Dawasgir vs State of Haryana

Harmohinder Kaur Sandhu, J.—On 27-6-1985 the Government Food Inspector Shri Megh Nath Gupta intercepted the petitioner, at Gurthali road, opposite; General Hospital, Narwana, while he was in possession of about 20 kilograms of cows milk for public sale contained in two drums and was going on a cycle, in the presence of Dr. Naveen Sabarwal, Medical Officer and one Kitab Singh. The Food Inspector disclosed his identity and purchased 660 mili-litres of milk as sample for analysis, after making the contents of the drum homogeneous by stirring. The milk so purchased was divided into three equal parts and was put into three dry and clean bottles. The bottles were duly sealed after preservative was added. Two sample bottles were sent to Local Health Authority, Narwana and the third was sent to the Public Analyst, Haryana, Chandigarh, for analysis. The Public Analyst after analysing the contents of the sample found that it was adultered being deficient in milk fat at 5% and milk solids not fat by 35% of the minimum prescribed standard. Copy of the report was served on the petitioner and a complaint was filed for his prosecution.

The petitioner was tried for an offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. The prosecution examined the Government Food Inspector as PW1, Dr. Naveen Sabarwal PW2 and Bahadur Singh Clerk, Local Health Authority Narwana PW3.

In his statement u/s 313 Cr.P.C. the contention of the petitioner was that he did not sell milk and he was falsely involved in the case. On the day when he was intercepted he was carrying only 4-5 kilograms of milk for one Partap Chand which he had brought from Jeevan, a resident of village Dallo. In his defence he examined Jeevan as DW1 who deposed that the petitioner was a labourer and was not a milk seller. He was carrying milk for Partap Chand, resident of Narwana which was supplied by him.

After hearing the counsel for the parties and perusing the record the learned trial Court found that the charge against the petitioner was proved. He thus, convicted him for the offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. Aggrieved by this judgment dated 26-5-1986 rendered by Sub Divisional Judicial Magistrate, Narwana, the petitioner preferred an appeal. The learned Appellate Court affirmed the judgment of the trial court and dismissed the appeal, which led the petitioner to file the present revision petition.

I have heard the learned Counsel for the parties.

It was urged on behalf of the petitioner that before taking the sample, the milk was not stirred and made homegeneous as this fact was not mentioned in the complaint as well as in any other document prepared at the spot. Although the witnesses deposed that the milk was made homogeneous in the container and then sample was taken, these statements were an after-thought. As the milk was not properly mixed and its contents were not made uniform so the analysis did not show the correct result. This contention of the learned Counsel is belied by the documents placed on record. Both the Government Food Inspector as well as Dr. Naveen Sabarwal deposed that milk was properly mixed in the container and then only the sample was taken and this fact also finds mention in the complaint as well as the spot memo. In the complaint it was stated that 660 mili-litres of cows milk was purchased after mixing the whole contents properly and making them uniform for analysis. A similar recital is found in the spot memo Ex.PC which is duly thumb marked by the petitioner. So the submission made by the learned Counsel for the petitioner is without merit.

It was next urged on behalf of the petitioner that report of the Public Analyst was not specifically put to the petitioner at the time when his statement was recorded u/s 313 Cr.P.C. which resulted in grave prejudice to him and the petitioner deserved acquittal on that score alone. This argument is again without any substance. A perusal of the statement of the petitioner shows that he was specifically told that vide report Ex.PD the milk fat contents were found 3.8% and milk solids not fat 5.5% and thus the sample was deficient in milk fat contents by 5% of milk solids not fat to the extent of 35% of the minimum prescribed standard. In fact the whole of the contents of the report of Public Anylst were put to the petitioner and he was given an opportunity to explain the circumstances appearing against him, so it cannot be urged that any prejudice was caused to the petitioner on that ground.

It was lastly urged on behalf of the petitioner that the sample in the case was taken in the year 1985 and the petitioner has already faced a protrated trial and has undergone sufficient harassment and mental agony so he may be dealt with leniently and may not be sent to jail after the lapse of about 9 years. The present revision petition is pending since 1986 and this prolonged litigation is a ground for treating the petitioner in a lenient manner. To fortify his argument the learned Counsel placed reliance in Braham Dass v. State of Himachal Pradesh (1988) 2 RCR 184 : (1988) CriLJ 1816 (SC) and also on the case of Bachan Ram v. State of Punjab 1989 (2) RCR 151. In case of Braham Dass 1988 CriLJ 1816 (SC) (supra) the Apex Court observed (at p. 1818 of Cri LJ):

Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and the High Court while reserving the judgment of acquittal made by the appellate Judge has not made clear reference of 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 sentence, though ordinarily in an anti-social offence punishable under the Prevention of Food Adulteration Act the Court should take strict view of the such matter.

Keeping in view the above mentioned authority and the circumstances of the present case I am of the view that it will be in the interest of justice to take a lenient view in the matter of sentence and reduce the sentence of imprisonment already undergone.

As a result I partly allow this revision-petition and while maintaining the conviction of the petitioner reduce the sentence of imprisonment to one already undergone. The sentence of fine is maintained along with its default clause.