Dhian Chand vs State of Haryana

M.L. Singhal, J.

Dhian Chandaccused (petitioner herein) was convicted under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 by the Chief Judicial Magistrate, Bhiwani vide order dated 12.9.1986 and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/ or in default of payment of fine to undergo further rigorous imprisonment for two months.

His appeal to the Court of Sessions failed. Learned Additional Sessions Judge, Bhiwani maintained the conviction and sentence vide order dated 18.11.1987 passed upon him by the Chief Judicial Magistrate vide the aforesaid order.

Having felt that he has been unjustly convicted and sentenced by the Courts below, Dhian Chand has come up in revision to this Court namely criminal revision No. 1216 of 1987.

Prosecution case in brief is that Chand Ram Grewal, Food Inspector authorised to seize samples of foodstuff from their vendors under the provisions of the Prevention of Food Adulteration Act, 1954 visited the shop of the accused on 17.3.1983 at about 4.00 PM. At that time Dr. M.M. Sharma, DMO was also with him. Sh. Sanjaytailor was also joined by the Food Inspector with him. Accused was found keeping powdered lal mirch in his shop in a tin (pipa) which weighed 12 kgs. It was meant for sale to the public. Food Inspector gave notice Ex.PA to the accused after disclosing to him that he was Food Inspector authorised to seize samples of foodstuff from their vendors and that he was there to seize sample of lal mirch powder (red chilly powder) from him. Notice Ex.PA was signed by the accused and attested by Dr. M.M Sharma, Sh. Chand Ram Grewal and Sanjay PWs. Food Inspector asked the accused to supply him 600 grams red chilly powder on receipt of necessary price from him. Accused supplied him 600 grams of chilly powder vide receipt Ex. PB on receipt of Rs. 7.20 from him. Receipt Ex.PB was signed by the accused and attested by the said PWs. Thereafter, Food Inspector divided that red chilly powder in three equal parts. He put each of those parts into three dry and clean bottles. He labelled, stoppered, securely fastened and then wrapped in strong thick paper each bottle which was secured by means of paper slip bearing code No. and signatures of the Local Health Authority. He wrapped around each bottle twine also. Each of the bottles was sealed with the seal of Dr. M.M. Sharma. On each paper slip signatures of accused were obtained. Paper slip was affixed from top to bottom on each bottle with gum. Signatures of the accused on the paper slip were obtained in a manner that half of the signatures appeared on the paper slip and rest half on the wrapper of the bottle. Each of the sealed bottles was put in a separate sealed packet. One sealed packet was sent to the Public Analyst through railway parcel on 18.3.1983 alongwith sealed memo in form No. VII. Two other sealed packets of sample were deposited in the office of the Local Health Authority with two copies of memo No. VII bearing seal impression. Memo Ex.PC was prepared at the spot in which all the proceedings taken at the spot were recorded. Public Analyst vide report Ex.PE fond the sample as containing one sharpedged iron piece, size of which was 2.2. c.m. length. 5 c.m. breadth and the weight of which was 0.107 gm. On receipt of the report of Public Analyst, a copy thereof was sent to the accused through registered post alongwith forwarding memo. Complaint was instituted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

On the conclusion of the trial, accused was convicted and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/ or in default of payment of fine to undergo further rigorous imprisonment for a period of two months by the Chief Judicial Magistrate, Bhiwani vide order dated 12.9.1996 under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

Appeal to the Court of Sessions failed. Learned Additional Sessions Judge, Bhiwani vide order dated 18.11.1987 dismissed the appeal.

Not satisfied with the order of Additional Sessions Judge, Bhiwani maintaining his conviction and sentence by the learned Chief Judicial Magistrate, he has come up in revision to this Court.

It has been argued by the learned counsel for the petitioner that lal mirch powder (red chilly powder) was not properly stirred and made homogeneous before the sample was drawn by the Food Inspector. Nonstirring of the sample gave rise to variation in ash insoluble in dilute HCl content. Suffice it to say Shri Chand Ram Food Inspector has stated that the accused supplied him 600 grams of red chilly powder after mixing it in tin. Dr. M.M. Sharma PW has also stated that the sample was purchased after thoroughly mixing the red chilly powder in the tin. Even otherwise also nonstirring of red chilly powder in the tin will not make any difference because the red chilly powder will be the same in the entire tin.

In the State of Punjab v. Jagan Nath, 1986(2) PLR 466 sample of milk was taken without stirring. Similarly, in the State of Haryana v. Rameshwar, 1987(1) PLR 108, sample of milk was taken without stirring. In Sham Sunder v. The State of Haryana, 1986(1) CLR 120 sample was that of Ajwain and there was no averment in the complaint made by the Food Inspector that Ajwain had been made homogeneous before the sample was taken, and the accused was given the benefit of doubt. In my opinion, the sample of lal mirch powder was not required to have been taken after the entire red chilly powder contained in the tin had been made homogeneous. It would bear repetition that red chilly powder was the same in the tin. It would not make any difference whether the sample was taken from the upper layer or from the bottom or it was taken from the side. Food Inspector has stated that the sample was taken after the entire chilly powder had been mixed in the tin. In State of Haryana v. Hukam Chand, 1984(1) Prevention of Food Adulteration Cases 250 it was laid down that the necessity of thoroughly mixing is of common knowledge so far as milk is concerned as the upper layer of the milk usually contains more of cream and this principle cannot be extended to the cases of adulterated Atta. In 1986(2) PLR 466 (supra) it was observed that there is no requirement either of the provisions of the Prevention of Food Adulteration Act or the rules framed thereunder that the contents of the foodstuff should be made homogeneous before the sample is drawn. It is only the rule of prudence, which requires that the contents of the foodstuff should be made homogeneous before the sample is drawn but this rule of prudence does not apply to each and every foodstuff. So this argument that the red chilly powder had not been homogenised before the sample was drawn cannot be given any weight. In 1986(1) CLR 120 (supra) the view taken does not appeal to reason. It cannot be adopted in the face of a Division Bench judgment reported as 1984(1) FAC 250 (supra). Ajwain is not required to be made homogeneous.

Director, Central Food Laboratory, Gaziabad whose report supersedes the report of the Public Analyst also found the sample of red chilly powder not conforming to the standard of chillies powder laid down in item A.05.05.01 of the Prevention of Food Adulteration Rules, 1955 inasmuch ash insoluble in dilute HCl was above the maximum prescribed limit and that the sample showed the presence of one dead insectalso.

It has been submitted that the presence of dead insect in red chilly powder does not make it adulterated. Director, Central Food Laboratory has nowhere said that red chilly powder was unfit for human consumption. It has been submitted that the Director has not found the red chilly powder insect infested. Suffice it to say presence of one dead insect will definitely make the red chilly powder unfit for human consumption and unwholesome.

It has been submitted by the learned counsel for the petitioner that there is no surprise that the insects bred in the sample because the sample was taken on 17.3.1983 while the same was analysed by the Director, Central Food Laboratory, Gaziabad on 10.6.1983. Suffice it to say on 10.6.1983 there is no moisture in the atmosphere because monsoon sets in afterwards. It is the entry of moisture that can give rise to insects in the sample. Sh. R. Krishna Rao DW.1 who analysed the sample has stated that in the case of red chilly powder the quality and the character will not be affected even for two years if the powder is not insect infested. The excess of moisture can also affect the quality of the powder. The insects cannot develop by themselves but if the sample or the bottle containing the sample contains the eggs then the insects can develop even in the sealed bottle of the sample. Shri S.K. Anand, Public Analyst DW.2 has stated that if eggs are present in the sample of lal mirch then the insects can develop into the sealed bottle if the proper temperature and humidity is available. If the sample does not contain any egg then the eggs or insects cannot develop into the sealed bottle. So, presence of one insect in the sample of red chilli powder cannot be attributed to delayed analysis of the sample.

Faced with this position, learned counsel for the petitioner has submitted that the petitioner had been facing the agony of criminal trial since the year 1983 and we are now in the year 1998. This case has been hanging like a damoclean sword on his head for the last 15 years. It has been submitted that the learned Magistrate took three years in concluding the trial. Learned Additional Sessions Judge took one year in disposing of the appeal. He thus faced the vagaries of criminal trial for 4 years in the courts below. He has been facing the vagaries of this trial for the last 10 years in this Court.

It has been submitted that right to speedy trial is the fundamental right of the accused. Article 21 of the Constitution provides that no person shall be deprived of his right or personal liberty except according to the procedure established by law. The scope of this article has been considered which covers the case of the right to have a speedy trial. A speedy trial is said to be the essential ingredient of reasonable, fair and just procedure guaranteed under the Constitution. Accused faced threat of conviction for more than 3 years in the Court of learned Magistrate. He was convicted. Thereafter, he filed appeal. He had to wait for more than a year till the appeal was dismissed on 18.11.1987. Thereafter he filed this revision. He has thus been facing the ordeal of litigation for the last about 12 years. He was under the agony and pressure of conviction and sentence for all these 12 years. In support of this submission that this Court should deal with the petitioner leniently in the matter of sentence in view of the fact that ordeal of litigation has been hanging on his head for the last 15 years he drew my attention to Chander Bhan v. State of Haryana, 1996(1) Recent C.R. 125 where it has held that although minimum sentence to be imposed upon conviction is prescribed by 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. Similar view was taken in Sat Pal v. State of Haryana, 1998(1) Recent C.R. 75.

It is true that this fact can be taken into account in awarding lesser sentence than the minimum prescribed that the ordeal of this case has been hanging on his head like a damoclean sword for the last 15 years. In this case, therefore, I feel that the sentence imposed upon the petitioner should be reduced. Conviction is maintained but the sentence is reduced to rigorous imprisonment for 3 months. Sentence of fine together with the default clause shall remain. Subject to reduction in sentence, this revision fails and is dismissed.

Revision dismissed.