Balbir vs State of Haryana

M.L. Koul, J.

The convict Balbir (hereinafter referred to as the accused) faced a trial for an offence described under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) on the ground that on 13.6.1981 the complainant Food Inspector purchased 450 grams of Chillies powder from the possession of the accused contained in a Pipa against payment which on analysis was found to be adulterated by the Public Analyst. Thus on trial he was convicted for the said provisions of the Act and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/; in default of payment of fine to undergo further rigorous imprisonment for a period of three months by the Chief Judicial Magistrate, Kurukshetra vide his judgment/order dated 25.3.1986.

Against this judgment an appeal was preferred by the accused before the Additional Sessions Judge, Kurukshetra who in a comprehensive judgment while confirming the conviction and sentence passed by the trial court dismissed the Appeal.

Aggrieved of the concurrent findings of the Courts below this revision has been preferred by the accused mainly on the ground that great illegality has occurred in setting up the case against the accused on the basis of which the conviction and sentence cannot be sustained as there is no mention in the complaint that the chillies were mixed thoroughly before taking the sample. Besides, there was violation of Section 13(2) of the Act because the trial Court did not send the second part of the sample to the Central Food Laboratory on the application of the accused. The delay in filing the application was of no consequence and the right of the accused on this ground could not be defeated.

Heard learned counsel for the parties and also bestowed my thoughtful consideration over the record on the file.

I went through the evidence recorded in the case and it is found that the complainantFood Inspector who has taken the sample from the shop of the accused and Dr. Santosh Gupta, District Malaria Officer who visited the shop of the accused on the relevant date and took the sample have categorically stated that the Lal Mirchi powder was mixed in the Pipa before the samples were taken. This evidence of the prosecution witnesses could not be shaken away by the defence showing that the Pipa of Lal Mirch was not properly mixed before the sample was taken by the Food Inspector and therefore, there was every likelihood that the sample taken was dust borne and not adulterated. In this regard, it is very material to make mention of the report of Public Analyst Ex. PD which fully corroborates the fact that the Mirchi purchased by the Food Inspector as sample was adulterated and the ratio of adulteration is more as contained in the judgment of the trial court and the Additional Sessions Judge as well. The Additional Sessions Judge has comprehensively dealt with all the points raised before him by the defence and has confirmed the finding of the trial Court that the Chilly powder contained in a Pipa held by the accused in his shop was properly mixed before the sample was taken. There is no defence available on behalf of the accused that the Chillies in the Pipa were not mixed before the sample was taken and the credence to that view can be drawn even from the fact that the accused did not try to ask for the second sample to be sent to the Central Food Laboratory as is required under the law. The mere fact that it is not contained in the complaint that the chillies were mixed before the sample was taken does not cause any suspicion in the mind of the Court that the sample was made adulterated afterwards. The sample was taken in the presence of the accused under a proper seal and cover and the same was sent to the Public Analyst who received it intact under seal and on analysis found that it was adulterated.

Learned counsel for the accused has referred to the judgment of a Division Bench of this Court in State of Punjab v. Munshi Ram and others, reported as 1992(1) RCR 47. This case law does not have any bearing on the merits of this case for the fact that the complainant and the accompanying witnesses Dr. Santosh Gupta who are the public officers could not be disbelieved that the chillies were properly mixed before the sample was taken the accused for they do not bear any personal enmity against the accused to lodge a false prosecution against him. In the circumstances this court is not in a position to take a different view than what has been taken by the Courts below.

learned counsel for the petitioner further argued that provisions of Section 13(2) of the Act have not been complied with and therefore the trial conducted against the accused is defective. From the perusal of the record, it is found that the report of Public Analyst was made known on 10.7.1981 and the complaint stood filed against the accused on 22.7.1981. On 23.7.1981 the Local Health Authority addressed a letter to the accused intimating that he could move the Court of Chief Judicial Magistrate within 10 days to get other part of the sample held by him analysed from the Central Food Laboratory, Ghaziabad. There is no proof available that such a letter was not received by the accused, rather the accused sat over the matter for two years. Thus there was no fun in sending the sample to another Public Analyst after the lapse of two years when no utility was left with the sample to be examined after such a long period. The trial Court was, therefore, correct in refusing such application moved by the accused before it. No illegality has been committed by the trial Court in rejecting such application and, therefore, there has been no violation of the provisions of Section 13(2) of the Act.

No illegality or impropriety has been found to have been committed by the courts below in coming to the conclusion that the accused has committed an offence within the provisions of Section 7 read with Section 16(1)(a)(i) of the Act.

However, it is argued that the accused has undergone a long turmoil for the prosecution was initiated against him in the year 1981 and he was convicted in the year 1986. His appeal was disposed of in 1987. In such circumstances he deserves some consideration with regard to the quantum of sentence imposed upon him by the Courts below. In this regard reliance has been laid down on a Supreme Court ruling reported in 1988(2) RCR 184, wherein their lordships have held that no useful purpose would be served by sending the accused in jail for the occurrence had taken place 8 years back. The said ruling of the Apex court does not hold any bearing on the merits of this case for the fact in that case the accused was acquitted by the Sessions Judge and on appeal he was sentenced to undergo imprisonment for six months and to pay a fine of Rs. 1000/ by the High Court. It was in that context of the matter that their lordships have held that coming to the question of sentence we find that the appellant had been acquitted by the trial Court and the High Court while reseving the judgment of acquittal has not made clear reference to clause (f). Besides it was held by their lordships that the record shows that the appellant has already suffered a part of the imprisonment. The situation in the present case is different. The accused has been concurrenly held guilty by both the Courts below and this Court does not feel that any impropriety or illegality has been committed by the Courts below which deserves some mercy to be exercised by this Court in reducing the sentence of the accused to a few days which he has already undergone.

It has been held by the Court recently in Haryana State v. Shyam Lal, Crl. A. No. 50SB of 1995 [1996(3) Recent Criminal Reports 832] that there is no power within the provisions of Section 16(3) of the Act where the sentence can be reduced lesser than three months for the reasons to be recorded by the Court. As stated above, the accused has undergone a long turmoil in facing the prosecution which started in the year 1981 and has not yet come to close in one form or the other although at the behest of the accused. Thus keeping in view this fact of the matter, the sentence awarded to the accused in reduced from six months rigorous imprisonment of three months rigorous imprisonment whereas the sentence of fine and in default thereof is maintained. This revision petition is disposed of accordingly.