Chhajju Ram vs State of Haryana

K.S. Kumaran, J.—Revision-Petitioner-Chhajju Ram was convicted for having committed an offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Act) by the learned Chief Judicial Magistrate, Ambala, by his judgment dated 11.11.1986.

The case of the prosecution was that on 16.8.1980, the then Government Food Inspector, Ambala, alongwith Dr. S.P. Singh Bhatia, Medical Officer (Incharge Civil Hospital, Kalka) visited the halwai-shop of Petitioner-Chhajju Ram, who had 5 kgs. of boiled cow�s milk in a Patila for sale to public. The Food Inspector purchased 660 mls. of the said milk on payment of the price under receipt Ex. PB. The sample was taken after thoroughly stirring the milk and making it homogeneous, divided into three equal parts, put into three dry, clean bottles and formalin was added to the samples as preservative. The bottles were duly wrapped and sealed. Sample was taken in the presence of an independent witness by name Narrottam Singh. One of the samples was sent to Public Analyst, Haryana, at Chandigarh, whose report Ex. PD showed that sample was not in accordance with the standard prescribed under the Prevention of Food Adulteration Rules as the same was found to contain milk fat 3.5% deficient of the minimum prescribed standard. It is on this basis the complaint--Ex. PE was presented before the Chief Judicial Magistrate, Ambala, by the Food Inspector. The Petitioner applied to the Court for getting the second sample tested from the Director of Central Food Laboratory, who after analysis sent his report Ex. PE finding that the sample did not conform to the standard laid down under the Rules, as the milk fat was found 2.9%, i.e., muchless than the minimum prescribed standard.

The prosecution examined the Food Inspector and Dr. S.P. Singh Bhatia, but gave up Narrottam Singh. The Petitioner accused in his statement u/s 313, Code of Criminal Procedure claimed innocence and contended that since the milk was boiled one and the fat was deposited on the surface of the Patila, and since the sample was purchased without stirring the milk properly, he was not guilty. The Petitioner accused also examined Narrottam Singh as D.W. 1, who deposed that the milk was not stirred properly before the sample was taken. The learned Chief Judicial Magistrate did not accept the contention of the Petitioner accused that the milk was not stirred and made homogeneous before the sample was taken. He found that even in the complaint, it has been mentioned that the sample was stirred, and the Food Inspector (P.W. 1) and Dr. S.P. Singh Bhatia (P.W. 2) have also deposed to that effect and that they had no enmity with the accused. The learned Chief Judicial Magistrate also held that D.W. 1 and Narrottam Singh was not trustworthy since he had signed the documents Ex. PA to PC, without raising any objection in spite of the fact that he is a graduate, and since he did not make any report about this to any authorities. The Petitioner/accused also contended that though the sample was received in the Laboratory on 9.12.1980 whereas the report of the Central Food Laboratory is dated 4.4.1981, which is a violation of the provisions of Section 13(2B) of the Act. The learned Chief Judicial Magistrate found that though this report is dated 4.4.1981, there is no mention as to on what date the sample was actually analysed by the doctor and that the Petitioner-accused also failed to show how he was prejudiced, and in this regard, relied upon the decision of the Hon�ble Supreme Court in State of Himachal Pradesh v. Thakur Dass 1986 (2) FAC 1. Ultimately, he convicted the Petitioner-accused u/s 16(1)(a) read with Section 7 of the Act and sentenced him to rigorous imprisonment for one year, to pay a fine of Rs. 1,000 and in default to further undergo rigorous imprisonment for one month. Aggrieved by this, the Petitioner-accused filed Criminal Appeal No. 58 of 24.11.1986 and the learned Sessions Judge, Ambala, on 13.3.1987 confirmed the conviction of the accused but modified the substantial sentence of imprisonment of six months of rigorous imprisonment while maintaining the fine and the default-sentence. The learned Sessions Judge also did not accept the contention that the milk was not made homogeneous before taking the sample and held that there was no reason to doubt the evidence of the Food Inspector and the Director in this behalf. So far as the contention that the provisions of Section 13(2B) of the Act have not been complied with since the report of the Forensic Laboratory was not sent within the prescribed period, the learned Sessions Judge also did not accept the same and held that the delay in sending the report by the Director of Central Food Laboratory cannot earn acquittal to the Petitioner-accused. Ultimately he confirmed the conviction, but, modified the sentence as mentioned above.

Therefore, the accused has filed this Criminal Revision Petition. Before me also, the Learned Counsel appearing for the Petitioner-accused raised the plea that the milk was not stirred properly and made homogeneous before the sample was taken and, therefore, the Petitioner-accused is entitled to acquittal. But this being purely a question of fact and both the trial Court and the appellate Court having held against the Petitioner-accused on this ground and there being no infirmity or illegality in this finding of fact, I am not inclined to accept this contention of the Petitioner-accused. As is seen from the record, the complaint--Ex. PE shows that the milk was stirred, as pointed out by the trial Court. The Food Inspector and the Medical Officer who accompanied him have also deposed to that effect and the finding of Courts below is that there was no reason for disbelieving them. Of course, the independent witness Narrottam Singh had deposed that the milk was not stirred, but he being a graduate there was absolutely no reason for them to attest the relevant documents if really the milk was not stirred. Therefore, he has been rightly disbelieved.

The other point raised by the Learned Counsel for the Petitioner is that the sample was collected on 16.8.1980 and was sent to the Central Food Laboratory on 9.12.1980 on the application given by the Petitioner-accused, whereas, the report was received after a long delay on 4.4.1981 only. The contention of the Learned Counsel for the Petitioner is that the report ought to have been received within 30 days, but, as rightly pointed out by the Courts below this cannot be stated to affect the case in any manner unless the Petitioner-accused is able to show some prejudice. Of course, this section provides that the report should be sent within 30 days. But, if the report is not sent within the said period, the accused cannot contend that the whole prosecution is vitiated and that he should be acquitted. It is not as if the sample itself was sent after long delay to the Laboratory. The contention is that the report is received after delay. Unless prejudice is shown to the accused, the mere delay cannot vitiate the prosecution or the trial. There is no evidence to show that the sample itself was analysed after long delay. In the absence of such evidence, the accused cannot take advantage of delay in receiving the report. Further, in this case the report of the Public Analyst is dated 10.9.1980 (Ex. PD), and it is only the report of the Central Food Laboratory (Ex. PG) that has been signed on 4.4.1991. The report of the Public Analyst Ex. PD shows that the milk fat was 3.5 % deficient. The report of the Central Food Laboratory also shows that the milk fat was 2.9% only and the sample did not conform to the standard since the milk fat was less than the minimum prescribed. So we have two reports which show that the sample was not in conformity with standard prescribed by the rules. In such circumstances, 1 am of the opinion that the delay in receipt of the report will not vitiate the trial of the Petitioner-accused.

The last contention of the Learned Counsel for the Petitioner is that the sample was taken on 16.8.1980 and the Petitioner has suffered the agony of these legal proceedings so far and, therefore, this Court should take a lenient view with regard to the sentence. The learned Chief Judicial Magistrate convicted and sentenced the accused on 11.11.1986 nearly after a period of six years from the date of the occurrence, and the learned Sessions Judge disposed of the appeal on 13.3.1987. Thereafter the petition has been pending in this Court. The Petitioner has suffered the agony of the long pending proceedings for 17 years. The Learned Counsel for the Petitioner relied upon the decision of this Court in Vijay Kumar v. State of Haryana 1996 (2) RCR 554, which clearly supports the contention of the Petitioner. There also, as in the present case, the State contended that when the Act prescribed a minimum, there was no reason to reduce the sentence. But this Court relying upon the decision of the Hon''ble Supreme Court in Braham Dass v. State of Himachal Pradesh 1988 (2) RCR 184 and judgments of this Court in Nand Lai v. State of Haryana 1992 (1) RCR 82 ; Ishwar Singh v. State of Haryana 1994 (1) RCR 160 and Chander Bhan v. State of Haryana 1996 (1) RCR 125, held that in view of the facts and circumstances of the case where the accused had faced the agony of the protracted prosecution and suffered mental harassment for a long period of more than 10 years, his sentence is reduced to the period of imprisonment already undergone, but maintained the fine and the default sentence. In Chander Bhan�s case (supra), this Court observed as follows :

Now it cannot be disputed that the right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Fundamental rights were not a teasing illusion to be mocked at. These were meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any-the-less the right of the accused. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal revision and retrial. This is how, the Court shall understand this right and have gone to the extent of quashing the prosecution after such inordinate delay in concluding the trial of an accused keeping in view the facts and circumstances of the case. Keeping a person in suspended animation for 10 years or more without any reason at all cannot be with the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an 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 by this Court in the exercise of its extraordinary jurisdiction.

I respectfully agree with the view taken in these decisions cited above. Taking into consideration the fact that the Petitioner has been suffering mental agony in view of the protracted proceedings from 1980 onwards, I am also of the view that the Petitioner-accused should be dealt with leniently by holding that the substantial sentence of imprisonment already undergone by him is sufficient, while maintaining the fine and the default sentence.

In the result, the revision is allowed in part. While confirming the conviction of the accused-Petitioner, the sentence awarded to the Petitioner is modified in that the period of substantial sentence already undergone by him is held sufficient, but, at the same time maintaining the fine and the default sentence. If the fine has not been recovered earlier, the trial Court shall recover the same in accordance with law. If the fine has been paid, the Petitioner-accused will be released forthwith.