Khazanchi Lal vs State of Haryana

V.S. Aggarwal, J.

The relevant facts which provoke the petitioner to file the present revision petition are that on 30.5.1984 at about 5.30 p.m., Government Food Inspector along with Dr. Santosh Aggarwal visited the Sweet Shop of the petitioner. The petitioner was found to be in possession of 30 kilograms of Laddoos. It had been prepared with vanaspati and had been kept in a plate for sale. One Anand Sarup was joined and the Food Inspector purchased a sample of 600 grams of laddoos against payment. The formalities were completed at the spot. One sample was sent to the Public Analyst. He made a report that sample was prepared in palm oil and not in vanaspati. On receipt of the said report, the Government Food Inspector filed the complaint before the concerned Magistrate on 25.7.1984. A copy of the report of the Public Analyst had been sent to the petitioner. While the trial was pending, the petitioner filed an application requesting the Court to get the second sample sent to the Director, Central Food Laboratory, Ghaziabad. The learned Chief Judicial Magistrate, Jind had sent the second sample to the Director, Central Food Laboratory, Ghaziabad. The report was received from the Central Food Laboratory, Ghaziabad. It was reported :

"(1) B.R. Reading of extracted fat at 40o C. : 46.0

(2) Melting point (capillary slip method) : of extracted fat : 35.2o C.

(3) Baudouin test on extracted fat : positive.

(4) Test for presence of mineral oil in extracted fact : Negative.

(5) Test for presence of oil soluble coal tar colour in extracted fat : Negative.

(6) Test for presence of water soluble coal tar colour in defatted residue : Positive. A nonpermitted water soluble coal tar colour identified as "Orange G" present.

OPINION : The sample showed presence of a nonpermitted water soluble coal tar colour."

After the trial the learned Chief Judicial Magistrate found the petitioner guilty of having been in possession of Laddoos for sale which showed presence of nonpermitted water soluble coal tar colour. The petitioner was convicted under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and was sentenced to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for four months. Aggrieved by the said judgment and the order of sentence, the petitioner preferred an appeal in the Court of Sessions. On 9.4.1987 the appeal was dismissed. Hence, the present revision petition.

Learned counsel for the petitioner at the outset argued that in the present case there has been a total violation of Rule 18 of the Prevention of Food Adulteration Rules, 1955. He urged that there is nothing to indicate that when the sample was sent to the Public Analyst, the memorandum and impression of seal was sent separately as envisaged under Rule 18 of the above said rules.

Rules 17 and 18 of the Prevention of Food Adulteration Rules are interlinked. They are the part of the same scheme. Rule 17 provides the manner of despatching containers of sample while Rule 18 provides memorandum and impression of seal to be sent separately. Rule 18 reads :

"18. Memorandum and impression of seal to be sent separately. A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day."

It is abundantly clear from persual of Rule 18 that a copy of the memorandum and specimen impressions of the seal used to seal the packet has to be sent in a sealed packet separately to the Public Analyst immediately but not later than the succeeding working day. The purpose of enacting the said rule is to ensure a fair trial. It is to guarantee to an accused that there is no tampering with the sample that is taken. It is based on the principle that no prejudice in any event should be caused to the accused. The purpose was explained in the decision of Food and Sanitary Inspector, Giddalur Panchayat v. Koppu Subbaratnam, 1984(1) Prevention of Food Adulteration Cases and in paragraph 20 the Andhra Pradesh High Court explained the said purpose to be :

"Rule 18 appears to give a guarantee to the accused assuring that after taking samples of food for analysis, the same article is to be sent to the Public Analyst for analysis. Its object appears to be that after taking the sample by the Food Inspector and before the sample actually reaches the analyst, there shall not be any tinkering or tampering with the articles of food taken for analysis in the presence of the accused. After the sample was taken in the presence of the accused and the panch witnesses and before the receipt of the report from the analyst and communication of a copy thereof to the accused, he will be completely under dark as to how the samples taken have been handled. The contents of the report were ascribed to be the evidence of facts stated therein. Therefore Rule 1 serves as a bridge generating a definite source of assurance to the accused as well as to the Court to verify that the sample taken from the accused is the same that was sent for analysis because the report of the analyst with regard to its contents concludes the report unless it is superseded by the report of the Director, Central Food Laboratory to which conclusiveness has been given. Thereby it seeks to serve a great public purpose of honest handling of the sample taken for analysis. If the procedure is not adhered to, the efficacy ascribed to the report of the analyst gets eroded and casts doubt on the prosecution case. If this object is kept in view, it admits of no doubt that the compliance with R. 18 shall be construed to be mandatory. Therefore the steps prescribed under Rule 18 are mandatory and shall have to be complied with and noncompliance thereof gets the entire prosecution vitiated."

Perusal of Rule 18 of the Prevention of Food Adulteration Rules, 1955 further indicates that the same are mandatory. The attention of the Court was drawn to the decision of this Court in the case of Guranditta Mal v. State of Haryana, 1982(1) Prevention of Food Adulteration Cases 292 wherein after holding that provisions of Rule 18 are mandatory and when there was infraction of mandatory rules, this Court had set aside the conviction and the order of sentence. To the same effect also is the subsequent decision of this Court in the case of Shashsi Mehta v. State of Punjab, 1986(1) Prevention of Food Adulteration Cases 155.

Can the petitioner take advantage of the said principles regarding which there is no dispute ? But in the peculiar facts of the present case indeed the petitioner cannot take advantage of the same. The order of conviction is based on the report of the Central Food Laboratory, Ghaziabad. At the bottom of the report Ex. PE it has been recorded :

"The seals on sample container were intact. The seals on cover of court on sample container as well as on outer cover of sample parcel were also intact and tallied with the specimen impression of seal given on copy of memorandum forwarded separately."

This shows that the seals on the sample were intact. They tallied with the specimen impressions of the seals given on copy of the memorandum which was forwarded separately. It is crystal clear from the said endorsement regarding which no controversy was raised before this Court that in terms of Rule 18 of memorandum and specimen impressions of the seal had been sent separately. The order of conviction is based on the report of Central Food Laboratory. In terms of section 13 of the Prevention of Food Adulteration Act, 1954, the certificate issued by the Director of Central Food Laboratory is to supersede the report given by the Public Analyst. Therefore, the trial court rightly relied upon the report of the Central Food Laboratory and pertaining to it as noticed above, there is no violation of Rule 18 therein. The said argument, therefore, is totally devoid of any merit.

In that event it was urged that the complaint was filed by the concerned Food Inspector and reliance was placed on the report of the Public Analyst. According to the learned counsel conviction could not be based on the report of the Central Food Laboratory because there was no basis in this regard in the complaint that was filed.

To appreciate the said contention reference may be made to the relevant facts in the first instance. In the complaint that was filed the reference was made to the certificate of Public Analyst, Haryana and it was mentioned that the sample was of palm oil and not of vanaspati. Paragraph 3 of the complaint reads :

"The certificate of the Public Analyst, Haryana, Chandigarh admissible under Section 13(5) of the Act is attached herewith which shows that the sample contains the sample as prepared in palm oil and not in vanaspati."

Subsequently, at the request of the petitioner the second sample was sent to the Central Food Laboratory by the Chief Judicial Magistrate and an extract of the report of the Central Food Laboratory has already been reproduced above. It was found that there was presence of water soluble coal tar colour in the Laddoos. During the course of trial, there was no amendment in the complaint that was made nor any fresh complaint was filed. The attention of the Court was being drawn to the decision of the Division Bench of this Court in the case of Sadhu Ram v. State of Haryana, 1989 HAP 485 (P&H). On the strength of this decision it was argued that the earlier decision of this Court in the case of Ravi Ghai v. State of Punjab, 1985(1) CLR 392 it could not be said that any particular point of law was decided. The Division Bench went on to consider that where the report of the Director, Central Food Laboratory was different from the Public Analyst, whether it is necessary to amend the complaint or not. In paragraph 2 it was held :

"It appears, however, that the point in issue emerged from a situation where adulteration in sample of the article of food in question, as found by the Director, Central Food Laboratory, was different in nature from that as per the report of the Public Analyst. As the report of the Director Central Food Laboratory supersedes that of the Public Analyst, it follows that if the prosecution of the person from whom the sample had been taken is to be launched on the basis of the report of the Director, Central Food Laboratory, then such report must form part of the complaint of the local Health Authority and this may be done either by amending the original complaint to incorporate therein the report of the Director Central Food Laboratory or by the withdrawal of the original complaint and the filing of a fresh complaint based upon such report of the Director, Central Food Laboratory. Whether such second complaint would attract the bar of double jeopardy in terms of Article 23 of the Constitution of India or Section 300 of the Code of Criminal Procedure, 1973, would of course be a matter to be decided on particular facts and circumstances of the case."

Perusal of the cited decision would reveal that the Division Bench of this Court did not record a finding that if the complaint is not amended, the trial would be vitiated. The facts of the present case clearly show that no prejudice has been caused to the petitioner. At his request during the course of the trial namely after the complaint had been filed, the second sample was sent to the Director, Central Food Laboratory. The charge that was framed against the petitioner specifically referred to the report of the Central Food Laboratory. The evidence was led pertaining to the said charge. The petitioner faced the charge during the trial. He was aware of the assertions against him. Indeed now he cannot turn around and complain of prejudice. When no prejudice is caused it would be a futile argument to rely on a technicality. Consequently, this particular argument which was so much thought of by the learned counsel must be rejected.

However, as a last resort the learned counsel urged that in the facts of the present case it will not be appropriate to send the petitioner behind the bars because more than 13 years have expired when the sample was taken. Therefore, he prayed that a lenient view should be taken. The learned counsel had drawn the attention of the Court to number of precedents in support of his claim. In the case of Ishwar Singh v. State of Haryana, 1994(1) RCR 161 the accused was facing the agony of trial for nine years. He was convicted for the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The sentence keeping in view the above fact was reduced to the one already undergone. Same view prevailed with this Court in the case of Sheo Ram v. State of Haryana, 1994(2) RCR 290. While dealing with a similar argument this Court held :

"It was next urged that the facts and circumstances of the present case call for a lenient view in the sentence. The sample in the case was taken in the year 1978 and a period of 15 years has elapsed since then. This revision petition is pending for the last about eight years and the petitioner has already faced sufficient harassment and mental torture, so he may not be sent to jail at this stage and his sentence may be reduced to the period already undergone. This contention of the learned counsel seems valid. The petitioner has faced the agony of a trial which remained pending for 15 years and no useful purpose will be served by sending him to jail after such a long period. I, therefore, partly allow this revision petition and while maintaining conviction of the petitioner reduce the sentence of imprisonment awarded to him to the period already undergone. The sentence of fine along with its default clause is maintained."

No different was the viewpoint in the case of Yashpal v. State of Punjab, 1994(3) RCR 451. The position in the present case is identical. Thirteen years have expired. Merely because if the revision petition is pending in this Court for the last many years is no ground to reject the claim of the petitioner pertaining to speedy trial and justice. Therefore, the interest of justice shall be fully met if the sentence is reduced to the one already undergone with no interference with respect to the fine imposed. JUDGMENT is made accordingly.

Subject to the above said modification, the revision petition fails and is dismissed.