Bindraban vs State of Haryana

H. K. Sandhu, J.

The present Revision Petition is directed against the judgment rendered by Additional Sessions Judge Bhiwani dated 8.10.1986 whereby conviction and sentence awarded to the petitioner by Chief Judicial Magistrate, Bhiwani for an offence under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act was, maintained and his appeal was dismissed.

The prosecution case against the petitioner in brief was that on 2041982 Shri Amar Nath Gupta Government Food Inspector inspected the premises of the petitioner in the area of Lohar Bazar Bhiwani alongwith Doctor G. S. Narula and one Jagdish Kumar. The petitioner was found in possession of 30/32 Kilograms of rapeseed oil (Toria Oil unfiltered) for public sale. After disclosing his identity the Government Food Inspector purchased 375 grams of Toria oil for analysis. It was transferred into three dry and clean bottles which were duly scaled. One sealed bottle was sent to the Public Analyst Haryana Chandigarh who reported that sample was not clear and contained suspended matter and further that it contained free fatty acid as oleic acid 7.3 per cent against the maximum prescribed standard of 3 per cent. Since the sample was found to be adulterated,, a copy of the report of the Public Analyst was sent to the petitioner and complaint was filed against him.

The prosecution examined Shri Amar Nath Gupta Food Inspector and Dr. G. S. Naruala in support of its cue. Jagdish Kumar PW was given up by the complainant and he was examined by the petitioner in his defence.

The contention of the petitioner in his statement under Section 313 Cr.P.C. was that in fact the oil was not meant for sale. It was unfiltered oil having sedimented particles in it and her was falsely involved in the case. Jagdish Kumar supported his defence.

After hearing the counsel for the parties the learned trial Court found that the case against the petitioner was proved and he was held guilty and was sentenced to undergo imprisonment for six months and to pay fine of Rs. 1000/. Aggrieved by this judgment dated 28.10.83 the petitioner filed an appeal which was dismissed by Additional Sessions Judge, Bhawani . He has thus filed the present Revision Petition assailing his conviction and sentence.

I have heard the counsel for the parties.

It was urged on behalf of the petitioner that in fact Toria oil from which sample was taken was not for public sale as it was still in the process of manufacturing. When the Food Inspector wanted to take sample of the oil, the petitioner represented that in fact that was not Toria oil and that was only unfiltered oil containing gaad and it was yet to be filtered but still sample was taken. This oil could be put to sale only after process of filter was carried out. The sample was taken from the factory of the petitioner. This version is supported by the only independent witness joined by the Food Inspector who appeared as DWI. Even the Food Inspector and the Doctor who accompanied him had not denied that it was unfiltered ''Torai'' oil of which sample was taken. The petitioner, therefore, could not be held liable for any offence as the manufacturing process had not been completed nor there was any evidence to show that the petitioner had been selling that oil to anyone. I find that this contention of the learned counsel is quite valid. The very fact that the article of which sample was taken was unfiltered Toria oil and it was taken from the factory where the oil expeller was installed will show that the oil was yet to be filtered and cleaned before. It could be put to sale. Admittedly 5/6 kilograms of gaad was lying at the spot The only independent witness Jagdish Kumar was given up by the prosecution and he rather supported the defence version that oil was not meant for sale. The witness was not given up as having been won over by the petitioner, so his credibility was not affected. If the oil was still under the manufacturing process and, was not meant for sale, the petitioner. could not be held guilty for any offence.

Secondly. it was urged on behalf of the petitioner that in his statement under Sec. 313 Cr.P.C., the petitioner was not specifically put any question regarding the adulteration found in the oil. According to the report of the Public Analyst the sample contained free fatty acid as oleic acid 7.3 percent against the maximum prescribed standard of 3 percent but this material question was not put to the petitioner in his examination under Section 313 of the Code of Criminal Procedure and it prejudiced the case of the petitioner. In support of his contention the learned counsel placed reliance on the case of Subhash Kumar v. State of Punjab, 1986(2) Recent Criminal Reports 37 : 1985 Chandigarh Criminal cases 275. In this case sample of milk was found to be deficient in Milk Solids not, fat contents, and that the same were 7.6 per cent as against the minimum prescribed standard of 8.5 percent. This deficiency of Milk Solids Not Fat was not put to the petitioner in his examination under Section 313 Cr.PC. It was held that the same caused prejudice to the petitioner and he was entitled to benefit of doubt.

In the present case also the petitioner was not put any question regarding the adulteration alleged to have been found by the Public Analyst in his report for the sample of Toria oil, The only incriminating circumstance against the petitioner was that the sample of Toria oil taken from him contained more fatty acids than the prescribed standard of 3 par cent but this fact was not put to him. In such like circumstances the examination under Section 313 Cr.P.C. did not seek explanation about actual and real circumstance that was brought out in evidence against the petitioner. He was thus entitled to benefit of doubt on this score alone.

As a result of my above findings I allow this Revision Petition, set aside the conviction and sentence imposed upon the petitioner and acquit him of the charge. Fine if realised shall be refunded to the petitioner.