Kali Ram vs State of Madhya Pradesh

N.K. Gupta, J.—The applicant was convicted for the offence punishable u/s 7(1) read with 16(1)(1A)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "P.F. Act") vide judgment dated 6.10.1995 passed by the Additional Judicial Magistrate, Gadarwara in Criminal Case No. 29 of 1992 and sentenced for six months rigorous imprisonment with fine of Rs. 1000/-. In Criminal Appeal No. 64/1995 the learned Additional Sessions Judge, Gadarwara vide judgment dated 27.2.1999 dismissed the appeal. Being aggrieved with aforesaid judgments passed by both the Courts below the applicant has preferred the present revision. The prosecution''s case in short is that on 29.1.1991 the complainant K.P. Rai (PW1) was working as a Food Inspector for entire Narsinghpur District. At about 7.30 a.m in the morning he found that the applicant was selling milk at Bus Station Salechowka, District Narsinghpur. On enquiry the applicant informed that it was a mixed milk of cow and buffalo and therefore, the Food Inspector proposed to take a sample of that milk. Thereafter, milk was made homogeneous and 750 ml. of milk was purchased. It was divided into three parts and each part was added with 20 drops of formalin and thereafter, sealed by paper and paper slips of Local Health Authority, Narsinghpur. Various memos were prepared at the spot and one part of the sample was sent to the Public Analyst, Bhopal and remaining parts were deposited with the Local Health Authority, Narsinghpur. In the report Ex.P/12 the Public Analyst found that percentage of milk fat as well as solids not-fat was low than the prescribed standard and therefore, it was found that sample was adulterated. The Deputy Director Food and Drugs Administration, Narsinghpur had granted a sanction Ex.P/4 to prosecute vide order dated 17.11.1992. A notice u/s 13(2) of the P.F. Act was sent to the applicant which was received by him on 28.1.1992. Thereafter, a complaint was filed by the Food Inspector.

The applicant abjured his guilt. He took a plea that he was falsely implicated in the mater and no sample was taken from him. However, no defence evidence was adduced.

After considering the prosecution''s evidence the learned Chief Judicial Magistrate had convicted and sentenced the applicant as mentioned above whereas the appeal filed by the applicant was dismissed in toto.

I have heard the learned counsel for the parties.

The learned counsel for the applicant has submitted that the provisions of Section 13(2) of the P.F Act were not complied with and therefore, the applicant could not be convicted for the aforesaid offence. The learned counsel for the applicant has referred the order passed by the single Bench of this Court in the case of Ram Singh and Others Vs. State of Madhya Pradesh, in support of his contention. It is also submitted that the Public Analyst did not give its report within nine days as prescribed by the concerned rules and therefore, it is prayed that the applicant may be acquitted. In the alternate, it is submitted that the applicant has faced the trial, appeal and revision for last 20-21 years and therefore, he may not be sent to the jail again.

On the other hand the learned Panel Lawyer has submitted that no procedural mistake has been committed by the Food Inspector and sample was duly found adulterated. Under such circumstances, the revision filed by the applicant may be dismissed.

After considering the submissions made by learned counsel for the parties, if the evidence of the case is perused in the light of those submissions then it would be apparent that sample was taken on 29.9.1991 and notice u/s 13(2) of the P.F Act was received by the applicant on 28.1.1992 that was within the six months of taking the sample. It is observed in the case of Ram Singh (supra) that a complaint was initiated in the matter with delay of 7 days and therefore, it was presumed that the sample was deteriorated. In the present case, the applicant had received the notice within four months of the incident and the complaint was filed within four months and therefore, it cannot be said that the preservative added to the sample became ineffective. Hence due to variance of the facts, the law laid down by the single Bench of this Court in the case of Ram Singh (supra), cannot be applied in the present case.

The testimony of the Food Inspector Shri K.P. Rai (PW1) is believable and trustworthy. If independent witnesses were not examined before the trial Court then it makes no difference in the case. If independent witnesses are given up because they turned hostile then the testimony of the Food Inspector is to be considered. There was no enmity between the applicant and the Food Inspector. The applicant took a plea before the trial Court that no sample was taken from him but if no sample was taken from him then why the applicant would append his signatures on various memos. He has executed a receipt Ex.P/5 that he sold 750 mls. of milk to the Food Inspector in sum of Rs. 3.75. He was the person who informed that sample was of mixed milk of cow and buffalo. Under such circumstances, the testimony of the Food Inspector appears to be believable and the procedure adopted by him appears to be correct. It is proved that the applicant sold 750 mls. of milk to the Food Inspector and it was duly sent to the Public Analyst who found that percentage of milk fat i.e 3.0 % and solids not fat i.e 4.47 % were much low than the prescribed standard. In Article 11.01.11 of Appendix ''B'' in the P.F Rules standards of mixed milk is prescribed that percentage of milk fat should not be less than 4.5 % whereas percentage of solids not fat should not be less than 8.5 % and therefore, it is apparent that the applicant was selling adulterated milk.

The learned counsel for the applicant has also referred to the order passed by the Division Bench of the Punjab High Court in the case of "State Vs. Guni Lal Jeeva Shah" AIR 1964 Pun. 475 but due to factual difference that order is not applicable in the present case. So far as the time limit fixed in the rule for Public Analyst to analyze the various sample is concerned, it is not fatal if sample is not analyzed within that period. Public Analyst receives so many samples from the entire State and therefore, it is possible that some delay may be caused in analysis of such sample but, the main thing is that sample should be analyzed before it deteriorates. However, as per provision of Rule 7(3) of the P.F Rules the Public Analyst has 40 days time to analyze. In the present case he received the sample on 3.10.1991 and dispatched his report on 7.11.1991 i.e within 34 days and hence no delay was caused by the Public Analyst. When the complainant has complied with the mandatory provisions of Section 13(2) of the P.F Act then the small delay caused by the Public Analyst has no effect in the case.

So far as the sentence is concerned the minimum sentence is prescribed by the statute. In the present case it is found that the applicant was selling the adulterated milk to the public. The delay was caused in arguing this revision from the side of the applicant himself and therefore, he cannot take any advantage of delay of the mater. Under such circumstances, after considering the overt act of the applicant and his harassment for the period of trial, appeal and revision, the minimum sentence prescribed by the statute is awarded and therefore, I am of the view that no reduction in sentence may be granted.

On the basis of the aforesaid discussion the revision filed by the applicant is not acceptable and the concurrent findings given by both the Courts below cannot be disturbed. Hence the revision filed by the applicant is hereby dismissed. The conviction and sentence directed by the trial Court for offence punishable u/s 17(1) read with Section 16(1)(1A)(i) of the P.F Act is hereby maintained.

The applicant is on bail. He is directed to surrender before the trial Court without any delay so that remaining jail sentence may be executed. Copy of the order be sent to both the Courts below along with their records for information. The trial Court is directed to arrest the applicant and to send him for execution of remaining jail sentence without any delay.