Gopi Ram vs The State of Haryana

Surinder Singh, J.—Gopi Ram son of Hari Chand, a milk vendor was convicted by the Chief Judicial Magistrate, Faridabad, u/s 16(l)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and was sentenced to one year''s Rigorous Imprisonment and a fine of Rs. 1,000/-, in default to undergo further Rigorous Imprisonment for three months. The appeal filed by him against his aforesaid conviction and sentence was dismissed by the Additional Sessions Judge, Faridabad. The present Revision Petition has been filed by the Petitioner, with a view to impugn the verdict of these Courts.

The prosecution case is that on November 21, 1978, Dr. S. P. Tyagi (P. W. 2), along with Raj Kumar, Food Inspector (P. W. 3) and Jagan Nath Rakeja (P. W. 1), intercepted the Petitioner who was carrying a drum containing milk. After the usual formalities, a sample of the milk was obtained in three parts, which were duly sealed. One part of the sample was sent for analysis, while the remaining two parts were handed over to the Local Health Authority, as required under the Rules. The subsequent analysis of the sample by the Public Analyst, Haryana, revealed that the milk was sub-standard in regard to milk fats as well as milk solids not fats. The Petitioner was then prosecuted, with the result already indicated.

Mr. Ajai Lamba, learned Counsel appearing for the Petitioner has impugned the conviction of his client by submitting certain points which are noticed hereinafter. The learned Counsel has contended that the facts and circumstances of the case would show that the Petitioner had been prejudiced, as he had been deprived of his right to send another sample for analysis, as conferred by law. The Report of the Public Analyst, Exhibit PO, is dated December 14, 1978. u/s 13(2) of the Act, a copy of this Report is required to be forwarded to the person against whom proceedings are instituted with the purpose of informing him that if he so desires, he may apply to the Court concerned within ten days from the date of receipt of the copy of the Report to get the second sample of the article kept by the Local Health Authority analyses by the Central Food Laboratory. There is no gain saying that the right of re-examination of the sample as above, is a valuable right which was conferred by effecting an amendment in the Act in 1976. The question is whether a copy of the Report was actually forwarded to the Petitioner as required under the law, or not. In this behalf, the learned Counsel has referred to the testimony of Dr. J. S. Bhagat, Chief Medical Officer, (P.W 5) who deposed that the copy of the Report had been sent by Registered Post to the Petitioner along with the forwarding letter (Copy Exhibit PF). The original Postal Registration Receipt has been produced as Exhibit PG. The contention is that the copy of the Report was never received by the Petitioner and the evidence on the record does not establish that the same had been actually sent to the Petitioner at his correct address. There is force in this contention. In the forwarding letter Exhibit PF, the name and address of the Petitioner are indeed mentioned, but Postal Registration Receipt contains merely two words, i.e. "Gopi Ram Ballabgarh". This cannot be treated as descriptive of the address of the Petitioner. It may be that the Postal Registration official may have not written the full address on the Receipt, in accordance with the general practice but the onus lay on the prosecution to prove that the letter written to the Petitioner contained his full address. The witness referred to above, i.e. Dr. J. S. Bhagat (P.W. 5) admitted in his cross-examination that the work of sending the Registered Letter had been done by the Dealing Clerk who had, however, not been produced at the trial. The objection in this behalf is, therefore, quite tenable.

The Petitioner was served on March 21, 1979 for appearance in Court, i.e. exactly four months after the date on which the sample was taken. In the wake of the above finding, it is only after March 21, 1979 that the Petitioner could be expected to apply to the Court for sending the second sample for re-analysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned Counsel has placed reliance upon the observations of their their lordships of the Supreme Court in Municipal Corporation of Delhi Vs. Ghisa Ram, , as followed by this Court in Resham Singh v. The State of Punjab (1972) 74 P. L. R. 802., that even if a preservative is added in the sample of milk at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained only for about four months This period having already elapsed, it has been rightly argued that the Petitioner was deprived of his valuable right causing him serious prejudice.

Another submission made by the learned Counsel is that only official witnesses had been produced to substantiate the allegations and no non-official witness had been joined, as required under the Rules. One of the prosecution witnesses indeed deposed that the available persons had declined to associate themselves for the recovery, but this is merely a statement in the air and does not suffice to by-pass a safe guard provided in such matters. A discrepancy in the evidence of the prosecution witnesses, though of a minor nature was also pressed before the Court below to the effect that according to Raj Kumar (P. W. 3) sealing of the sample had been done with the help of cloth-piece, while Dr. Tyagi (P.W. 2) stated that they were sealed with paper. In any case, non-compliance of the mandatory provision, i.e. Section 13(2) of the Act, is discussed above is fatal to the case of the prosecution.

In the result, this Revision Petition is allowed, the conviction and sentence imposed upon the Petitioner are set aside and he is acquitted of the charge framed against him. The fine, if paid by the Petitioner shall be refunded.