Jagdish Kumar vs State of Punjab

B.S. Yadav, J.

The petitioner was convicted under section 16(1)(a) (i) of the Prevention of Food Adulteration Act (for short the Act), by the Additional Chief Judicial Magistrate, Amritsar and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/. The petitioner filed appeal, which was heard by the learned Sessions Judge, Amritsar but met with no success.

The case against the petitioner is that on 2.4.1979. Dr. Kirpal Singh (PW1) who was invested with the powers of Food Inspector, visited the shop of the petitioner situated in Green Avenue, Amritsar. He was accompanied by Dr. S.C. Saini (PW2). The petitioner was found in possession of 5 Kgs. of grinded red chillies for sale. After observing the necessary formalities prescribed under the Act and the Rules framed thereunder, Dr. Kirpal Singh purchased 450 grams of grinded red chillies from the petitioner for analysis. He divided the sample into 3 equal parts and put each part into one dry and clean bottle. He converted the bottles into scaled packets in accordance with the prescribed procedure. He sent one bottle, along with memorandum in form VII, having the impression of the seal used, to the Public Analyst. One copy of the said memorandum, with the impression. of the seal used, was sent separately to the Public Analyst. The remaining two bottles were deposited with the Local Health Authority.

The sample reached the Public Analyst on 341979. He analysed the same on 741979. He opined that the contents of the sample were unfit for human consumption as it contained coaltar dye, two dead insects and thirteen small sized Jalas. His report in this respect is ExPD. On receipt of the report of the Public Analyst, Dr. Kirpal Singh launched prosecution against the petitioner. The Local Authority also sent intimation to the petitioner about the launching of the prosecution vide letter dated 1971979, copy of which is Ex. PF. A copy of the report of the Public Analyst was also sent along with the letter.

The prosecution story has been supported by Dr. Kirpal Singh (PW1) and Dr. S.C. Saini (PW2). CW1 Balbir Singh, clerk of the Office of Local Health Authority was examined to prove that letter Ex. PF.

At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution allegations. In his defence, he examined DW1 Uttam Singh who merely stated that the petitioner also sold dyes in his shop.

The learned counsel for the petitioner argued that in the present case the Food Inspector violated section 10(7) of the Act, inasmuch as he did not call. one or more persons to be present at the time he took the sample. In support of his contention, he has cited Ramesh Chander v. The State of Punjab, 1983(1) Recent Criminal Reports 208 : 1983 (2) C.L.R. 30 . In that case, the Food Inspector, when he took the sample from the petitioner, was only accompanied by a departmental colleague, i. e. another doctor In that case, this Court had remarked :

"It is urged that there was total by pass of compliance of section 10(7) of the aforesaid Act. The said provision makes it incumbent on the Food Inspector exercising powers as authorised therein to call one or more persons to be present at the time when such action is taken and get his or their signatures. That such provision of section 10(7) is directory. has been noticed by a Division Bench of this Court in State of Punjab v. Kashmir Singh, 1980 Cri. LJ. 334, but at the same time it has been held that the Food Inspector cannot give a complete goby to those provisions. The Bench ruled that he must make a sincere effort to comply with the provisions of section 10(7) and only when the Court is convinced of the sincerity of the effort made by Food Inspector to join independent witnesses while taking the sample from the accused that the conviction can be based on the testimony of the Food Inspector alone. The Bench further went on to rule that when absolutely no effort was made by the Food Inspector to comply with the aforesaid provision, the conviction of the accused could not be based on the testimony of the Food Inspector alone.

In the instant case, on going through the statement of Dr. A.S. Dhir, it is plain that he did not make any effort of the kind whatsoever. His taking a departmental colleague along with him to witness the taking of sample would not improve matters. Effort had to be made to call some one from the neighbourhood and a statement in that regard should have found mention in the testimony of the Food Inspector. There is not even a trace of it either in his examination in chief or cross examination. Thus the conviction of the petitioner cannot be sustained for completely ignoring section 10(7) or the aforesaid Act."

However, in a later judgment Onkar Chand v. The State of Punjab, (1984(1) Recent Criminal Reports 149) : 1984(1) F.A.C. 173 this Court remarked :

"The first point raised by the learned counsel for the petitioner was that in this case. the Food Inspector made no attempt to join any independent witness from the locality and therefore. the provisions of Section 10(7) of the Act wore not complied with and therefore. had been prejudiced. Section 10(7) of the Act provides that when the Food Inspector takes action under clause (a) of Subsection (2); Subsection (4) or Subsection (6), he shall call one or more persons to be present This would mean that when a sample is taken by a Food Inspector at least one or more persons have to be called by him as a witness. This provision has been interpreted to mean that one or two independent witnesses should be called by the Food Inspector when he takes the sample. In this case, the Food Inspector purchased the sample of Haldi for analysis in the presence of Dr. M. K. Bhalla. There was, however, no effort on the part of the Food Inspector to particularly join any witness from the locality in which the sample was taken But it cannot at all be said that Dr. Bhalla was unreliable witness. He was a man of status and was not in any manner interested in making out a false case against the petitioner. The Food Inspector Dr. Gurdarshan Singh Moonga is no doubt a colleague of Dr. Bhalla, but it cannot at all be said that the latter was under any kind of influence of a Food Inspector. It cannot, therefore, be said that section 10(7) of the Act has been breached. In this view I am fortified by Division Bench decision of this Court in State of Haryana v. Ram Sahai, Criminal Appeal No. 654 of 1977, decided on 2781979."

I respectfully follow the principle laid down in Onkar Chand''s case (supra) which is based upon a Division Bench judgment of this Court. The presence of a witness at the time of taking the sample has been introduced in the Act, so that the person from whom the sample is to be taken, is not harassed. When two respectable persons of the status of doctors visit the premises of a seller in articles of food. it can be presumed that they would act in accordance with the provisions of the Act and would not commit any illegal act. The Food Inspector appointed as such, may be interested in the success of the prosecution, but a doctor, who has merely been invested with the additional duties of Food Inspector, can hardly the interested in the success of the case. The Supreme Court has remarked in Babu Lal Hargovindas v. The State of Gujarat, 1971 (1) SCC 767 that the Food Inspector cannot be said to be an accomplice, nor is he similar to an attesting witness to a will. It was further remarked that the evidence of the Food Inspector, if believed, can be relied upon that the samples were taken as required by law.

The learned counsel for the petitioner has also placed reliance upon Shri Ram Lubhaya v. Municipal Corporation of Delhi and another, (1974)4 SCC 491 wherein it was remarked :

"We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking act under any of the provisions mentioned in the subsection, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the nonpresence of one or wore independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to call one or more persons to be present when he takes action. 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 or its obligation to cite independent witness. In Babu Lal Hargovindas v. State of Gujarat, 1971 Supp. Court Cases (Cri) 337, it was held by his Court after noticing that Section 10(7) was amended in 1964, that noncompliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice 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."

There can be no dispute with the above proposition. However, as noticed earlier, in the present case, Dr. Kirpal Singh had taken respectable independent person with him when he visited the premises of the petitioner. By no stretch of imagination, it can be said that Dr. Saini (PW2) was under any influence of Dr. Kirpal Singh. Hence, it is held that there has been no violation of section 10(7) of the Act.

The learned counsel for the petitioner has argued that mould growth in the grinned chillies can be due to delayed analysis by the Public Analyst. He also placed, reliance upon the Statements of Dr. Kirpal Singh (PW1) and Dr. Saini (PW2) who have stated that with naked eye they did not see any insect or Jala in the sample. In the present case, there has been no delay in the analysis. As noticed earlier, the sample was taken on 241979, while it was analysed on 741979. The learned counsel for the petitioner has not been able to show that in such a short interval, there can be mould growth or the insects could breed.

The learned counsel for the petitioner relied upon Om Parkash v. The State of Punjab, 1981 C.L.R. 220. In that case, sample of Atta from a Dhaba was taken. It had remained unanalysed for about 24 days. On analysis it was found that the Atta had been infested with insects (Susri). On account of the delay in analysis, the accused was given, the benefit of doubt. Reliance was also placed upon Piara Lal v. The State of Punjab, 1980 PLR 481. In that case also sample of wheatflour was purchased by the Food Inspector for analysis, but period of 4 weeks had elapsed since the taking of the sample and when it was examined. The Analyst found four living insects in the sample. In that case also the accused was acquitted after giving him the benefit of doubt. However, the above rulings have no application to the facts of the present case. As noticed earlier, in the present case the sample was analysed within 4 days of its reaching the Public Analyst.

The learned counsel for the petitioner next argued that only 2 dead insects were found in the sample and, therefore, it cannot be said that chilli powder was insect infested In support or his contention, he has relied upon new Delhi Municipal Committee v. Chaman Lal and the State, (1980) 82 P.L.R. (D), 106. In that case, 3 living insects were found in the article of food which was white gram. It was held that the article of food could not said to be insectinfested as it had not been attacked by the insects in swarms. As noticed earlier, the petitioner is not being prosecuted only on the ground that the sample of grinded chillies was adulterated as it was insectinfested. He is being prosecuted also on the ground that chilli powder was unfit for humanconsumption. As noticed earlier, the Public Analyst had mentioned three defects in the sample which make it unfit for humanconsumption. In addition to the presence or two insects in the sample it was found to contain red oilsoluble coaltar dye, as well as thirteen small sized Jalas. Thus, Chaman Lal''s case (supra) will be of no avail to the petitioner.

About the presence of the coaltar dye in the grinded chillies, the petitioner has taken a strange plea. The learned counsel for the petitioner pointed out that Dr. Kirpal Singh (PW1) and Dr. Saini (PW2) law stated that the sample was taken with a Karchhi lying in the shop of petitioner and from the defence evidence it is clear that the petitioner also sells dyes. He argued that none of the prosecution witnesses has stated that the Karchhi was cleaned before the sample of grinded chillies was taken. According to him, some dye might be sticking to the Karchhi and thus, it got mixed up with the grinded chillies. I am not going to give much importance to this argument. Dr. S.C. Saini (PW2) has stated that the sample was taken with the help of a big Karchhi which was lying at the shop of the petitioner. It is common knowledge that dyes are not taken out of the container with a big Karchhi. If the Karchhi was not clean the petitioner would have painted out that fact to the Food Inspector there and then would have asked him to clean it. The above argument has to be rejected.

The learned counsel for the petitioner next argued that in the present case. Rule 9A of the Rules, framed under the Act, has been violated, inasmuch as copy of the report of Public Analyst was not sent to him immediately after launching the prosecution. I am of the opinion that there is no violation of the said provision Though the complaint is dated 771979, but it was filed in Court on 16.7.1979 Letter, copy of which is Ex. P F. was sent to the petitioner, along with a copy of the report of the Public Analyst, on 19.7.1979. Thus, there has been compliance with the said rule which requires that after institution of the prosecution, the Local Health Authority shall immediately forward a copy of the report of the result of the analysis in form III by registered post or by hand, as may be proper, to the person from whom the sample of the article of food is taken by the Food Inspector.

The learned counsel for the petitioner next argued that there has been delay in the launching of the prosecution and therefore, his client has been prejudiced and he is entitled to acquittal. He has argued that though the Public Analyst had sent his report within a period of 45 days from the date of receipt of the sample for analysis, as required by Rule 7 (3) of the Rules but the complaint was filed in Court after more than two months. About the effect or delayed prosecution the learned counsel for the petitioner has placed reliance upon Mehar Chand v. The State, 1970 PLR 1009. In that case, the Food Inspector had seized the sample of milk. The prosecution was launched after 2 months and 2 days of the seizing of the sample. After taking into consideration the delay in the launching of the prosecution and the fact that it would take one more month in summoning the person from whom the sample was taken, it was held that there was every likelihood that during that period of 3 months, the sample of the article of food seized would undergo alteration in its chemical content and physical texture and the mature and content of the sample of the article of food recovered, may not be the same at the time when, under the orders of the trial Court, on an application made on behalf of the person from whom the recovery has been effected, it is sent to the Central Food Laboratory at Calcutta for analysis. as it existed when recovered from him. On those facts, it was held that the accused of that case was deprived of valuable right provided to him under section 13(2) of the Act, on account of the laxity or negligence on the part of the Food Inspector. That ruling has no relevance to the facts of the present case. In the instant case, the sample of grinded chillies was taken. In fact the petitioner is not entitled to raise this argument, because he never applied to the Court for sending the other part of the sample to the Public Analyst. Further, no authority has been cited to show that the grinded chillies would undergo chemical charges within a period of 2 or 3 months. Moreover in the present case coaltardye has also been found in the sample therefore, the delay, if any, in launching the prosecution is immaterial. Adulteration of food articles has attained such huge proportions that an accused cannot be allowed to escape the penalty imposed under the Act on flimsy grounds. In State of Punjab v. Devinder Kumar and others, 1984(2) RCR(Crl.) 21 (SC) : AIR 1983 SC 545 it was remarked :

"Adulteration and misbranding of food stuffs are rampant evils in our country. The Act is brought into force to check these social evils in the larger public interest for ensuring public welfare. In certain cases the Act provides for imposition of penalty without proof of a guilty mind. This shows the degree of concern exhibited by Parliament in so far as public health is concerned. While construing such food laws Courts should keep in view that the need for prevention of future injury is as important as punishing a wrong doer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be. before court in such cases, courts should not be too eager to quash on slender grounds the prosecution for offences, alleged to have been committed under this Act".

Hence, the above argument of the learned counsel for the petitioner is repelled.

For the foregoing reasons, I do not find any force in the present revision petition and dismiss the same.