Mahabir vs State of Haryana

V.S. Aggarwal, J.

The relevant facts giving rise to the present petition are that as per the respondents on 26.8.1983 at 6.00 a.m. the Food Inspector intercepted the petitioner at the main bazar Bahadurgarh. Petitioner was found having in his possession about 15 kgs. of milk for public sale. It had been kept in a drum. The Food Inspector demanded a sample after disclosing his identity. 660 mls. of milk was purchased. It was stirred and payment was made. The same was divided into three equal parts in three dry clean bottles. Two drops of formalin were added as preservative in each bottle. The bottles were labelled, stoppered and secured. They were wrapped in strong thick paper. They were sealed. Thumb impression of the petitioner was obtained on the sealed bottle in such a way that both the paper slip and wrapper of sample carry a part of the thumb impression. One sealed bottle was sent to the Public Analyst, Haryana. A copy of the memorandum and specimen impression were sent to the Public Analyst, Haryana. Report was received that the sample contained adulterated milk.

Learned trial Court after recording the evidence held that prosecution has successfully proved its case that the milk was for sale and it was adulterated. On 30.5.1987, the petitioner was held guilty of the offence punishable under section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. Vide a separate order, the petitioner was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 2,000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for 3 months. An appeal was filed in the Court of Sessions at Rohtak. Learned Addl. Sessions Judge dismissed the appeal and upheld the findings of learned trial Court. The sentence, however, was reduced to six months'' rigorous imprisonment and the fine to Rs. 1,000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for two months.

Learned counsel for the petitioner at the outset urged that milk was not for sale and even in his statement under section 313 Code of Criminal Procedure, the petitioner has taken the same defence that the milk was not for sale.

The said contention is totally devoid of any merit. Both the Courts below have arrived at a finding of fact that the milk from which the sample was taken in fact was for sale. There is no ground to take a different view. There is nothing otherwise also on the record to indicate that the milk carried by the petitioner was for a relative of the petitioner and not for sale. Such a plea was rightly rejected to be an afterthought.

In that event, it has been urged that the sample was not taken after stirring the milk. Consequently, when sample was not taken properly, prejudice is caused to the petitioner. However, before the petitioner can take advantage of any such matter, facts must come first. The evidence of the Food Inspector on the record indicates that milk was stirred before a sample was taken. Crossexamination yielded little results. Once a sample had been taken after stirring the milk properly, the abovesaid contention must fail and necessarily should be rejected.

A last resort that had been urged is that sentence should be suitably reduced.

The facts indicate that incident pertains to more than 14 years ago. The short question that thus arises for consideration is as to whether it would be appropriate to direct the petitioner to undergo the rest of the sentence. There is no overemphasizing the fact that speedy trial which is the essence of justice has been lost. A reference of some of the precedents in this regard would make the position clear. In the case of Manjit Singh v. The State of Punjab, 1993(3) RCR (Crl.) 363 : 1993(2) Prevention of Food Adulteration Cases 67 , 11 years had expired before the revision petition was decided. Keeping in view the inordinate delay, the sentence was reduced to the one already undergone. The same question again was considered by this Court in the case of Pardeep Kumar v. State (U.T.) Chandigarh, 1994(1) Chandigarh Criminal Cases 58. Therein the sample had been taken in the year 1984. 9 years had expired by the time the revision petition was heard. Once again the sentence was reduced to the one already undergone. The viewpoint of the Delhi High Court is the same in the case of Vir Singh Chauhan v. State (Delhi), 1994(2) Chandigarh Criminal Cases 253. When the revision came up for hearing, 7 years had expired. Learned Single Judge of the said Court reduced the sentence to the one already undergone. Before the Madhya Pradesh High Court in the case of Jamnalal v. The State of M.P., 1995(1) Prevention of Adulteration Cases, 78, the same view prevailed.

All these decisions are based in the judgment of the Supreme Court in the case of Braham Dass v. State of Himachal Pradesh, 1988(2) RCR (Crl.) 184 : AIR 1988 SC 1789. Therein the accused had been convicted for selling masur whole. The accused had been acquitted by the trial Court, but High Court held him guilty. 8 years were lost. Part of the sentence had been undergone. The Supreme Court reduced the sentence to the one already undergone.

The position in the present case is no different. As already noted above, 14 long years have expired, when the sample was taken. The petitioner has already undergone a part of the sentence. In these circumstances, it will not be in the ends of justice that petitioner again to undergo the rest of the sentence. Consequently, the sentence must be reduced to the one already undergone.

For these reasons, revision petition fails and is dismissed, but the sentence is reduced to the one already undergone.