Madan Lal vs State of Haryana

M.L. Singhal, J.

This criminal revision has been filed against the order of Addl. Sessions Judge, Jagadhari, dated 16.9.1998 whereby he dismissed the appeal of Madan Lal against his conviction and sentence recorded by Chief Judicial Magistrate, Jagadhari, under Ss. 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") in Food Case No. 308 of 1989/91.

The prosecution case, briefly stated, is that on 20.4.1989 at 4.15 p.m., Sh. A.R. Nehra, Govt. Food Inspector, accompanied by Dr. Naveen Sabharwal, intercepted Madan Lal in the area of Workshop Road Yamuna Nagar. At that time, he was found carrying 10 kgs. of Haldi powder in a gunny bag. It was meant for sale to the public. After disclosing to the accused that he was Food Inspector authorised to seize samples of food stuff from their vendors meant for sale to the public and to have the same analysed from public analyst, Sh. A.R. Nehra served notice upon the accused. After serving notice upon the accused, he asked him to supply him 450 gms. of Haldi powder on receipt of the necessary payment. Accused supplied him 450 gms. of Haldi powder on receipt of Rs. 5.40 from him against receipt. Food Inspector divided the sample into three equal parts. He put each of those sampleparts into three dry, clean and empty bottles. After complying with the necessary procedure prescribed under the Act, he sent one of the sealed sample packets to Public Analyst Haryana. He deposited the other two sealed sample packets in the office of Local Health Authority, Jagadhari. Public Analyst analysed the sample and found that the sample was containing rice starch. It also contained added prohibited orange oil soluble coaltar dye whereas it should have been free from artificial colouring matter. On receipt of the report of the public analyst, copy whereof was sent to the accused through registered post along with forwarding letter by the local health authority, Food Inspector instituted complaint under Section 7 read with S. 16(1)(a)(i) of the Act in the court of Chief Judicial Magistrate Jagadhari. After examining Sh. A.R. Nehra, Govt. Food Inspector (P.W.1), Sh. A.N. Sharma, Food Inspector (P.W.2), accused was charged by the learned magistrate for offence punishable under S. 7/16(1)(a)(i) of the Act. Accused pleaded not guilty to the charge and claimed trial. After the charge was framed, the prosecution examined Dr. R.K. Jain, SMO; Sh. A.N. Sharma, Govt. Food Inspector; Sh. Naveen Sabharwal (P.W.4), etc. Sh. A.R. Nehra, Food Inspector P.W.1 was recalled for cross examination.

In his statement recorded under Section 313, Cr.P.C. the accused denied the incriminating circumstances appearing in prosecution evidence against him. In defence, he put himself into the witness box as D.W.1. On the conclusion of the trial, the learned Chief Judicial Magistrate found the charge proved against the accused, convicted him thereunder and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/ or in default of payment of fine to suffer further rigorous imprisonment for one month, vide order dated 29.1.1998. Appeal of Madan Lal to the Court of Sessions failed. Aggrieved by the order of conviction and sentence passed against him by the learned Addl. Sessions Judge, Jagadhari, while dismissing his appeal, the accused has come up in revision to this Court.

I have heard the learned counsel for the petitioner and gone through the record. Learned counsel for the petitioner submitted that the petitioner had been unjustifiably convicted and sentenced by the two courts below. It was submitted that the petitioner has been convicted on the uncorroborated testimony of the Food Inspector and Dr. Naveen Sabharwal. Dr. Naveen Sabharwal should not have been viewed as an independent witness. He was part of the raiding team and, as such, he was equally interested in seeing that the case detected by them succeeds and the accused is convicted and sentenced. It was further submitted that there has been violation of the provisions of Section 10(7) of the Act. Section 10(7) of the Act lays down that where the Food Inspector takes any action under clause (a) of subsection (1), (2), (4) or subsection (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. It has been submitted that the words "one or more persons" appearing in S. 10(7) of the Act mean one or more independent persons. In support of the submission, he drew my attention to Ram Lubhaya v. Municipal Corporation, Delhi, 1974 SCC (Crl.) 527. Suffice it to say, Food Inspector was required to have the seizure of the sample of Haldi Powder witnessed by an independent witness or witnesses if he was/were available. In this case, the seizure of sample by the Govt. Food Inspector has been corroborated by Dr. Navin Sabharwal PW. Why should Food Inspector corroborated by Dr. Naveen Sabharwal be not believed ? If Food Inspector corroborated by Dr. Naveen Sabharwal is not believed, that would tantamount to holding that no conviction is possible in a Food Adulteration case till corroboration by a nonofficial witness. We have to look to the quality of evidence and not the quantity thereof. Food Inspector corroborated by Dr. Naveen Sabharwal can well be believed if their testimony inspires confidence in the mind of the court as to its truth. Testimony of Food Inspector corroborated by Dr. Naveen Sabharwal cannot be ignored.

The learned counsel for the petitioner submitted that the accused purchased Haldi powder under a warranty from Messrs Raj Traders on 27.4.1988 and the warranty is recorded on bill Ex.D1. In support of this submission he was drawn my attention to the provisions of S. 19 of the Act which lays down as follows :

"19. Defence which may or may not be allowed in prosecutions under this Act. (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves

(a) that he purchased the article of food

(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer;

(ii) in any other case, from any manufacturer, distributor or dealer,

with a written warranty in the prescribed form;

(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.

(3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence."

Suffice it to say, the petitioner has not shown that he purchased Haldi powder from a licensed manufacturer, distributor or dealer. He has failed to show that M/s Raj Traders was a licensed manufacturer, distributor or dealer of Haldi Powder. Assuming that M/s Raj Traders was a licensed manufacturer, dealer or distributor of Haldi powder, there is no evidence that the article of food while in the possession of the petitioner was properly stored by him and he kept in it the same state as he had purchased it. In the instant case, there is no warranty in the prescribed form. There is no proof that the sample was taken from a gunny bag bearing the manufacturer''s label guaranteeing purity of goods nor is there any such warranty in the invoice Ex.D1. Food Inspector stated that the Haldi powder was lying in the open in a gunny bag. At the time when the sample was taken, the accused did not show any bill. So, the petitioner cannot take advantage of the provisions of Section 19 of the Act. It was submitted that the Haldi powder in question cannot be said to have been substandard or adulterated. `Adulterated'' has been defined in the Act.

"An article of food shall be deemed to be adulterated

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;

(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;

(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption."

Suffice it to say, in the Haldi power, there should be no artificial colouring matter and also that it was containing rice starch. Following are the constituents of Haldi powder as per item No. A.05.20.01 given in Appendix B to Prevention of Food Adulteration Rules, 1955 :

Moisture Not more than 13.0 per cent by weight.

Total ash Not more than 9.0 per cent by weight.

Ash insoluble in dilute HCl Not more than 1.5 per cent by weight.

Test for lead chromate Negative.

Total starch per cent by weight Not more than 60.0 per cent."

In my opinion, the learned courts below justifiably found the charge proved against the accused/petitioner.

Faced with this situation, learned counsel for the petitioner submitted that the accused/petitioner has been facing the vagaries of this criminal trial for the last nine years. He remained under trial before the magistrate for nine years and eventually, he was convicted. He filed appeal before the Court of Session. Unfortunately his appeal was dismissed. He submitted that the court should show come consideration to the petitioner in the matter of sentence keeping in view that this criminal trial has been hanging over his head like Damocles sword for the last nine years.

Right of speedy trial is a fundamental right of the accused flowing from Article 21 of the Constitution of India. If the court cannot assure the accused speedy trial, it should atleast take this fact into account while awarding sentence that he has been put to a lot of mental torture by the trial having lasted for nine years. It is true that the minimum sentence is prescribed under the Act and the minimum sentence has been awarded to the petitioner but it is equally true that the guarantee given to the accused under Article 21 of the Constitution of India cannot be set at naught and has to be given effect to. The sentence imposed is, therefore, reduced to rigorous imprisonment for three months, sentence of fine is maintained together with the default clause.

Subject to the reduction in sentence as indicated above, this revision fails and is dismissed.

Revision dismissed.