Balwan vs State of Haryana

T.P.S. Mann, J.—By way of the present revision filed u/s 401 Cr.P.C., the petitioner has assailed his conviction u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentence of rigorous imprisonment for six months and fine of Rs. 1,000/-, as awarded by Sub Divisional Judicial Magistrate, Hansi on 27.7.1991 and upheld in appeal by Additional Sessions Judge, Hisar on 23.2.1994.

According to the prosecution, on 25.12.1986, Food Inspector R.R. Jindal in the presence of Dr. K.C. Aggarwal and one Banwari intercepted the petitioner near Delhi Octroi, Hansi while he was carrying a drum containing 20 litres buffalo milk on a bicycle. The Food Inspector served notice on the petitioner on Form VI prescribed under the Prevention of Food Adulteration Rules, 1955 and thereafter purchased 750 mls. of buffalo milk after mixing the whole contents properly and making it uniform for analysis. The milk so purchased was divided into three equal parts and bottled into three dry, clean and empty bottles. Two drops of 40% formalin per 25 mls were added as preservative in each bottle. The bottles were stoppered tightly and sealed on the neck as per law. One of the samples was sent to the Public Analyst, who vide report Ex.PE declared that the analysis of the sample showed milk fat as 5.2% and milk solids not fat as 8.6% and, therefore, he was of the opinion that the milk fat was 13.0% deficient and milk solids not fat 4.0% deficient of the minimum prescribed standards. The copy of the report of the Public Analyst was sent to the petitioner under registered post. This was followed by filing of a criminal complaint, wherein the petitioner was summoned for the aforementioned offences, to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution had examined PW1 R.R. Jindal, Food Inspector, PW2 Dr K.C. Aggarwal and PW3 Sant Lal, Clerk, Local Health Authority, Hansi.

When examined u/s 313 Cr.P.C., the petitioner had pleaded that he was falsely implicated in the case. Neither he had been indulging in the sale of milk nor the milk was meant for sale. Rather, he was taking the milk to the house of Babu in connection with some family function. He also stated that it was cow milk which he was carrying. Neither any sample was taken out nor any payment was made to him. In his defence, the petitioner had examined one witness, namely, DW1 Shatrujit.

Both the learned Courts below had believed the prosecution case holding the petitioner guilty of the offence, as mentioned above.

Learned Counsel for the petitioner has submitted that Food Inspector R.R. Jindal had no authority to draw the sample on 25.12.1986 nor he could launch prosecution against the petitioner. However, it is apparent from the records that when the Food Inspector had appeared before the trial Court as PW1 and stated that he was posted as Food Inspector for Hansi Tehsil on 25.12.1986. There was no challenge on the question of his authority of being the Food Inspector and competency to draw the sample and launch prosecution.

To be fair to the petitioner, when the appeal was pending before the lower appellate Court, one paper was put on the file on his behalf, wherein it stood mentioned that powers of 13 persons as Food Inspectors stood withdrawn and the name of R.R. Jindal stood mentioned at serial No.5 therein. However, the defence failed to show as to who had issued that document and under what authority it had been issued. Therefore, lower appellate Court was justified in ruling out of consideration the said document by holding that it had no evidentiary value at all.

Even the powers of Prem Kumar Nayyar, Public Analyst, Haryana, who issued repot Ex.PE has been objected to by the petitioner. When the matter was pending before the lower appellate Court, an application was filed by the petitioner wherein it was stated that said Prem Kumar Nayyar, Public Analyst, was not duly notified and appointed as such in accordance with Rules. Copy of his appointment/reversion order was attached. Though no reply was filed by the State but the lower appellate Court observed that the said issue would be considered at the time of final arguments.

It is clear from the record that when the report of the Public Analyst was tendered in evidence by the Food Inspector, no objection to the same was taken. The defence did not even attempt to get the Public Analyst summoned and question him about his powers to analyse the food samples. Therefore, no benefit can be extended to the petitioner on this ground also.

It has also been submitted by learned Counsel for the petitioner that neither the Food Inspector mixed the whole contents properly and made it uniform before drawing the sample nor the Public Analyst once again made the sample uniform before analysing its contents. If the argument of the petitioner is to be accepted, one of the contents of the sample, especially the milk fat, was expected to be in excess of the prescribed standard whereas it is established from the record that both the milk fat and milk solids not fat were deficient and less than the minimum prescribed standard. Such a deficiency could not be the result of not making of the whole contents of the sample uniform/homogeneous.

Lastly, it is submitted that the petitioner is facing the agony of criminal prosecution for the last more than 23 years. Out of the sentence of six months imposed upon him, he has already served a period of about 10 days in jail. The petitioner has already paid the fine imposed upon him. Therefore, no useful purpose would be served by sending the petitioner behind the bars, once again, for undergoing his remaining sentence, and, thus, it be reduced to that already undergone by him.

Learned State counsel has opposed the prayer made on behalf of the petitioner by submitting that as the milk sold by the petitioner was found adulterated within the meaning of Section 2(ia)(m) of the Act, he is required to be punished with imprisonment for a term which is not to be less than six months and with fine not less than Rs. 1,000/-. The petitioner has already been sentenced to minimum imprisonment and fine and, therefore, the same cannot be reduced.

In Parshadi v. State of Haryana 2004(2) R.C.R. (Criminal) 360, the sentence of a similarly situated accused, who stood convicted u/s 7 read with Section 16(1)(a)(i) of the Act was reduced to that already undergone by him as he had been facing the trial for a period of fourteen years. However, his fine was enhanced. While doing so, the Court relied upon a number of judgments, viz. Mahavir v. State through Govt. Food Inspector 2000 (4) R.C.R. (Criminal) 208, Behari Lal v. State of (U.T.) Chandigarh 2000 (1) R.C.R.(Criminal) 222, Des Raj v. The State of Haryana 1996(1) R.C.R. (Criminal) 689, Vijay Kumar v. The State of Haryana 1996(2) R.C.R. (Criminal) 554 (P&H), Mohinder Singh v. State (Chandigarh Administration) 1997 (2) R.C.R. (Criminal) 168 (P&H) and Satpal v. State of Haryana 1997 (4) R.C.R. (Criminal) 15 (P&H).

In Narinder Kumar v. State of Haryana, 2008(2) All India Criminal Law Reporter 288, this Court, once again, reduced the sentence of a similarly situated convict to that already undergone by him as the occurrence pertained to the year 1984.

In the present case, the petitioner was found to be carrying milk which was deficient in milk fat as well as in milk solids not fat. At the same time, the Court cannot lose sight of the fact that the petitioner has been facing the criminal prosecution for the last more than 23 years. As per the custody certificate produced by the learned State counsel, the petitioner has served a period of only 11 days in jail, i.e. from 23.2.1994 to 5.3.1994, besides, paying the fine of Rs. 1,000/-. Taking into consideration the totality of the circumstances, the Court is of the view that some leniency can be shown to the petitioner in the matter of sentence of imprisonment by reducing the same from six months to three months, and, at the same time, enhancing the amount of fine Rs. 1,000/-to Rs. 5,000/-.

Resultantly, the conviction of the petitioner for the offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act is maintained. However, the sentence of imprisonment is reduced to rigorous imprisonment for three months, whereas the fine enhanced to Rs. 5,000/-. In default of payment of fine, the petitioner shall undergo rigorous imprisonment for two months.

The revision is, accordingly, disposed of.