.2005, passed by the Addl. Sessions Judge, Kaithal, dismissing the appeal against the judgment dated 20/21.11.2000, passed by the Chief Judicial Magistrate, Kaithal, convicting and sentencing the petitioner-accused (herein referred as 'the accused') to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- under Section 7 read with Section 16 (1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for brevity 'the Act'). However, in appeal, the sentence was reduced to six months. On 26.04.1994, Government Food Inspector Natha Singh intercepted the accused and found him in possession of 50 litres of cow's milk, contained in two drums, for public sale.

After issuing a notice Ex.PA to him, he stirred the milk and then purchased 750 mls of milk for Rs.4/- vide receipt Ex.PG. The said milk was divided into three portions and then it was poured into three dry and clean bottles with equal quantity. Criminal Revision No.318 of 2005 2 Thereafter, 20 drops of formalin were put in each bottle as preservative. Thereafter, all the bottles were stoppered, labelled and wrapped in a strong thick paper slip issued by the Local Health Authority (LHA), Kaithal, bearing Code No.KAT-DH/M/2 Sr.No.250 and signatures of L.H.A. were affixed on each bottle from top to bottom with the gum which was secured by means of strong twine and sealed with the seal of Food Inspector and of Medical Officer. One of the samples alongiwth form No.VII was sent to Public Analyst in a sealed packet for analysis. On receipt of the report of the sample Ex.PD, complaint Ex.PE was filed.

After recording the preliminary evidence, the accused was summoned. Thereafter, on his request, the sample was again sent to the Central Food Laboratory for analysis but the same was again found to be not conforming to the standards as laid down for cow's milk. The complainant, in order to substantiate the charges, examined Natha Singh, Food Inspector (PW1), Dr.J.S.Chauhan, retired Government Food Inspector (PW2), Dr.N.K.Dhawan (PW3), Darshna Rani, clerk form L.H.A., Kaithal (PW4) and Satpal Class-IV employee (PW5). When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication in the case. No evidence was led in defence. The trial resulted into conviction of accused. His appeal was also dismissed with the modification in the sentence. Before discussing the other things, it may be mentioned that report made by the Public Analyst Ex.PD transpires that the milk fat was

4.7% whereas milk solids not fat was found to be 5.9% and as per the report made by the Central Food Laboratory, milk fat was found to be 3.4% and Criminal Revision No.318 of 2005 3 milk solids not fat was found to be 8.6%. The counsel has urged that in view of the variation between the two reports, it could be said that the milk was not properly stirred. In this regard, it may be observed that in the complaint as well as in evidence, Natha Singh Government Food Inspector (PW1) as well as Dr.N.K.Dhawan (PW3) have specifically stated that the milk was stirred with the help of the hand. No doubt, in order to make the sample as representative for getting it analyzed from the laboratory, stirring was an essential requirement and the Food Inspector has adopted the said procedure and has deposed about the same specifically. Not only the oral evidence but the spot memo also corroborates the fact with regard to stirring of the milk before taking the same as sample.

As regards the mentioning of a stirring method by the Food Inspector, the Act does not provide such particular method and non- mentioning of the same does not vitiate the sampling. It was observed in case Food Inspector Municipal Corporation Baroda versus Madan Lal Ram Lal Sharma and another, Prevention of Food Adulteration Cases, 1951-1975 Supreme Court of India 788 wherein the Apex Court has observed that there is nothing in the Act or the rules which prescribes that churning must be done with some instrument and that churning done by hand would not provide a homogenous and representative sample. Common sense dictates that article of food like milk and curd when churned with hand would properly mix-up from top to bottom. The next contention, raised by the counsel for the petitioner is that the marginal deviation from the prescribed standard does not make the milk adulterated. I do not agree with the contention.

Even marginal deficiency in the contents than the prescribed and definite standard in the Criminal Revision No.318 of 2005 4 prevention of Food Adulteration Rules would amount to adulteration. Reliance could be placed on the Full Bench judgment of this Hon'ble Court in case State of Punjab versus Teja Singh, 1977 Prevention of Food Adulteration Cases, 237 where there was a specific issue before the Full Bench as to whether it is permissible to add the percentage of various constituents of milk disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency or otherwise of the milk from the prescribed standards. The Full Bench answered the same in negative and observed that even the minor deviation was sufficient to declare the milk as adulterated. As regards the other contention that no independent witness has been associated at the time of taking the sample.

In this regard, it is observed that Natha Singh, Government Food Inspector, has explained that he tried to associate the independent witness but none was ready. It has been often seen that independent witnesses are reluctant to serve the cause of the State and they think that by doing so they would be put to a lot of harassment as they would have the rounds of the Courts, as such when the other evidence led by the complainant is consistent, the necessity to join the independent witness, does not create a doubt over the other evidence. It has also been observed in case Ram Labhaya versus Municipal Corporation of Delhi and another, 1951-1977 Supreme Court on Prevention of Food Adulteration Cases 441 wherein it was observed that the evidence of Food Inspector is sufficient to sustain the conviction. However, in the instant case, the statement of Natha Singh, Government Food Inspector (PW1) finds corroboration from the statement of Dr.N.K.Dhawan (PW3).

He, having no ill-will or malice against any of the witness, cannot be supposed Criminal Revision No.318 of 2005 5 to depose against the accused falsely. Now coming to the quantum of sentence, it has been urged that accused is a poor man; he has already suffered a lot on account of the protracted proceedings pending in the Courts and he has a mentally retarded child, therefore, he seeks some reduction in the sentence. Having given my thoughtful consideration to the contention, the same sans any merit. In view of the fact that the petitioner was sentenced for two years by the trial Court but taking note of all the aforesaid facts and circumstances, the Appellate Court had substantially reduced the same to six months, now to reduce the sentence further in the case would amount to a mockery of the administration of justice. Resultantly, finding no merit in the petition, the same is dismissed.

21.12.2010 mamta-II (A.N.Jindal) Judge