Bihari Lal vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that on 27.6.91 accused Bihari Lal was found keeping in his possession 50 kgs. Dal Chana at his shop, which was meant for sale to the public. Shri Amar Nath, Government Food Inspector authorised to seize samples of food stuff from their vendors with a view to have the same analysed from the Public Analyst disclosed his identity to the accused that he was Government Food Inspector so authorised and that he was there with a view to take sample of Dal Chana for its being analysed from the Public Analyst. He gave notice Ex.PA to him to this effect and asked him to supply him 600 grams of Dal Chana on receipt of necessary price from him. Accused supplied him 600 grams Dal Chana on receipt of Rs. 6/ from him vide receipt Ex.PB. He divided Dal Chana, so purchased, into three equal parts. He put each part in separate empty, clean and dry bottles. These sample bottles were sealed. One part of the sample was sent to the Public Analyst, Haryana, who found vide analysis report that sample was unfit for human consumption as it was found to contain six living weevils. On receipt of the report of the Public Analyst, copy thereof was sent to the accused together with a forwarding letter calling upon him to have the sample reanalysed, if he so wished. GFI instituted complaint under Sections 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. Accused was charged under Sections 7/16(1)(a)(i) of the Prevention of Food Adulteration Act. 1954 after examining evidence.

On the conclusion of the tribal, Chief Judicial Magistrate, Jagadhri found the charge under Sections 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 proved against the accused. He, accordingly, convicted him thereunder and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/ or in default of payment of fine, he shall further undergo RI for 2 months vide order dated 27.8.98.

Bihari Lal went in appeal to the Court of Session against the order of learned Chief Judicial Magistrate, Jagadhri convicting and sentencing him. Learned AddI. Sessions Judge, Jagadhri dismissed the appeal vide order dated 24.3.99. Feeling that he has been unjustly convicted and sentenced by the learned courts below, Bihari Lal has come up in revision to this Court.

I have the learned counsel for the petitioner, learned Assistant Advocate General, Haryana and have gone through the record.

Learned counsel for the petitioner submitted that Dal Chana is primary food as defined in Section 2(m) of the Prevention of Food Adulteration Act, 1954 as it is an article of food being produce of agriculture in its natural form. He submitted that as per Clause (m) of S. 2 of the Prevention of Food Adulteration Act, 1954, if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health : Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of subClause (m) of Clauses (i) of Section 2. The word, `infest'' means, to attack, assail, annoy, or trouble (as person or things) in a persistent manner, to visit persistently, to swarm in or about so as to be troublesome. The article of food would be deemed to be adulterated under Section 2(i)(f) of the Act if it is insect infested or is otherwise unfit for human consumption. Infestation does not necessarily mean insect infestation as there were also other kinds of infestation such as fungus and bacteria. The article claimed to contain insect infestation should be proved to be fit for human consumption. In this case, the presence of six living weevils would make the consumption of Dal Chana unfit of human consumption. As per the report of Public Analyst and the Director, Central Food Laboratory, the sample of Dal Chana was found insectinfested with both live and dead insects identified as `tribolium castaneum''. The amount of insectdamage was found to have exceeded the prescribed limit of 10.0% (by count). In Vijay Kumar v. State of Punjab, 195177 P.F.A. Cases 437 "IIachidana insectinfested to the extent of 9.7% was held to be adulterated by the Hon''ble Supreme Court within clause (f) of section 2(i) of the Act." The article of food shall be deemed to be adulterated if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insectinfested or is otherwise unfit for human consumption. Presence of six living weevils did make Dal Chana adulterated within the meaning of Subclause (f) of Section 2 clause (i) of the Act.

Learned counsel for the petitioner submitted that in this case, sample of Dal Chana was found to contain six living weevils and there is difference between weevil and insect. In support of this contention, he drew my attention to State of Haryana v. Om Prakash, 1992(3) RCR 489 where it was held that "there is difference between worminfested and insectinfested. The word `insect'' is defined in the Oxford Dictionary as small invertebrate segmented animal having head, thorax, abdomen and three pairs of thoracic wings." The word "worm" in the same dictionary is defined as kinds of invertebrate limbless or apparently limbless creeping animal, such as are segment in rings or are parasite in the intestines or tissues. There is, therefore, a good deal of difference between worm and insect and a sample of food becomes adulterated only when it is insectinfested." This was the view taken in M/s Narkeklange Roller Flour Mills and another v. The Corporation of Calcutta, 1973 Food Adulteration Cases (Calcutta) 257. In this case, the Calcutta High Court found that presence of worms in the sample does not satisfy the requirement of the definition of adulteration u/s 2 of the Act. Suffice it to say, in State of Haryana v. Om Prakash (supra), the report of Public Analyst merely showed that the sample contained one weevil and 16 living meal worms. Public Analyst did not opine that the sample was otherwise unfit for human consumption. It was held that the presence of 16 living meal worms did not make sample of Zeera insectinfested. Since the report of Public Analyst did not state that Zeera was unfit for human consumption, presence of living worms in the sample of Zeera taken from the accused did not prove that the sample was adulterated. In Wazir Chand v. State, 1974 FAC Delhi 264 it was observed that there has to be a large number of insects present in an article before it can be said to be insectinfested. Presence of few insects will not make the food article come under the mischief of "insectinfested". Weevil as given in Chamber''s 20th century Dictionary New Edition 1983 means a "popular name for a large number of beetles with the anterior part of head prolonged into a beak or proboscis, which, either in the larval or the adult form, damage fruit, nuts, grain or trees any insect injurious to stored grain." In this case sample of Dal Chana was found to contain 6 living weevils. If Dal Chana was infested by weevils, how could it be said to be fit for human consumption ? Learned counsel for the petitioner submitted that as per the Food Inspector at the time of taking sample, he did not notice any insects in the sample of Dal Chana and if that was so, might be insects bred afterwards, due to the sample having been taken towards the end of month of June and analysed afterwards when it was rainy season. He submitted that no wonder moisture entered the sample bottles and insects bred due to the presence of moisture. Suffice it to say, there is no evidence that there was any rains during those days. Furthermore, Food Inspector took the sample because of the presence of living weevils why should he have taken sample of Dal Chana if there were no infestation in Dal Chana.

In my opinion, learned Magistrate justifiably convicted the accused. Learned Addl. Sessions Judge, Jagadhri justifiably maintained his conviction.

Petitioner should have been dealt with leniently keeping in view the fact that he has faced trial before the Magistrate for seven years. He was put up on trial before the Magistrate in July 91. Case was decided in August 98. For 7 years his fate kept hanging in the balance. Magistrate convicted and sentenced him on 27.8.98. He went in appeal. Learned Addl. Sessions Judge maintained his conviction on 24.3.99. His fate thus kept hanging in balance for 7/8 months before the learned Addl. Sessions Judge, Jagadhri. Right of speedy trial is a basic right given to an accused by Article 21 of the Constitution of India. It is the duty of the Court to assure the accused of speedy trial. Where the Court is not able to assure the accused of speedy trial, the Court should be lenient towards him in the matter of sentence. In Kartar Singh v. State of Punjab, 1994(2) RCR 168 the Hon''ble Supreme Court held that "right to speedy trial is one of the facets of fundamental right to life and liberty. The concept of speedy trial is read into Article 21 as an integral part of the fundamental right to life and liberty guaranteed and preserved under our Constitution." Constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.

Keeping in view that petitioner has suffered vagaries of criminal trial for more than 7 years and also that he has been in mental agony for all these years, I think there should be some recompense to him in the matter of sentence. In Vijay Kumar v. State of Haryana, 1996(2) RCR(Crl.) 554 : 1996(3) RCC 573 a learned Single Judge of this Court held that although minimum sentence to be imposed upon a convict is prescribed by statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution.

For the reason given above, this revision fails and is dismissed so far as conviction is concerned but so far as sentence is concerned, the same is reduced to RI for 3 of months. Sentence of the fine shall remain intact. In default of payment of fine, he will undergo RI for one month.

Revision dismissed.