Krishan Lal vs State of Haryana

M.L. Singhal, J.

On 29.8.82 at about 9 a.m. Shri Kali Ram, Govt Food Inspector vested with the powers of Food Inspector under the Prevention of Food Adulteration Act, 1954 (in short the Act) intercepted Krishan Lal Petitioner herein carrying 20 litres of cow milk in Chhoti Market, Model Town, Karnal which was meant for sale to the public. At that time, Dr. S.K. Sharma, Deputy Chief Medical Officer, Karnal and one Rajbir were with him. Shri Kali Ram disclosed his identity to the accused that he was Govt. Food Inspector authorised to see sample of foodstuff from their vendors with a view to have the same analysed vide Notice Form VI, Ex. P4; he expressed his intention to seize sample of cow milk from his possession with a view to have the same analysed. Thereafter, he purchased 660 ml. of cow milk from him. Accused gave 660 ml. of cow milk to Shri Kali Ram on receipt of Rs. 1.60 from him vide receipt Ex. PB. Krishan Lal told Shri Kali Ram that he was servant of one Prem Chand and this milk belonged to Prem Chand. Shri Kali Ram stirred the entire milk contained in the drum and made it homogeneous for purchasing 660 mls. thereof. He divided that milk into three equal parts. He put each of those parts into clean and dry bottles. He added 18 drops of Formalin 40% as preservative in each bottle. The bottles were stoppered, packed, securely fastened, wrapped and sealed on the neck with seal of Medical Officer. Bottles were labelled and then wrapped in strong thick paper. Those were wrapped with code number issued by the local health authority, Karnal from top to bottom. Each bottle was secured by means of strong twine and sealed with the seal of medical officer and Govt. Food Inspector. Thumb impression of Krishan Lal was obtained in such a manner that part of the thumb impression appeared on the paper slip and part of the thumb impression appeared on the wrapper of the sample. One sealed bottle along with Form VII with specimen impression of the seal used in sealing the bottle and box was sent to the Public Analyst, Haryana for analysis through railway parcel. Another copy of the memo along with seal impression of the seal used was sent by registered post to Public Analyst, Haryana with intimation to the local health authority Karnal. Two sealed sample bottles along with two copies of memo Form No. VII were deposited with the local health authority Karnal. Every proceeding taken at the spot was incorporated in memo Ex.PC. Memos Ex. PA, PB and PC were thumb marked by the accused and these were signed by Shri Kali Ram, Food Inspector and attested by Dr. S.K. Sharma and Rajbir PWs. Public Analyst, Karnal vide report Ex.PD found the sample milk deficient in milk fat content as well as milk solids not fat content by 12.5% and 2% respectively of the minimum prescribed stands. After the receipt of the report of the Public Analyst, Shri R.D. Goel, Govt. Food Inspector, Karnal instituted complaint against the accused under section 7/16(1)(a)(i) of the Act. Govt. Food Inspector informed the local health authority regarding the institution of the complaint by him who sent copy of the report of the of Public Analyst along with the forwarding memo to the accused by registered post.

At the conclusion of the trial the complaint, Chief Judicial Magistrate, Karnal found the charge under section 7/16(1)(a)(i) of the Act proved against the accused. He accordingly convicted and sentenced him to undergo RI for 6 months and to pay fine of Rs. 1,000/ or in default to undergo further RI for 3 months vide order dated 23.9.86.

Aggrieved from his conviction and sentence recorded by Chief Judicial Magistrate, Karnal, Krishan Lal went in appeal to the court of Session. Additional Sessions Judge, Karnal dismissed his appeal vide order dated 21.11.87 and maintained the conviction and sentence passed upon him by Chief Judicial Magistrate, Karnal.

Aggrieved from the order passed by Additional Sessions Judge, Karnal dated 21.11.87 maintaining the order of Chief Judicial Magistrate, Karnal dated 22.9.86, Krishan Lal has come up in revision to this court.

It has been submitted by the learned counsel for the petitioner that milk was not made homogeneous before the sample was taken. In has been submitted that there is no mention in the complaint that milk had been stirred and made homogeneous before sample was taken. It has been submitted that if the Food Inspector has stated in his statement before the court that before the sample was taken, he had stirred the milk and made it homogeneous in the drum that is an afterthought and the court should not take that the milk had really been stirred and made homogeneous before the sample was taken. It has been submitted that if sample of milk had been taken without it having been made homogeneous, there will be variation in the milk fat content and milk solids not fat content. It has been submitted that deficiency in milk fat content and milk solids not fat content in the sample in question is because of the fact that milk had not been stirred and made homogeneous before sample was taken. In support of this submission, he has drawn my attention to State of Punjab v. Munshi Ram & others, 1992(1) RCR 47 where it was held as follows

"Sample of milk found to be adulterated. Fact of stirring not mentioned in the seizure memo. Subsequent evidence on the point of stirring of milk could not be believed. Accused acquitted."

Suffice it to say if milk is not properly stirred and made homogeneous before sample is taken, there cannot be deficiency both in milk fat content and milk solids not fat content. Milk fat content will be higher and milk solids not fat content will be lower if sample is taken from the upper layer of milk if milk is not made homogeneous.

It has been further submitted that the learned Magistrate should have tried the case summarily in view of the provisions of section 16A of the Act instead of trying the case in accordance with summary procedure of trial of cases; the Magistrate tried the case as if it were a warrant case. If the Magistrate were to try the case as if it were a warrant case, he ought to have recorded that in case of conviction, he would not be able to pass an adequate sentence upon the accused and, therefore, he is trying the case in accordance with the procedure of trial of warrant cases. It has been submitted that the trial of the accused being not in accordance with the law, the trial became vitiated. Section 16A of the Act reads as follows :

"16A. Power of Court to try cases summarily."

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year :

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."

It is true that the Magistrate has not recorded an order satisfying the requirement of section 16(A) of the Act. He did record an order that he would try the case in accordance with the procedure of trial of warrant cases. Trial of the accused in accordance with the procedure meant for the trial of warrant cases, gave greater assurance to the accused of fair play and justice. Accused crossexamined PWs twice. Crossexamining the accused twice afforded him greater assurance. Defeat of procedure in the trial of the accused cannot be allowed to vitiate the trial of the case because accused has not shown that he suffered any prejudice on that account.

Accused was about 18 years old at the date of the seizure of the cow milk from his possession. On 8.9.86 i.e. when his statement under section 313 Cr.P.C. was recorded, he gave his age as 1920 years. It has been submitted that the court should have taken the accused to be 18 years old at the date when sample of cow milk was taken from his possession. Suffice it to say, assuming that the accused was less than 18 years at the date of seizure of cow milk from his possession, he could not have been released on probation of good conduct though section 20A of the Act allows the release of accused below 18 years on probation of good conduct because the sale of an impure/adulterated article of food is an offence against society and the accused was enriching himself at the cost of his fellow brethren. Accused has been facing this trial for the last 16 years. He was then 1819 years old. He is now 3435 years old. Deficiency in the constituents of milk may, to some extent, be attributable to improper sampling. Interest of justice, therefore, demands that the accused should not be committed to jail after a lapse of 16 years. Interest of justice demands that the conviction be maintained but the sentence imposed upon him by the two courts below be reduced to the sentence already undergone by him and sentence of fine be enhanced and fine of Rs. 5,000/ be accordingly imposed. It is so ordered. Remaining amount of fine be deposited on or before 31.8.1998. So, conviction is maintained. Sentence is modified. Revision is accepted to the extent indicated above. This judgment will not be precedent for any case in future where the offender is less than 18 years of age. Revision partly accepted.