Hari Chand vs State of Punjab

B.S. Yadav, J.

Hari Chand petitioner, was convicted under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) and sentenced to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 1000/ by the SubDivisional Magistrate, Muktsar. He unsuccessfully appealed to the learned Additional Sessions Judge, Faridkot. He has now filed this revision petition.

The prosecution story in brief is that on 30th August, 1980 at about 9.30 a.m. PW1 Dr. Tirath Goel, who was posted as Medical Officer, Civil Dispensary, Faridkot, and was invested with the powers of a Food Inspector, intercepted the petitioner in the presence of PW3 Dr. Ghansham Sharma, near the Civil Hospital, Muktsar. The petitioner was found carrying cow milk. Dr. Tirath Goel disclosed his identity to the petitioner and purchased 660 mls. of cow milk from after stirring the contents of the drum. He divided the sample into three equal parts and separately put each part in one neat, clean and dry bottle. He added 18 drops of formaline in each bottle as preservative. The bottles were then stoppered, wrapped and levelled in the manner prescribed under the Act and Rules framed thereunder. Usual memos were also prepared. One sealed bottle was sent to the Public Analyst, Jallundar, in accordance with the Rules. The Public Analyst vide his report, Exhibit PF opined that the contents of the sample were deficient in milksolidsnotfat by 8 per cent of the minimum prescribed standard. Thereupon Dr. Tirath Goel filed complaint, Exhibit PG in court for prosecution of the petitioner.

The prosecution story has been supported by PW1 Dr. Tirath Goel and PW3 Dr. Ghansham Sharma, PW2 Parveen Kumar Clerk of the officer of the Civil Surgeon, Faridkot, was examined to prove that the copy of the report of the Public Analyst was sent to the petitioner.

The accused when examined under section 313, Criminal Procedure Code, stated that he was not a milkvendor nor the sample was taken from him. His plea was that on the day in question he had gone to the Civil Hospital to take some medicines and there his signatures were obtained by Dr. Tirath Goel on some papers.

The learned counsel for the petitioner argued that the Food Inspector, namely, PW1 Dr. Tirath Goel violated rule 10(7) of the Act which lays down that a Food Inspector shall call one or more persons to be present when he takes section action under clause (a) of subsection (1), subsection (2), subsection (4) and subsection (6) of the said section. Subsection (2) of section 10 authorities the Food Inspector to take sample of article of food. The above argument has no force for two reasons. The first reason is that PW1 Dr. Tirath Goel has stated that independent witnesses refused to become witnesses when he took the sample. In such circumstances the observations made by their lordships in Shri Ram Labhaya v. Municipal Corporation of Delhi and another, 1974 Supreme Court cases (Crl.) 527 will be applicable. It was remarked in that case :

"The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Ram Hargovindas v. State of Gujarat, 1971 SCC (Crl.) 337 it was held by this Court after noticing that the Section 10(7) was amended in 1964, that noncompliance with it would not vitiate the trial and since the Food Inspector was not in a position of an accompliance his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeeper may feel bound by fraternal ties but no Court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."

Therefore, it cannot be said that the Food Inspector intentionally gave a goby to the provisions contained under section 10(7) of the Act. Another thing to be noted is that the Food Inspector had associated PW3 Dr. Ghansham Sharma in the proceeIings. I am, therefore, doubtful if the proceedings of taking the sample in the present case from the petitioner are vitiated on the ground that no person from the locality had been "called" to be present at the time the sample was taken. The will of Dr. Ghansham Sharma was not dependent on that of Food Inspector. I am not going to believe that a respectable person like a doctor would to the line of another doctor merely because he is his colleague. It was held in Vidya Nand v. State of U.P. 1976 Crl. L.J. 1820 that a person whose will is not dependent on that of the Food Inspector is to be termed as an independent witness. Thus it cannot be said that there has not been sufficient compliance of section 10(7) of the Act.

The learned counsel fro the petitioner next argued that the statement of PW1 Dr. Tirath Goel should not be relied upon as in court he has stated that the petitioner was carrying two drums, one of them as empty and the milk was contained in only one drum, but in the spot memo Exhibit PD prepared by him it is mentioned that the petitioner was having 2Kgs. of cow milk contained in two drums for sale. It was further pointed out that in the same memo there is mention that one sealed bottle along with the price of the sample was given to the petitioner while, in fact, no sealed part of the sample was handed over to the petitioner. An elaborate procedure has been prescribed under the Rules for procuring the sample and sealing it in three parts. Therefore, discrepancy pointed out is immaterial for consideration. As far as the question of mention of the delivery of one sealed bottle to the petitioner, in Exhibit PD which is in a printed form, is concerned, it appears that the said memo relates to the period prior to the amendment of the Act and the Rules. It is not disputed that earlier one part of the sample was to be delivered to the person from whom the sample of food article was seized.

The learned counsel for the petitioner next argued that link evidence is missing. He referred to the statement of PW1 Dr. Tirath Goel who has stated that the sample was handed over to Sham Lal, Peon, who was accompanying him, for taking it to the Public Analyst but PW4 Sham Lal, Peon, could not state that which Food Inspector had delivered the sample to him on the day in question for taking it to the Laboratory. He also pointed out that PW4 Sham Lal has stated that on the night intervening 30th and 31st August, 1980, he had deposited the sample with Parveen Kumar Clerk in the Office of civil surgeon, Faridkot, but Parveen Kumar (PW2) has not stated that the sample was deposited with him at all. Merely because Sham Lal PW has forgotten the name of the Food Inspector, who delivered the sample to him for onward transmission to the Public Analyst, it cannot be said that the link evidence is missing. In fact, in such cases there is no necessity to examine the messenger who takes the sample to the Public Analyst. The report of the Public Analyst is admissible per se. Exhibit PF is the report of the Public Analyst received in the instant case and the relevant portion of its reads as follows :

"I, Swaran Singh, AIC Public Analyst for all local areas, in Punjab duly appointed under the provision of this Prevention of Food Adulteration Act. 1954, received on the 31st day of August, 1980 from Dr. Tirath Goel M.O.C.D. Faridkot a sample of cow''s Milk marked TRG 12/80 said to have been taken from Hari Chand s/o Man Singh on 30.8.1980 from analysis, properly sealed an fastened, and that I found the seal intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in condition it for analysis."

Thus the remarks of the Public Analyst contained in his report clearly show that the sample received by him had not been tampered with as the seals affixed on the container and the outer cover of the sample tallied with the specimen imprison of the seal separately sent by the Food Inspector. Here I am also quote State of Punjab v. Bhagwan Dass Jain, 1981 P.L.R. 115 (FB) wherein it was remarked :

"The Court has to presume that all official acts are carried out and done in a regular and lawful manner. In spite of that the legislature and the lawmaking body, in the cases governed by the Act and other similar laws, where the report of the Public Analyst, Chemical Examiner and other experts is per se tendered in evidence has provided safeguards, like the manner of sealing and despatch of the incriminating articles and also for crosschecking the identity of the articles seized and sealed. So long as the acts performed by the Food inspector and other officials are not shown to be motivated, nothing can be presumed in favour of the accused regarding the tempering or interference with the sample without any basis. If the accused wanted an inference to be drawn in his favour, then he has to create circumstances in support of that as interference with the sample or its substitution is a question of fact. Unless there is a basis for such an inference, the Court, simply on the argument on behalf of the accused cannot go to unreasonable limits to imagine imaginary possibilities of interference in the sample during transit to the Public Analyst, after it leaves the hand of the Food Inspector."

Thus the argument of the learned counsel for the petitioner that the link evidence is missing has to be ignored.

It was next argued on behalf of the petitioner that the report of the Public Analyst shows that fat contents of the sample were more than the prescribed standard and the deficiency was only milk solidsnotfat and this cold happen only if the sample had not been stirred by the Public Analyst. According to him, the prosecution has to prove that the Public Analyst had stirred the sample before analysing it. This argument also has no force. There is a presumption that official acts are performed in accordance with the Rules and procedure. I may also quote here Mewa Singh v. Union Territory, Chandigarh, 1982 Crl. L.J. 2134, wherein it was remarked :

"Mr. Harbans Singh, the learned counsel for the petitioner had attempted to argue that there is no evidence on record where the sample of milk was homogeneous before its analysis by the Public Analyst. It was argued that the report of the Public Analyst was silent on the point and consequently the result arrived at could not be implicitly accepted and the benefit thereof must necessarily go to the petitioner. Basic reliance in this context was placed on Sultan v. State of Haryana (1981) 2 FAC 116.

It is unnecessary to examine the aforesaid argument in any detail because it is concluded against the petitioner by the Division Bench judgment in State of Haryana v. Harpat Cr. A 571 of 1980 decided on the 3rd March, 1982. Therein on this aspect the identical contention raised has been repelled and Sultan''s case (19812 FAC 116) (Punj & Har) (supra) has been overruled."

Hence it is difficult to hold that the deficiency in milksolidsnotfat in the sample was due to any fault on the part of the Public Analyst,

Lastly the learned counsel for the petitioner argued that in the present case the examination of the petitioner under section 313, Criminal Procedure Code, was defective in as much as the contents of the report were not specifically put to the accused nor those contents formed the subject matter of the charge. In the charge the contents of the reports of the Public Analyst were not specially brought to the notice of the petitioner but it was incorporated therein that the sample was found adulterated by Public Analyst vide his report dated 29th September, 1980. In his examination under section 313, Criminal Procedure Code, also the attention of the petitioner was drawn to the fact that the sample sent to the Public Analyst was found to be adulterated because it did not conform to the prescribed standard. In answer to another question, the petitioner has admitted that he had received a copy of the report of the Public Analyst. Thus it is difficult to hold that as pointed attention of the petitioner was not drawn to the deficiency in milksolids notfat, his examination was defective.

Even if for arguments sake it is held that the examination of the petitioner, under section 313, Criminal Procedure Code, was defective, he cannot be acquitted on that sole ground. The accused has to show to the court that had the contents of the report of the Analyst been brought to his notice, he could have given plausible explanation. Even before me also it was not pointed out by the learned counsel for the petitioner that may prejudice has been caused to the petitioner in his defence by the defective examination under section 313, Criminal Procedure Code. I may quote here Shivaji Sahebrad Bobade and another v. State of Maharashtra, A.I.R. 1973 Supreme Court 2622 wherein it was remarked :

"It is trite law, nevertheless fundamental, that the prisoner''s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable examination of such circumstances, the court my assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regard compliance with Section 342 Cr.P.C. the omission has not been shown to have caused prejudice to the accused."

Reference can also be made to S. Harnam Singh v. The State (Delhi Adm.), A.I.R. 1976 SC 2140 wherein it was remarked :

"Section 342 of the Code of Criminal Procedure, 1898 casts a duty on the court to put, at any enquiry to trial, question to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary there from that each material circumstances appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudice the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under Section 537 of the Code."

It is to be noted that in the present case the petitioner has stated that no sample was taken from him. Therefore, the question of rendering any explanation by him about the deficiency in milksolids notfat found in the sample does not arise. I may quota here Ajit Kumar Chowdhry v. State of Bihar, A.I.R. 1972 Supreme Court 2058 wherein it was remarked :

"It is difficult to hold that merely because it was not put to the accused that the mirror was stolen, the appellant''s examination under Section 342, Code of Criminal Procedure was not adequate. It is no doubt that the courts must take care to put all the relevant material circumstances appearing in evidence to the accused so as to enable him to say in his defence what he wants in respect of the prosecution case and explain any circumstances appearing in evidence against him but at the same time, as observed in Ram Shankar Singh v. State of West Bengal (1962) Supp 1 SCR 49 = (A.I.R. 1962 SC 1239) every error or omission in complying with Section 342, Cr.P.C. does not necessarily vitiate the trial. Unless injustice results from an irregularity in complpiny with S. 342, interference on this ground would not be justified. In the present case when the appellant denied the recovery of railway mirror in answer to question No. 1 no prejudice or injustice can be considered to have been caused to him by the court''s failure to refer to the fact of the mirror being stolen."

Thus the defective examination of the petitioner in the present case is not fatal to the case.

Lastly the learned counsel for the petitioner argued that admittedly sample of milk was taken which is primary food and the accused is suffering the agony of trial for the last so many years as the sample was seized from him on 30th August, 1980. However, a Full Bench of this Court has held that milk is not a primary food within the meaning of Section 2 (xiia) of the Act. That judgment is reported as Budh Ram v. State of Haryana, 1985(1) Recent Criminal Reports 510; 1985 Crl. L. J. 311 . Therefore, the question of reduction of sentence of the petitioner does not arise in the present case.

For the foregoing reasons. I do not find any force in the present revision petition and dismiss the same. The petitioner to surrender to his bail bonds to undergo the unexpired sentence.