Avtar Singh vs State of Punjab

B.S. Yadav, J.

The present petitioner Avtar Singh was convicted under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act, 1954 (for short the Act) by the learned Judicial Magistrate Ist Class, Sangrur, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1500/. Rigorous imprisonment for 6 months was also awarded in default of payment of fine. Feeling aggrieved against his conviction and sentence the petitioner filed an appeal which was heard by learned Additional Sessions Judge II, Sangrur. He maintained the conviction of the petitioner but reduced the sentenced of rigorous imprisonment to 6 months. The sentence of fine was maintained. The petitioner has now come to this Court in revision.

The prosecution story in brief is that on 31st July, 1981 PW1 Nek Chand Goyal, Government Food Inspector, accompanied by PW2 Dr. Ved Kumar Aggarwal intercepted the petitioner on the Mehlan Road near Bus Stand, Sangrur. The petitioner was carrying 15 kgs of mixed milk contained into drums for public sale. After observing necessary formalities, Nek Chand Goyal purchased 660 ml. of mixed milk from the petitioner. The milk was divided into 3 equal parts. Each part was put in dry and clean bottle and 18 drops of formaline were added in each bottle as preservative. The bottles were then properly corked, labelled and wrapped in accordance with the procedure laid down by the Act and Rules framed thereunder. One sealed bottle was sent to the Public Analyst, who vide his report Exhibit P.D. found the sample to be adulterated in as much as milksolidsnot fat were 18% deficit of the prescribed standard. After the receipt of the report of the Public Analyst, the Government Food Inspector launched the prosecution against the petitioner.

It may be mentioned here that on the application of the petitioner second scale bottles of the sample was sent to the Central Food Laboratory for analysis. The Director of the said laboratory vide report Exhibit PJ opined that sample did not conform to the standard of mixed milk as laid down in the table below item No. A. 11.01.11 (Appendix B) of the Prevention of Food Adulteration Rules, 1955 as milkfat and milksolidsnot fat were less than the minimum prescribed standard. The analysis disclosed that the milkfat contents were 3.6% while milksolidsnotfat 7.8%.

The prosecution version as given above is supported by PW1 Nek Chand Goyal and PW2 Dr. Vinod Kumar Aggarwal.

At the close of the prosecution evidence the accused was examined under Section 313, Criminal Procedure Code. He pleaded that he was carrying only 5 kgs. of cow milk for his personal use. It was not for sale.

In his defence the petitioner examined DW1 Puran Singh. DW2 Goverdhan Lal and DW3 Gurjit Singh. The substance of the statements of these witnesses is that the petitioner did not deal in milk and on the day of occurrence he was taking the milk to the house of his brother Gurjit Sigh (DW3) whose son''s birthday was to be celebrated on that day.

The learned counsel for the petitioner vehemently argued that Nek Chand Goyal (PW1) was not properly invested with the powers of the Government Food Inspector. In this respect reference will have to be made to the relevant provisions of the Act. Relevant portion of Section 24 of the Act reads as follows :

"24(1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not failing within the purview of section 23.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may :

(a) xx xx

(b) xx xx

(c) xx xx

(d) xx xx

(c) Provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food Health Authority to subordinate authorities or to local authorities.

xx"

In exercise of these powers the State of Punjab framed Prevention of Food Adulteration (Punjab) Rules, 1958. Rule 3 of the said Rules reads as follows :

"3. The State Government may by an order in writing, delegate its powers to appoint food inspectors, to authorise a person to institute prosecution for an offence under the Act and such other powers exercisable by it under the Act may be specified in the order to the Food (Health) Authority of the State of Punjab."

On 10th October, 1968 the Punjab Government issued notification No. 55752 HBII68/29659, which was published in the Punjab Government Gazette, dated 10th October, 1968 (Part I) By this notification in pursuance of rule quoted above, powers were delegated to the Food (Health) Authority also its power to appoint Food Inspectors and to authorise institution of prosecution for an offence under the Act. Food (Health) Authority has been defined in section 2 (iv) of the Act as follows :

"Food (Health) Authority" means the Director of Medical and Health Services or the Chief Officer in charge of Health administration in a State, (by whatever designation he is known and includes any officer empowered by the Central Government or the State Government by notification in the official Gazette, to exercise the powers and perform the duties of the "Food (Health) Authority" under the Act with respect to such local area as may be specified in the notification."

Copy of the notification which is a page 16 of the lower Appellate Court''s file shows that Director, Health and Family Planning, Punjab vide notification No. EIVI Pb. 73/1872, dated 9th March, 1973, in exercise of the powers conferred upon him by the various sections of the Act and rule 3 quoted above, appointed Nek Chand Goyal and others as Food Inspectors for the notified areas of the District in which they had been posted and also authorised them to institute proceedings against the persons committing the offence under the said Act. That notification was published in the Punjab Government Gazette Part III, dated 7th December, 1973. As noticed earlier, that notification was made by the Director of Health and Family Planning, Punjab. Merely because the Director, Health was also Incharge of the Family Planning Department, it will not invalidate the delegation of powers to PW1 Nek Chand Goyal and others as Food Inspectors and their authorisation to launch proceedings against the persons committing offences under the Act. Therefore, it is held that PW1 Nek Chand Goyal was duly authorised to take sample from the petitioner and launch prosecution against him.

Learned counsel for the petitioner vehemently argued that in the present case the Government Food Inspector did not comply with the provisions of section 10(7) of the Act inasmuch as no person of the locality was called to witness the proceedings. According to him, Dr. Ved Kumar Aggarwal who had been associated in the proceedings about the taking of sample but and Food Inspector cannot be said to be an independent witness. In support of his contention he has relied upon Ramesh Chander v. The State of Haryana, 1983(1) F.A.C. 198 where in it was remarked as follows :

"In the instant case, on going through the statement of Dr. A.S. Dhir, it is plain that he did not make any effort to the kind whatsoever. His taking a departmental colleague along with him to witness the taking of the sample would not improve matters. Effort had to be made to call some one from the neighbourhood, and a statement in that regard should have found mention in the testimony of the Food Inspector. There is not even a trace of it either in his examinationinchief or crossexamination. Thus the conviction of the petitioner cannot be sustained for completely ignoring section 10(7) of the aforesaid Act."

However, the facts of the instant case are different. PW1 Nek Chand goyal has stated that at the time of taking sample 2/3 persons had collected at the spot and he requested them to witness the proceedings but they refused to do so. To the same effect is the statement of PW2 Dr. Ved Kumar Aggarwal. In such circumstances, the following observations made by their Lordships of the Supreme Curt in Ram Labhaya v. Municipal Corporation of Delhi and another, 1974 Supreme Court cases (Crl) 527 would be applicable:

"The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Ram Hargovindas v. State of Gujarat, 1971 SCC Cr. 337 it was held by this Court after noticing that Section 10(7) was amended in 1964, that noncompliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

As stated earlier the Food Inspector was unable to secure the presence of independent persons and was, therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fratenalties but no Court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."

Moreover, I am of the opinion that PW2 Ved Kumar Aggarwal can be said to be an independent witness. The Food Inspector might be interested in seeing that the cases of adulteration detected by him succeed in a court of law as it reflects upon his efficiency but it cannot be said about PW3 Dr. Ved Kumar Aggarwal. When responsible persons like doctors are associated in the proceedings, it will not do justice to them, if we start doubting their statements merely on the ground that they are government servants. PW2 Dr. Ved Kumar Aggarwal was neither the subordinate nor colleague of the Government Food Inspector. His will was not dependent on the latter. I am not going to believe that a respectable person like the doctor would toe the line of the Government Food Inspector merely because the latter is also a government servant. Hence it is held that in the present case there has been sufficient compliance of Section 10(7) of the Act.

Learned counsel for the petitioner argued that except the bare statements of PW 1 Nek Chand Goyal and PW2 Dr. Ved Kumar Aggarwal that the accused had kept milk for sale for human consumption, there is no evidence to corroborate their statements. He further pointed out that both the witnesses of the prosecution have admitted that the accused had not sold the milk to any person in their presence. He, therefore argued that the petitioner cannot be termed to be a dealer in milk and, therefore, his conviction is bad. In support of his contention he has relied upon Masta Singh v. Union Territory, Chandigarh, 19511982 FAC (SC) 491 wherein it was remarked:

"Even on the question whether the milk was meant for sale there is absolutely no evidence on the record except the ipso dixit of PW1 which is also so vague that no court can rely on such a statement."

However, another Bench of the Supreme Court has held in The Food Inspector Calicut Corporation v. Cherukattil Gopalan and another, AIR 1971 SC 1725, as follows :

"To sum up we are in agreement with the decisions in AIR 1964 All 199 and AIR 9965 Mad 98, to the extent to which they lay down the principle that when there is sale to the Food Inspector under the act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under S. 16(1)(a)(i) read with Section 7 of the Act. We further agree that the Article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions.

Reference can also be made to the State of Tamil Nadu v. R. Krishnamurthy AIR 1980 SC 538, wherein it was remarked:

"The object is to emphasise that whatever be the purpose of the sale it is sale for the purpose of the Act, just as the words whether by wholesale or retail'' `or'' whether for cash credit or by way of exchange'' are intended to emphasise that it is immaterial for the purpose of the Act what manner and method of sale is adopted. To give any other interpretation to the definition of `sale'' would be to exclude from the ambit of the Act, that which has been included by the definition of `food''. Further, a sale'' for `analysis'' can never be a sale for `human consumption'' but it nonetheless is a sale within the meaning of the definition. It is an unqualified sale for the purpose of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby issue himself against prosecution for selling adulterated food. If sale for analysis is an unqualified sale for the purpose of the Act, there is no reason why other sales of the same article should not be sales for the purpose of the Act. The question may be asked why sale for analysis should be specially mentioned if all manner of sales are included in the definition. It is only to prevent the argument that sale for analysis is not a consensual sale and hence no sale, an argument which was advanced and rejected in Mangaldas v. State of maharashtra, AIR 1966 SC 128."

Hence in the present case it will have to be held that the petitioner is a dealer in milk and had effected the `sale'' of milk to the Government Food Inspector as defined under the Act.

It may be mentioned here that the plea of the petitioner and the defence evidence led by him that the milk had not been kept by him for sale have been considered by both the learned courts below. It has been found by them to be incorrect. Otherwise also that plea does not inspire confidence. According to the prosecution the petitioner was found in possession of 15 kgs. of milk. The petitioner has signed spot memo Exhibit PC wherein it is mentioned that he was in possession of 15 kgs. of milk. Consequently the defence plea that he was in possession of only 5 kgs. of milk for his personal use is clearly an afterthought.

Lastly, the learned counsel for the petitioner argued that milk is a primary food. He prayed that the sentence awarded to the petitioner be reduced. A Full Bench of this Court has held that the milk is not a primary food. The judgment is reported as Budh Ram v. State of Haryana, 1985(1) RCR(Crl.) 510 (P&H) : 1985 Criminal law Journal, 311. Hence the question of further reduction of sentence of imprisonment awarded to the petitioner does not arise. However, considering the fact that the petitioner is facing the agony of prosecution since 1981, I reduce the sentence of fine to Rs. 1000/. The sentence of imprisonment awarded to the petitioner by the learned courts below in default of payment of fine is maintained.

Except with the above modification in the sentence of fine only, the present revision petition fails and is dismissed. The petitioner to surrender to the bail bonds to undergo the unexpired period of sentence.