Jagdish Singh vs State of Punjab

B.S. Yadav, J.

The prosecution story in brief is that on 5.7.1978 PW2 Dr. Sham Lal Chalana, who in the relevant days, was invested with the powers of Food Inspector, accompanied by PW3 Dr. R.N. Singh, inspected the canteen of the petitioner situated at Qila Mubarak, Faridkot. He was found in possession of four kilograms of unindicated milk for sale. After observing the necessary formalities, PW2 Dr. Sham Lal Chalana purchased 660 ml of milk from the petitioner against payment of Rupee 1/60. He divided the sample milk into 3 equal parts and transferred the same into 3 dry and clean bottles. He also added 18 drops of formaline to each bottled. He complied with the necessary procedure about labelling and sealing of these bottles and sending one bottle to the Public Analyst. The Public Analyst vide his report Ex. PF, found the milk to be adulterated as if it was deficient in milk fat by 18 percent of minimum prescribed standard. Thereafter, a complaint was made in the Chief Judicial Magistrate, Faridkot for the prosecution of the petitioner.

The prosecution examined PW1 Walaiti Ram, PW2 Dr. Sham Lal Chalana and PW 3 Dr. R.N. Singh in support of its case. At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure and he denied the prosecution allegations. He pleaded that the sample was taken of cow''s milk from one Ravi Kumar who was incharge of the canteen, while he (i.e. the petitioner) was asked to sign as a witness. He further stated that in the days of occurrence, the rate of cow''s milk was Rs. 1.60 for 660 ml.

In his defence the petitioner examined DW 1 Jaswant Singh who has stated that earlier he was working as a peon in B.DO.''s office at Faridkot and there is a canteen where milk is not sold. He further stated that in 1978, Ravi Kumar was incharge of that canteen and the rate of cow''s milk in those days was Rs. 2.50 per kg. DW2 Niranjan Singh was examined to prove the rate of cow''s milk in the days of occurrence.

The learned trial Court found the petitioner guilty under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) and convicted him accordingly and sentenced him to undergo imprisonment for six months and pay a fine of Rs. 1000/. It was also ordered that in default of payment of fine, the petitioner would further undergo rigorous imprisonment for 4 months.

The petitioner filed an appeal which was heard by the learned Additional Sessions Judge, Faridkot. He did not find any force in the appeal and dismissed the same. Feeling not satisfied, the petitioner has come to this Court in revision.

The learned counsel for the petitioner argued that in the present case, the provisions of section 10(7) of the Act were not complied with. The relevant provision reads as under :

"10. (1) A food inspector shall have power

(a) to taken samples of any article of food from

(i) any person selling such articles;

(ii) any person who in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him; and

(b) to send such sample for analysis to the public analyst for the local area within which such sample as been taken.

(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health.

(Explanation. For the purpose of subclause (iii) of clause (a), "consignee" does not include a person who purchases or receives any article of food for his own consumption).

(7) Where the food inspector takes any action under clause (a) of sub section (1), subsection (2), subsection (4), or subsection (6), he shall, call one or more persons to present at the time when such action is taken and take his or their signatures."

According to the learned counsel, in the present case PW2 Food Inspector Dr. Sham Lal Chalana did not join any independent witness and the only witness joined by him was PW3 Dr. R.N. Singh, who was his colleague because the latter witness has stated that probably in those days he was also exercising powers of Food Inspector.

The learned counsel for the petitioner has also cited Raghbir Singh v. The State of Haryana, 1974 CLR 43, Mool Chand v. The State of Punjab, 1981 CLR 555, State v. Sadhu Singh, 1981(1) FAC 406 to show that the provisions of section 10(7) of the Act are mandatory and noncompliance thereof entitles the persons from whom sample has been taken to acquittal. There is no dispute with the above proposition. However, each case has to be decided on its own merits, and it will have to be seen, whether in a particular case an independent witness had been joined or not.

Before I proceed further, I am quote here the following passage from State of Punjab v. Devinder Kumar and others, 1984(2) RCR(Crl.) 21 (SC) : AIR 1983 SC 545 :

"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 guilty mind. This shows the degree of concern exhibited by Parliament in so far as public health is concerned. while construing such food laws Court 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 such court should not be too eager to quash on slender grounds the prosecutions for offences, alleged to have been committed under the Act."

Thus, according to the above observations of their Lordships of the Supreme Court, the court should be chary in acquitting an accused on slender grounds. In the present case, Dr. R.N. Singh was accompanying the Food Inspector when the latter visited the canteen of the accused for taking sample. Though the former witness stated the probably he was also exercising the power of Food Inspector under the Act, but that is not a definite statement. The accused has not produced any evidence to show that Dr. R.N. Singh was infact invested with such powers during the relevant days. Even if for arguments'' sake it is held that Dr. R.N. Singh had been appointed as Food Inspector for some other area, it does not mean that he was of such low moral character that by such appointment he lost all scruples and would be the line of PW2 Dr. Sham Lal Chalana, Food Inspector on all points. Dr. R.N. Singh was a responsible Government doctor and was not interested in either party. It is also to be noted that to inspire confidence in the proceedings the Government had appointed Doctors as Food Inspectors under the Act. When examined under section 313 of the Code of Criminal Procedure, the following question was put to the accused :

"Q. That Public Analyst''s report Ex. PF shows that sample was deficient in milk fat by 18% of the minimum prescribed standard. What have you to say ?"

To the above question, the accused gave the following answer :

"Ans. It is correct. The sample was taken of cow''s milk from Ravi Kumar who was incharge of the canteen, while I was asked to sign as a witness.

This shows that the accused does not deny the fact that the sample was taken on that day by Dr. Sham La Chalana. His only contention is that the sample was taken from one Ravi Kumar who was incharge of the canteen while he himself was asked to sign a witness.

Hence, in the light of the above discussion, it will have to beheld that Dr. R.N. Singh was an independent witness and there has been no violation of Section 10(7) of the Act.

The learned counsel for the accused argued that it is in the prosecution evidence that a few customers were sitting in the canteen of the accused, but, surprisingly enough, the Food Inspector did not join any one of these persons to witness the proceedings. When one independent witness was already with the Food Inspector, he was not required to join any other witness in the proceedings. Moreover, when minimum sentence is prescribed for a certain offence, the accused always tries to win over a witness unless he is scrupulous and of high moral character. Therefore, in the present case, the Food Inspector might not have joined those customers of the accused, because they would have been interested in him (i.e. the accused).

The learned counsel for the accused next argued that the accused had sold cow''s milk. However, it is in the statements of Dr. Sham Lal Chalana and Dr. R.N. Singh that the milk was unindicated. Therefore, the Note (i) appended to Serial No. A 11.01.03 in Appendix B of the Prevention of Food Adulteration Rules, 1955 will be applicable. That Note runs as under :

"When milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply."

Ex. PC, PD and PE are the documents which were prepared at the time of taking sample. In all these documents, the food of which sample was taken was prescribed as ''unspecified boiled milk". Both PW2 Dr. Sham Lal Chalana and PW 3 Dr. R.N. Singh have stated that the milk was unspecified. It was not suggested to the former witness that the accused had declared at that time that it was cow''s milk. PW 3 Dr. R.N. Singh has stated that he did not remember, whether the person selling the milk had told verbally that the utensil contained cow''s milk. This point has been dealt with by a Division Bench of this Court in Criminal Appeal No. 392DBA/1981, State of Haryana v. Jagdish, decided on June 20, 1983 : 1983(2) Recent Criminal Reports 210. It was remarked in that case :

"Rule 42(c) of the Rules clearly lays down that the caps of milk bottles should indicated the nature of the milk contained in them. No doubt, the aforesaid rule relates to the nature of indication to be given on the caps of milkbottles, but if the milk is contained in some other container, such container should clearly indicated either in full or by abreviation the nature of milk contained in it and that appears to be the intention of the Legislature while enactinig Rule 42(C) of the Rules and providing a note to serial Number, given above, of the Appendix B. From a reading of this Note, it is clear that when milk is offerd for sale, the duty of the vendor is to give indication of its class, because if no such indication is given, the standard of buffalo''s milk apply."

In that case also, sample of unindicated milk was taken and it was held that as a person from whom the sample was taken had sold unindicated milk, the standards for buffalo milk would be taken into consideration for determining the whether the milk was adulterated, or not. It is not in dispute that if the standards prescribed for buffalo''s milk are taken ton consideration, the sample of milk taken from the accused was deficient in milk fat by 18 percent of the minimum prescribed standard vide report Ex. PF and the milk will have to be held adulterated.

The learned counsel for the accused next argued that the milk was kept for preparing tea anc not for sale. There is no evidence that the accused did not sell milk. Even if it is held that the milk was kept for preparing tea, even then the accused will have to be held guilty of keeping in possession adulterated milk for preparatin of tea. This controversy has been set at rest by Explanation to section 7 of the Act which reads as under :

"For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom any article of food for sale."

This point had also arisen in Jagdish''s case (supra). In that case, the sample was taken from a teavendor. After discussing the law and the authorities, it was held in that case that it was futile to argue that the milk was kept only for preparation of tea and not for sale.

The learned counsel for the accused next argued that the accused should be released on probation as he is a first offender and 21 years old. It appears that section 20A which was appended to the Act in 1976 has not come to the notice of the learned counsel. That sction reads as follows :

"20AA. Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1947), shall apply to a person convicted of an offence under this Act, unless that person is under eighteen years of age.

On 6.12.79 when the charge was framed against the accused, he gave his particulars as follows :

"Jagdish Singh s/o Gurbachan Singh, s/o unknown, aged 21 years Labourer, r/o Faridkot."

Thus, the accused cannot be released on probation.

The learned counsel for the appellant, lastly argued that the accused is a young boy and he be dealt with leniently. Section 16 of the Act lays down that the person who commits any of the offences mentioned in this section, shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to three years and with fine which shall not be less than Rs. 1,000/. In the present case, the accused has already been awarded the minimum setence as provided by the above section. It cannot be reduced any further. The case of the accused does not fall under Proviso. I apprended to the said section, because as held in the above Division Bench judgment of this Court, milk is not a primary food.

For the foregoing reasons, I do not find any force in the present revision petition. The same is dismissed.