Dakshan Lal vs The State of Punjab

I.S. Tiwana, J.—Petitioner Darshan Lal was convicted by the Chief Judicial Magistrate, Faridkot, u/s 16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration act (hereinafter referred to as the Act) and was sentenced to nine months'' rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of which, to undergo further rigorous imprisonment for six months. His appeal against this conviction and sentence also failed in the Court of Sessions Judge, Faridkot.

In brief, the allegations against him are that on 11th December, 1973, at about l0.00 a.m. Dr. Yash Goel, Medical Officer, went to the canteen of Brijendra College, Faridkot, in the company of Dr R. L. Narang and after disclosing his identity, purchased 660 ml. of unspecified boiled milk from the Appellant against the payment of 80 paisa. Makhan Lal D W. 1 was also present at that time. The milk purchased was divided into three equal parts and was put in three dry and clean bottles. Sixteen drops of formaline were put in each of the bottle. The bottles were properly abelled, wrapped and sealed with the seal of Dr. Yash Goel One of the bottles was passed on 10 the Petitioner against his receipt Exhibit P.C.

The Public Analyst, vide his report Exhibit P.D. gave the following analysis:

Milk fat ... ... ... 28 %

Milk solid not fat ... ... ... 9.9 %

The trial of the Petitioner resulted in his conviction as indicated in the opening part of the judgment.

To assail the conviction of the Petitioner, bis learned Counsel, Shri D.R. Puri, has raised two contentions before me. Firstly, he submit that the delay, caused in proceeding against the Petitioner, has deprived him of a valuable right u/s 13(2) of the Act and secondly Dr. Goel did not take a representative sample of the milk and had only taken 160 ml, of boiled milk after removing the layer of fat from the top of the came.

So far as the first submission of the learned Counsel is concerned, he points out that the sample of milk was taken from the Petitioner on 11th December, 1973 and the complaint against him was filed on 18th January, 1974 yet he was served for the first time on 24th of July, 1975, that is, almost more than one year and seven months after taking of the sample. The learned Counsel further submits that no fault possibly can be laid on the Petitioner for this delayed service. He has taken me through the various orders recorded by the trial Court from 10th of February, 1974 onwards till the accused put in appearance on 24th July, 1975 and in almost all the orders it is recorded that the summons or the warrant, bailable or non bailable issued against the Petitioner had not been received back None of these orders indicates that either the accused was evading service or had in any other manner avoided the same. Rather it appears that the prosecuting agency was taking over everything very lightly. Otherwise I do not see any reason as to why the service could not be affected on the Petitioner for such a long time. In such circumstances, I feel the learned Counsel is well justified in arguing that had the Petitioner been joined in the proceedings within a reasonable time from launching of the prosecution against him, he could have availed of his right u/s 13(2) of the Act in disproving or contradicting the report of the Public Analyst by getting the sample of milk in his possession examined from the Central Laboratory at Calcutta. According to him the prosecution cannot be allowed to take advantage of its own laxity and deliberate inaction in not joining the Petitioner in these proceedings. He relics on a judgment of this Court in Mehar v. The State (1970) 72 P.L.R. 1009. Wherein it has been laid down as under:

that the provisions of Section 13(2) of the Act will be defeated by delayed commencement of proseution against an accused person, the laxity or negligence on the part of the Food Inspector and may be in some cases the deliberate practice of delaying the filing of complaint so as to render nugatory the provisions of Section 13(2) of the Act, the court should not countenance with favour that laxity, negligence or practice. Again the matter of making complaint promptly is a matter of public policy. The courts should see that there does not occur delay in riling complaints against the offender after the sample of food is taken.

Though it was a case where there was a delay of two months and two days in filing the complaint from the date of taking the sample of milk yet to my mind the delay in filing the complaint or filing it within a reasonable time and not making the accused aware of the same for a considerable time would not make any difference. Had the accused been served in good time he might have been able to take advantage of the provisions of Section 13(2) of the Act. Unless the prosecution can show that the fault lies on the part of the accused in not joining the proceedings without any good or sufficient cause, the prosecution has to suffer the consequence of the delay on its part.

Though I am conscious of the authoritative pronouncements of the Supreme Court in Ajit Prasad Ram Kishan Singh v. The State of Maharashtra 1572 C.A.R. 287 (S.C.), and in Babu Lal Hargovindas v. The State of Gujarat 1971 C.A.R. 445(S.C.),. laying down that before an accused can be heard to say that he has been deprived of his right u/s 13(3) of the Act, he should submit an application to the Magistrate after paying the proscribed fee for sending the sample available with him to the Director, Central Food Laboratory, for analysis, yet in none of these two cases the dalay was for such a long period that the accused could plausibly argue that because of the delay on the part of the prosecution no useful purpose was going to be served by sending the sample for analysis to the Director. In the instant case, I have not been made aware of any judgment or data laying down that even after a delay of more than one year and seven months. the sample of milk in possession of the accused could still be fit for analysis. Rather the learned Counsel for the Petitioner has brought to my notice an earlier judgment of their Lordships of Supreme Court in Municipal Corporation of Delhi Vs. Ghisa Ram, wherein their Lordships had accepted the export opinion of the doctor in this regard which was as under:

The opinion of one of the experts. Dr. Sat Parkash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a week, if kept at room temperturo, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand, if the sample is kept in a rafrigerator, it will proserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks if a preservative it added and the sample is kept at room temperature, the percentage of fat and non fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative the total period which may be available for making analysis without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the Respondent the Respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months This Court has laid down in Resham Singh v. The State of Punjab (1972) 74 P.L.R.802 as under:

that in so far as the process of decomposition is concerned, it would be safe to put milk and curd practically on the same footing so that if a sample of milk with the preservative added is allowed to remain at room temperature, it cannot be expected to ramain fit for analysis after the lapse of a period of four months.

Thus from the above pronouncements, it is obvious that in the instant case the prosecution did not proceed in a manner that the Petitioner could have availed of his valuable right granted to him by the provisions of Section 13(2) of the Act. The denial of this right to the Petitioner which almost is the result of deliberate conduct of the prosecution is that he has been seriously prajudiced in his defence and thus it is difficult to uphold his conviction. This is so, not withstanding the report Exhibit PB of the Public Analyst, which continues to be the evidence in the case.

The second contention of the learned Counsel for the Petitioner also appears to be well-founded. Whereas Dr. Goel as P.W. 1 has not deposed to the manner in which the sample was taken, Shri Makhan Lal(D.W. 1) has deposed that "Dr. Yash Goel took milk for analysis from a topic. The milk was taken from the topia after removing the malai aside. "This is a matter of common knowledge that after boiling, the fat in milk necessarily forms a layer on the top on it. In such a situation if the doctor took the sample of milk after removing the layer of fat or malai aside, it necessarily means that the sample was not representative sample. In some what similar circumstances this Court set aside the conviction of an accused in Criminal Revision No. 136 of 1962 (Attar Singh v. the State), decided on August 8, 1962.

In the light of the above discussion, I feel that the case against the Petitioner is not proved beyond reasonable doubt. Giving him the benefit of doubt, I allow the petition, and set aside his conviction and sentence The fine, if paid be refunded to him.