Baldev Raj vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that Baldev Singh petitioner herein was found carrying 40 litres of cow milk for sale in two cans in the area of Sadar Bazar, Karnal, on 9.6.1988 by the Government Food Inspector Shri S.L. Anand PW1 who was accompanied by Dr. B.S. Chaudhry, Deputy Chief Medical Officer, Health, Karnal and Ashok Kumar son of Niamat, an owner of Dayal Soda Water Factory, Sadar Bazar, Karnal. After disclosing his identity to the accused that he was Food Inspector, authorised to take samples of food stuff from their vendors for their analysis by the Public Analyst, Haryana, Shri. S.L. Anand, Govt. Food Inspector served notice in form VI Ex.PA upon the (sic) indicating his intention to seize sample of milk from him with a view to have the same analysed. After stirring and homogenising thoroughly the contents of the milk in one drum, Govt. Food Inspector, purchased 660 mls. of cow milk from him on payment of Rs. 3/ to him. Accused gave receipt Ex. PB to the Govt. Food Inspector which was signed by him and attested by PWs. Thereafter, Govt. Food Inspector divided that milk into three equal parts. He put each of those parts in separate, dry, clean and empty bottle. Two drops of formalin per 25 mls. of milk of 40% strength were added as preservative in each bottle. Bottles were labelled, stoppered and securely fastened and then wrapped in a strong thick paper which was secured by means of paper slip bearing the code number, serial number and signatures of the Local Health Authority, Karnal. Each bottle was sealed with distinct seal. Thumb impression of the accused was obtained on each bottle in a manner that they cut across the paper slip and wrapper on the bottles. One sealed bottle alongwith copy of form VII was sent to the Public Analyst Haryana, Chandigarh in a sealed box per railway parcel. The remaining two parts of the sample bottles alongwith two copies in form VII were deposited with the Local Health Authority, Karnal. A copy of the form VII was sent to the Public Analyst separately through registered post. Report of the Public Analyst Ex. PD was received in the office of the Local Health Authority. According to this report sample was deficient in milk solids not fat content by 43.5% of the minimum prescribed standard. Copy of the report of the Public Analyst was sent to the accused by the Local Health Authority with a forwarding letter so that if he wanted he could have the second part of the sample analysed over again.

At the instance of the accused second part of the sample was got analysed from the Director, Central Food Laboratory, Mysore, who opined that the sample was deficient in milk fat and milk solids not fat content. After examining Sh. S.L. Anand, Govt. Food Inspector, learned Magistrate charged the accused under Section 7 punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

For proving the charge framed against the accused, the prosecution examined Shri S.L. Anand, Govt. Food Inspector and Shri B.S. Chaudhry. Accused when examined under Section 313 of the Code of Criminal Procedure Code, denied the imputations appearing in prosecution evidence against him and stated that it is a false case. He examined Deep Singh DW1 in defence.

On the conclusion of the trial, learned Chief Judicial Magistrate, Karnal vide order dated 3.11.1997 found the charge proved against the accused, convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/ or in default to further undergo rigorous imprisonment for three months.

Baldev Singh went in appeal to the Court of Session against the order dated 3.11.1997 passed by the learned Magistrate convicting and sentencing him. Learned Additional Sessions Judge dismissed the appeal vide order dated 7.4.1999. Accused has come up in revision to this Court.

Learned Counsel for the petitioner submitted that the petitioner should not have been convicted when the analysis of the milk merely shows that it was deficient in milk fat content and milk solids not fat content and analysis nowhere shows that the milk was unfit for human consumption or injurious to human health. Suffice it to say, the Prevention of Food Adulteration Act has been enacted by the Parliament with a view to ensure that there is purity in the articles of food. Adulteration of food is menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that antisocial evil and for ensuring purity in the articles of Food.

An article of food shall be deemed to be adulterated

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;

(c) to (f) xxx xxx xxx xxx

as laid down in Section 2(a) of the Prevention of Food Adulteration Act.

Section 7 which prohibits manufacture, sale, etc., of certain articles of food runs as follows :

"Prohibition of manufacture, sale, etc., of certain articles of food. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute

(i) any adulterated food;

(ii) any misbranded food;

(iii) to (vi) xxx xxx xxx".

Section 16 of the Act lays down penalties for manufacture for sale, or store, sell or distribute any article of Food

(i) which is adulterated within the meaning of subclasue (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority.

(ii) xxx xxx xxx xxx".

It is thus clear that adulterated article of food is equally punishable under this Act as an article of food which is misbranded or is injurious to health.

Learned counsel for the petitioner next submitted that Ashok Kumar PW was joined but not examined. He was an independent witness. His nonexamination is in violation of the provisions of Section 10(7) of the Act. Suffice it to say, Ashok Kumar was given up by the prosecution saying that he had been won over by the accused. In this case, the requirement of section 10(7) stood fulfilled when Ashok Kumar was joined. Why should the prosecution have examined him when he had been won over by the accused ?

It was submitted that Dr. B.S. Chaudhry was Deputy Medical Officer (Health) during those days and as such he was equally interested in the seizure of the articles of food stuff for their analysis from the Public Analyst and thus he became an interested witness. Suffice it to say, Sh. S.L. Anand, Govt. Food Inspector and Shri B.S. Chaudhry did not have any animus against the accused. Accused took up the plea that he was bringing milk for being delivered to Deep Singh DW1 for the marriage of his sister. He brought this fact to the notice of Govt. Food Inspector but still he took sample. In the plea of the accused thus it is inherent that the Govt. Food Inspector took the sample of milk, he was carrying at that time. If that was so, where is the nonexamination of Ashok Kumar relevant and where detraction, if any, from the independent character of the testimony of Dr. B.S. Chaudhry is relevant ?

Learned counsel for the petitioner submitted that milk was not properly stirred and homogenised. Suffice it to say, assuming that milk was not properly stirred or homogenised, the milk would have been deficient only in milk solids not fat content whereas milk was deficient in both the milk fat content and milk solids not fat content.

It was also submitted that the report of the Director, Central Food Laboratory, Mysore was not put to the accused in the statement recorded under Section 313 of the Code of Criminal Procedure. Suffice it to say, the milk was found deficient by the Public Analyst as also by the Director, Central Food Laboratory, Mysore. I do not think any prejudice was caused to the accused if the report of the Director, Central Food Laboratory was not put to him.

I have gone through the judgment of the learned Magistrate. I do not find any infirmity or illegality in the appreciation of evidence by the learned Magistrate. I have gone through the judgment of learned Additional Sessions Judge. I do not find any infirmity or illegality in the appreciation of evidence over again by him.

In my opinion, petitioner was justifiably convicted by the two Courts below. Revision was dismissed so far as conviction is concerned vide order dated 21.4.1999. Notice was issued to AG Haryana only in regard to sentence.

Learned counsel for the petitioner submitted that the petitioner was put up on trial before the Magistrate in the year 1988. He remained in trial before the Magistrate for 9 years, whereafter he was convicted and sentenced. He went in appeal to the Court of Session. He remained in appeal before the court of Session for about 11/2 years, whereafter, unfortunately his appeal was dismissed. It was submitted that he has thus been facing the vagaries of criminal trial for the last 11 years and during all this period he has suffered great mental pain and torture. What will be the recompense to him if he is not given any concession in the matter of sentence though he has remained in mental pain and torture for all these years ? It was submitted that right to speedy trial is the basic right of the accused guaranteed to him by Article 21 of the Constitution of India. Where the Court has failed to assure the accused speedy trial, the Court should show some leniency in the matter of sentence.

Keeping in view this submission, I feel sentence imposed upon the accused should be slashed and brought down. Sentence imposed upon the petitioner is slashed and brought down to rigorous imprisonment for three months. Sentence of fine shall, however, remain intact. In default of payment of fine, he shall further undergo rigorous imprisonment for one month.

Subject to this reduction in sentence, this revision fails and is dismissed.

Revision dismissed.