Kashmiri Lal vs State of Punjab

Harmohinder Kaur Sandhu, J.—This judgment will dispose of Criminal Revision No. 98 of 1986 Kashmiri Lal v. State of Punjab and Criminal Revision No. 461 of 1991 Court on its own motion v. Setia Trading Company.

The brief facts giving rise to these revision petitions are that on 27th July, 1987 Doctor Narinder Mohan, Block Health Officer, Kasuana in his capacity as Government Food Inspector inspected the shop of Kashmiri Lal petitioner at Kot Ise Khan in the presence of Doctor Harbans Lal Garg, Krishan Lal and Bal Krishan P.Ws. Kashmiri Lal was found having in his possession about 15 Kilograms of Darbar vanaspati ghee contained in a tin, which was for sale. The Food Inspector purchased 1.5 Kilograms of ghee for analysis which was duly sealed into three dry and clean bottles. One sealed bottle was sent to the Public Analyst Punjab who after analysis submitted his report Ex. PD to the effect that the sample contained free fatty acid as oleic acid 0.32% against minimum prescribed standard of 0.25% and was thus adulterated. On receipt of report of the Public Analyst, a complaint was filed against Kashmiri Lal for an offence u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (the Act for short). After trial the petitioner was held guilty and was sentenced to undergo Rigorous Imprisonment for six months and to pay fine of Rs. 1000/- vide judgment dated 22-12-1984 rendered by Judicial Magistrate 1st Class, Zira. Aggrieved by this judgment Kashmiri Lal preferred an appeal which was dismissed by Shri O.P. Goel, the learned Additional Sessions Judge, Ferozepur on 13th January, 1986. Revision Petition No. 98 referred above was filed by Kashmiri Lal assailing his conviction and sentence.

The petitioner alleged that the sample was seized by the Food Inspector from a sealed tin which was purchased by him from M/s. Setia Trading Company under a warranty Ex-DA and no offence was committed by him.

During the course of arguments, it was contended on behalf of the petitioner that since the tin of Darbar Vanaspati from which sample was taken by the Food Inspector was purchased by the petitioner from M/s. Setia Trading Company Kot Ise Khan vide bill No. 511 dated 16-7-1979 and the tin was sealed, the petitioner was protected u/s 19 of the Act. In view of this contention of the learned counsel, H.S. Rai, J. vide his order dated 10-7-1991 issued notice to M/s. Setia Trading Company, Kot Ise Khan the dealer and M/s. Oswal Vanaspati, Ludhiana, the manufacturer of the ghee to show cause as to why they should not be impleaded as accused in the case.

Mr. D.S. Sawhney, Advocate appeared for M/s. Oswal Vanaspati Mills, Ludhiana but M/s. Setia Trading Company could not be served as Ashok Kumar to whom the notice was sent on behalf of this firm had expired.

I have heard the learned counsel for-the parties and have perused the record.

The main contention of the learned counsel for the petitioner was that tin of vanaspati ghee was purchased by the petitioner from M/s. Setia Trading Company, Kot Ise Khan and the tin was lying sealed when the sample was taken. The Food Inspector purchased ghee for analysis in the presence of Bal Krishan and Krishan Lal. Bal Krishan who appeared as PW 3 stated that tin was sealed. To similar effect was the statement of Krishan Lal who was examined as DW 1. This contention of the learned counsel is not valid. It was dealt with by both the Courts below in detail. Bal Krishan PW was declared as a hostile witness and Krishan Lal was also helping Kashmiri Lal since he was given up by the prosecution and he appeared to support the defence version. When the sample was taken, a memo was prepared which was duly attested by both these witnesses. It was mentioned therein that the tin contained about 15 Kilograms of ghee and it was no where mentioned that the tin was sealed. The witness did not raise any objection at that time. So their testimony was rightly discarded by the Courts below.

It was urged on behalf of the petitioner that the sample in this case was analysed by the Public Analyst after a lapse of about one month and the only defect found in the sample was that the free fatty acid content exceeded the prescribed maximum limit and that could be due to moisture, air and exposure to light, as also due to some other factors. The conviction of the petitioner, therefore, could not be upheld. In support of his contention, he placed reliance on the case of Nagar Swasthya Adhikari, Nagar Mahapalika Agra v. Kanhaiya Lal (1979) 1 FAC 257 . In this case sample of ghee was taken and the Public Analyst who analysed the sample after 20 days found that free fatty acid content exceeded the prescribed maximum limit of 3%. According to the Ghee Chemist produced on behalf of the accused oleic acid increased due to moisture, air and exposure to light and the increase in the content of the oleic acide might have been due to the delay in the examination of the sample by the Public Analyst. No attempt was made on behalf of the prosecution to prove that the excess in the oleic acid content in the sample in question could not have been the result of moisture content of the sample and the delay in the examination of the sample by the public analyst. It was held that finding of acquittal recorded by the trial Court could not be characterised to be unreasonable one.

In the case of Ram Narain v. The State (1978) 1 FAC 30 sample of til oil was found adulterated due to presence 3.2% free fatty acid in excess and there was delay of more than two months in analysis. The prosecution failed to establish that the deterioration in the quality did not take place during the period of over two months when the sample was lying with the Public Analyst. it was held that a serious prejudice had been caused to the petitioner in view of the long delay in instituting the prosecution. Conviction and sentence of the petitioner was thus set aside.

From the above mentioned authorities, it is evident that ghee if it is kept for long time does often deterioate due to Chemical action which may be taking place in the presence of light and moisture. There is nothing on record to suggest that sample bottles were covered with black paper to avoid action of light on the sample. The sample was analysed after about a month of its seizure and no precaution was taken to avoid action of light and air on the sample. The case against the petitioner in these circumstances becomes doubtful and his conviction cannot be maintained.

It was argued on behalf of M/s. Oswal Vanaspati Mills Ludhiana that there was nothing on record to show that the sample of ghee was purchased from a tin which was sealed and was properly stored and the petitioner sold it in the same state in which he had purchased it. The petitioner was thus not entitled to the protection provided by Section 19 of the Act. And it will not be appropriate to order trial of the dealer or the manufacturer after about 14 years of the taking of the sample. I accept this contention of the learned counsel for the respondent and find that there is no justification for launching prosecution of the dealer or manufacturer after a period of 14 years, more so when the contention of the petitioner that the sample was taken from a sealed tin has already been repelled. To launch prosecution at such a belated stage is surely to result in causing harassment to the dealer and the manufacturer when there is hardly any chance of their conviction.

As a result of my above findings I accept Revision Petition filed by Kashmiri Lal, set aside his conviction and sentence and acquit him of the offence with which he was charged.

So far as Criminal Revision No. 461 of 1991 is concerned, show cause notice issued to M/s. Setia Trading Company and M/s. Oswal Vanaspati Mill is discharged.