Deepak Kumar vs State of Haryana

H. K. Sandhu, J.

Deepak Kumar petitioner was tried for an offence under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act by Chief Judicial Magistrate, Ambala City. He was found guilty and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/. In default of payment of fine he was to further undergo rigorous imprisonment for one month. Aggrieved by this judgment dated 17.5.86 Deepak Kumar preferred an appeal which was dismissed by the learned Sessions Judge, Ambala. He has filed the present revision petition assailing his conviction and sentence

The brief facts of the case are that on 3 3.82 Shri C. L. Grover, Government Food Inspector, accompanied by Dr. H. R. Goshal, inspected the premises of the petitioner known as Gopi Sweet House, Ambala City, and found him in possession of five kilograms of ''paneer'' which was for public sale. After serving notice as required under the Act the Food Inspector purchased 600 grams of paneer for analysis. The paneer so purchased was divided into three equal parts and was sealed into three dry and clean bottles as per rules. One sealed bottle was sent to the Public Analyst Haryana, Chandigarh, through Ishar Dass peon and the other two bottles were deposited with. the Local Health Authority. The Public Analyst reported that the sample was. adulterated as it contained milk fat on dry weight basis 46.3% against the minimum prescribed standard of 50%. Prosecution was then launched which. ended in conviction of the petitioner as referred above.

At trial the contention of the petitioner was that the shop from which the Food Inspector purchased the sample did not belong to him. He also pleaded that the paneer of which sample was taken was prepared from goat milk for which no standard had been prescribed under the Act and he had thus, not committed any offence.

I have heard Mr. H. S. Gill, Senior Advocate, the learned counsel for the petitioner and Mr S. S. Gill, Assistant Advocate General Haryana, for the respondent and have. perused the record.

It was urged on behalf of the petitioner that link evidence in the case was missing since the affidavit of Ishar Dass Exh. P4 was not properly verified and could not be looked into. As per version of the prosecution one sealed bottle has sent to the Public Analyst through Ishar Dass peon whose affidavit had been tendered in evidence which was to the effect that the sample was deposited with the Public Analyst, with seal intact and it was never tampered with. But as this affidavit was not properly verified It was to be ignored and tinder those circumstances it could not be said that the sample was never tampered with. The learned counsel placed reliance on the case of State of Haryana v. Prithi, 1977 CLR 263 in support of his contention that when the affidavit is, not in conformity with the law and the rules, the same cannot be read in evidence and must be ruled out of consideration I find merit in the contention of the learned counsel. A perusal of the affidavit Ex. Py shows that it is neither properly verified nor properly,. attested. The deponent has not stated, as to which paragraph of the affidavit was correct to his knowledge and which para was correct to his belief. He has verified all the four paragraphs on the basis of information derived from the record of Chief Medical Officer, Ambala City, which according to him was correct to the best of his knowledge and belief. Similarly the attestation of the affidavit is also not according to the rules framed for that purpose. The officer who attested the affidavit did not append his full signatures nor the designation of the officer can be ascertained. When the affidavits are furnished as evidence in place of examination of the deponents those have to be in confirmity with the law and the rules and the same cannot be treated as idle ritual or a formality. Because of defective verification and attestation of affidavit Ex. Py the Same cannot be treated as proper evidence of the fact that the sample reached the office of Public Analyst in the same condition in, which it was handed over to Ishar Dass peon and was not tampered with at. any stage. When link evidence is missing it cannot be said that charge was fully brought home to the petitioner.

It was next urged on behalf of the petitioner that proper procedure had not been followed and mandatory provisions of the Act were not complied with by the trial Court. Under Section 16A of the Act the case had to be tried by following procedure for a summary trial, and if it appeared to the Magistrate that the nature of the case was such that a sentence of imprisonment for a term exceeding one year was likely to be passed than he was to record an order to that effect and was thereafter to follow the procedure meant for trial of warrant cam. In the present case no reasons were recorded for adopting the procedure of a warrant trial and since incorrect procedure was followed the trial stood vitiated.

This contention of the learned is borne out from the record. Before adopting the procedure of warrant trial, the trial Magistrate did not record any order to the effect that the nature of the case was such that a sentence of imprisonment for a period exceeding one year may have to be passed or that it was for any other reason. Undesirable to try the case summarily. in these circumstances conviction of the petitioner cannot be sustained

For the foregoing reasons I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him of the charge. Fine if deposited be refunded to him.