Kali Ram vs State of Haryana

S.S. Dewan, J.

By this petition, Kali Ram seeks to have the judgment of the Additional Sessions Judge, Kurukshetra, in Criminal Appeal No. 35 of 1979, confirming the judgment of the Chief Judicial Magistrate, Kurukshetra, in Criminal Case No. 276 of 1979 convicting the petitioner for committing the offence punishable under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentencing him to rigorous imprisonment for 6 months with Rs. 1000/ as fine and in the alternative further rigorous imprisonment for 3 months quashed.

On 30.4.1975 at about 830 a.m. while the Food Inspector Brij Lal alongwith Dr. P.D. Chaudhary was present near Mukand Bhawan Ladwa, the accused petitioner came on a cycle with a drum containing cows'' milk for sale. After disclosing his identity and after serving notice, Exhibit P.A., to the petitioner, the Food Inspector purchased 660 Mls. of cows'' milk on payment of Rs. 1.05 P., against receipt, Exhibit P.B. After completing the necessary formalities, one of the sealed sample bottles was given to the accused while the remaining 2 bottles were deposited in the C.M.O.''s. office at Kurukshetra. One of these bottles was sent to the Public Analyst, who vide his report, Exhibit P.D., found the sample adulterated as its milk fat was deficient by 10% and milk solids not fat by 23% of the minimum prescribed standard. On receipt of the report of the Public Analyst, the complaint was filed for the prosecution of the petitioner .

To connect the accused with the crime, the prosecution examined Food Inspector Brij Lal, P.W.1 Dr. P.D. Chaudhry, P.W. 2 and Makhan Singh, P.W. 3. The petitioner denied the prosecution allegations and pleaded false complicity in the case. On hearing the parties, counsel and perusing the record, the trial Court convicted and sentenced the accused as indicated above. The appeal filed by the petitioner was unsuccessful.

Mr. Goel, who argued the case for the petitioner, vehemently argued that although evidence in respect of the taking of the samples from out of the milk carried by the petitioner and thereafter sent to the Public Analyst and the Director, Central Food laboratory alongwith their reports were produced in the trial Court but the report of the Director, Central Food Laboratory was not put to the petitioner at the time of his examination recorded under S. 313, Criminal Procedure Code and, therefore, the same could not be used against him for holding that he was found in possession of adulterated milk. The examination of the petitioner under S. 313, Criminal Procedure Code, reveals that he was only asked about the purchase of milk and the formalities observed by the Food Inspector at that time.

Section 313, Criminal Procedure Code, is based on the principle involved in the maxim audi alteram partem, namely, that no person should be condemned unheard and the accused should be heard, no merely on what is prima facie proved against him but on every circumstances appearing in evidence against him. The evidence with regard to the sending of the sample to the Director, Central Food Laboratory and his report was not put to the petitioner in his examination under S. 313, Criminal Procedure Code. No doubt the report of the Director, Central Food Laboratory revealed that the sample was adulterated but that incriminating evidence was not put to the petitioner while he was examined under S. 313, Criminal Procedure Code. In Machander v. The State of Hyderabad, AIR 1955 SC 792, it was held as under :

"Judge and Magistrates must realise the importance of the examination under Section 342. It is their duty to question the accused properly and fairly; bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires."

In the instant case, the petitioner was afforded no opportunity to explain his position with regard to the report of the Director, Central Food Laboratory. The circumstances appearing against the petitioner cannot be considered unless opportunity is given to him to explain the same in his examination recorded under Section 313, Criminal Procedure Code. The report of the Director, Central Food Laboratory was admittedly not put to the petitioner in his examination under Section 313, Criminal Procedure Code and, therefore, it is proved that the petitioner has been prejudiced.

The occurrence took place as far back as 1975 and the petitioner was sentenced by the trial court on 24.8.1979. His appeal was dismissed by the learned Additional Sessions Judge on 5.8.1980. This shows that since 1975 the burden of prosecution is hanging on the petitioner. He has been in worry and suspense for all the time. He also has remained in jail for some time. So taking all these facts into consideration, I do not find this case fit for remand. Thus the revision petition is accepted and the petitioner is acquitted of the charge. He is on bail and his bail bonds are discharged.