Khem Chand vs State of Haryana

S.C. Dutta, J.

The petitioner Khem Chand son of Mangat Ram, a shopkeeper at Sohna Adda Chowk, Gurgaon faced trial before the learned Chief Judicial Magistrate, Gurgaon on a charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. He was found guilty of the charge, convicted thereunder and sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/. He was further ordered to suffer rigorous imprisonment for a period of three months in default of the payment of fine. The order of conviction was passed on 5.10.1985. Feeling aggrieved against the order of conviction and sentence, the petitioner appealed before the Sessions Judge, which was ultimately heard by the Additional Sessions Judge (I), Gurgaon, who by his order dated 25.9.1986 dismissed the appeal and affirmed the order of conviction and sentence recorded by the learned Chief Judicial Magistrate, Gurgaon. Hence this revisional application.

The facts of this case, in short, are that on 17.12.1981 at about 11.20 A.M. Food Inspector H.R. Khanna accompanied by Dr. B.S. Dahiya, Deputy Chief Medical Officer visited the shop of the petitioner Khem Chand, Kiryana Dealer, Sohna Adda Chowk, Gurgaon and found in possession of about 5 Kgs. of Chillies ground exposed for sale. The Food Inspector demanded a sample of Chillies ground by giving him notice in writing and purchased 600 grams of Chillies ground for analysis from the accused for a sum of Rs. 9/. After usual formalities being observed, the sample was sent for chemical analysis. On examination, the said sample was found to be adulterated. The Food Inspector filed a complaint in the Court of learned Chief Judicial Magistrate, Gurgaon on 5.2.1982. The learned Chief Judicial Magistrate, Gurgaon ordered issuance of notice to the accused for 3.3.1982. The petitioner appeared in the Court on 18.2.1982. The petitioner and on the same day filed an application under Section 13(2) of the Act for sending the second part of the sample to the Director, Central Food Laboratory, Ghaziabad for reanalysis. The Director, Central Food Laboratory submitted report dated 25.3.1982 to the Chief Judicial Magistrate with observation that the sample did not conform to the standard of chillies powder. The trial proceeded and both the Food Inspector and the Deputy Chief Medical Officer were examined in Court. The prosecution gave up Mansa Ram, another witness of the seizure, as having been won over by the accused. On conclusion of the trial, learned Chief Judicial Magistrate convicted and sentenced the accused petitioner vide his judgment and order dated 5.10.1985. As noticed earlier, the petitioner''s appeal did not meet with any success.

Learned counsel appearing for the petitioner has challenged the conviction of the petitioner firstly on the ground that the Public Analyst and the Director, Central Food Laboratory in their respective reports had not mentioned that the percentage of total ash and ash in soluble indilute HCl, has been measured by weight. It is argued that in the absence of said material record, it cannot be said that the total ash and ash insoluble in the present case was more than the prescribed standard. The second ground of challenge by the learned counsel for the petitioner is that there is no evidence on record to show that the Jhaba (with the help of which the sample of Chillies ground was taken from the tin) had been cleaned before using the same and that being so, the chances were that the percentage of total ash and ash insoluble was high in the present sample. Thirdly, it was contended by the learned counsel appearing for the accused petitioner that there was difference with regard to the percentage of ash and ash insoluble as examined by the Public Analyst and the Director, Central Food Laboratory and this would show the bulk had not been properly mixed up before taking the sample. The conviction was challenged also on the ground that there was no evidence on record to show that the upper layer of the chillies ground had been removed before taking the sample and that being so, it cannot be said that the sample of chillies powder was adulterated, inasmuch as there was enough evidence on record to show that the shop of the petitioner accused was situated on a busy road side and accordingly, it was the duty of the Food Inspector to have thoroughly mixed up the bulk before taking the sample.

From the perusal of the judgment of the trial Court as that of the appellate Court, it appears that all these grounds were taken before these Courts, but all the contentions raised on behalf of the petitioner accused were negatived by both the Courts below on the basis of several judicial pronouncements. The first appellate Court, it appears, has elaborately discussed all the points raised on behalf of the petitioner accused and quite justifiably rejected all the contentions. I find nothing to disagree with the findings of the Courts below. The learned lawyer appearing for the petitioner accused has not urged any other new ground in support of the revision. It is evident that the case has been properly decided and no interference with the findings of the Courts below seems necessary. Resultantly, the order of conviction need be sustained.

But while sustaining the conviction, it would be relevant to notice one important fact. The seizure of the article was effected way back on 17.12.1981 and the conviction was recorded by the learned Chief Judicial Magistrate, Gurgaon on 5.10.1985. On receipt of notice from the court of learned Chief Judicial Magistrate, the petitioner accused appeared before him and was bailed out. After conviction on 5.10.1985, he was again bailed out. Then he filed an appeal before the Sessions Court. The appeal was dismissed on 25.9.1986. Thereafter, the petitioner moved this Court in revision. The revision petition was admitted and the bail was granted to the petitioner on 3.10.1986. The accused, however, deposited the fine immediately after conviction on 5.10.1985. The revisional application could not be heard by this Court during all these years i.e. from October, 1986 till it was finally heard on 9.1.1996. It is evident, therefore, that practically for more than 14 years the petitioner/accused has faced the criminal proceedings. The fact is also not disputed that this is first offence of the petitioner/accused. He has undergone sufficient mental harassment and spent a huge amount towards the cost of litigation. So, keeping in view the circumstances of the case, I find it a fit case where no useful purpose would be served by sending the petitioner to jail at this stage for undergoing the remaining period of sentence of imprisonment. In my opinion, the ends of justice would be met if the sentence is restricted to fine only.

As a result, the revision petition is partly allowed by remitting the sentence of imprisonment of the petitioner but maintaining his conviction and sentence of fine alongwith its default clause. The revision petition is, thus, disposed of.