Bansi Lal vs State of Haryana

Harmohinder Kaur Sandhu, J.

Bansi Lal was tried for an offence under section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act by Shri S.K. Kapoor, the learned Sub Divisional Judicial Magistrate, Gohana. He was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/. Dissatisfied with this judgment dated 17, 1934 Bansi Lal filed an appeal which was dismissed by the learned Additional Sessions Judge, Sonepat, as per judgment dated May 14, 1985, against which the present revision petition has been filed.

Briefly stated, the prosecution case was that on September 28, 1981 Dr. R.C. Chopra, Government Food Inspector accompanied by some other persons visited the hotel of Bansi Lal situated at Old Bus Stand, Gohana and purchased 600 grams of Haldi (turmeric powder) on payment of Rs. 3.60. It was divided into three equal parts and was sealed as per rules into three dry and clean bottles. One sealed bottle was sent to the Public Analyst, Haryana. On analysis, he found four living meal worms, six dead weevils and one dead house fly. He reported that Haldi powder was not fit for human consumption.

The case of the prosecution was supported by Shri Chopra, PW 1, Dr. Malik, P.W. 2 and Dr. Gupta, PW 3. The contention of the petitioner when examined under section 313 of the Code of Criminal Procedure was that the Food Inspector took away the container, containing Haldi and obtained his signatures on some blank papers. He was made no payment. He further contended that he did not deal in Haldi as he was running a hotel only.

I have heard Shri N.S. Panwar, the learned counsel for the petitioner and Shri Karam Singh, AAG, Haryana and have perused the record.

The main contention of the learned counsel for the petitioner was that the petitioner was running a hotel where he served food to the customers and he was keeping turmeric for the preparation of food articles. The same was not meant for sale and, in fact, no sale had taken place. It was urged on behalf of the petitioner that the petitioner did not store Haldi powder for sale in normal course of his business nor he sold it voluntarily, so, it was not open to the Food Inspector, Gohana to insist that he should sell a part of that commodity to him for the purpose of analysis. Even if such commodity is found to be substandard, the penal consequences would not visit him. This contention of the learned counsel is without any merit as it has been held in the case of Budh Ram and another v. State of Haryana, 1985(1) Recent Criminal Reports 510 (FB) : 1984(2) Prevention of Food Adulteration Cases 179 that where an article is not for sale as such but is used in preparation of food to be served to the customers that will amount to a sale in terms of the provisions of section 7 read with section 2 (xiii) of the Prevention of Food Adulteration Act. In answering question No. 2 it was observed in the abovementioned authority that :

"The purchase by the Food Inspector in terms of Section 10 of the Act of a sample of milk or sugar or tea kept by a tea vendor not for sale as such but for being used in preparation of tea for being served to his customers amounts to a sale in terms of the provisions of Section 7 read with Section 2 (xiii) of the Act."

In view of the abovementioned authority, the petitioner cannot escape criminal liability simply on the ground that he was running a hotel and was not selling Haldi power as such.

The next contention of the learned counsel for the petitioner was that the sample in this case was taken by the Food Inspector in the year 1981 and ten years had passed when the prosecution was launched against the petitioner. He had already suffered great harassment and mental agony. He remained in jail for a part of the imprisonment. So, it is a fit case where he may not be sent to jail to serve the remaining term of imprisonment and may be dealt with leniently. Keeping in view the fact that the living or dead worms found in the Haldi powder were not visible to the naked eye the learned counsel referred to the case of Braham Dass v. State of Himachal Pradesh, 1988(2) Recent Criminal Reports 184 in support of his contention. It was observed in this case :

"Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and the High Court while reversing the judgment of acquittal made by the appellate Judge has not made clear reference to clause (f). The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment. We do not find any useful purpose would be served by sending the appellant to Jail at this point of time for undergoing the remaining period of the sentence, though ordinarily in an antisocial offence punishable under the Prevention of Food Adulteration Act the Court should take strict view of the such matter." This very authority was followed in the case of Ram Lal v. State of Haryana, 1991(1) Recent Criminal Reports 181 and Bachan Ram v. State of Punjab, 1989(2) Recent Criminal Report 151.

In view of the abovementioned authorities and considering the circumstances of the present case while maintaining the conviction of the petitioner, I reduce his sentence to the one already undergone. The sentence of fine is maintained. The petition is dismissed with this modification.