Manohar Lal vs State of Punjab

B.S. Yadav, J.

Manohar Lal petitioner was convicted under section 16(1)(a)(i) read section 7 of the prevention of Food Adulteration Act (for short, the Act) by Judicial Magistrate, Sangrur and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1500/, is default of payment of fine further rigorous imprisonment for six months was also awarded. Aggrieved by his conviction and sentence, the convict filed an appeal which was heard by the Additional Sessions Judge, Sangrur. He maintained his conviction, but reduced his sentence of imprisonment from one year to six months. The sentence of fine was maintained. The appeal was disposed of accordingly. Still not feeling satisfied, the convict has filed this revision petition.

The prosecution case in brief is that on July 31, 1981, PW 1 Nek Chand Goyal, Government Food Inspector, inspected the dairy of the petitioner at Sangrur. He was found in possession of 6 Kgs. of skimmed milk for sale for human consumption. After observing the usual formalities prescribed under the Act and the rules framed thereunder, the Food Inspector purchased 660 Mls. of skimmed milk against payment of 80 paise. Before purchasing the sample he had stared the milk contained in the Balti. He divided the milk so purchased into three equal parts and put each part into a separate dry and clean bottle. 18 drops of formalin were added to each bottle as preservative. The bottles were then properly labelled, stoppered, fastened and wrapped as required under the rules. One sample of bottle was sent to the Public Analyst for analysis. The Public Analyst, vide report Exhibit PD. opined that the sample was deficient in milk solidsnot fat by 6 per cent of the minimum prescribed standard. On receipt of the report of the Public Analyst the Government Food Inspector filed a complaint Exhibit in Court for the prosecution of the petitioner.

The accused exercised his right under section 13(2) of the Act. The Director, Central Food Laboratory vide report Exhibit PJ opined that the sample did not conform to the standard of skimmed milk laid down in the table below clause A. 11. 01.11 of Prevention of Food Adulteration Rules, 1955, as the milksolids notfat were deficient than the minimum prescribed limit.

The prosecution story has been supported by PW 1 Nek Chand Goyal, Government Food Inspector and PW 3 Dr. Vinod Kumar who had been associated in the proceedings about the taking of sample.

The accused, when examined under section 313, Criminal Procedure Code, denied the prosecution allegation and pleaded that he did not sell milk and he only extracted cream out of the milk and charged the price of such eraction. Public used to bring milk to him for getting the cream separated from the milk. The milk that was lying in his dairy belonged to one Bhagwan Dass. In his defence, the accused examined DW Bhagwan Dass who has supported the defence version.

The learned counsel for the petitioner argued that the sample from the petitioner was seized in Sangrur City but surprisingly enough no independent witness of the locality was joined by the Government Food Inspector at the time he seized the sample. He, therefore, argued that provisions of section 10(7) of the Act have been violated. That section lays down that when the Food Inspector takes any action under clause (a) of subsection (1), subsection (2), (4) or (6), he shall call one or more persons to be present at the time when such action is taken. He further argued that thought PW 3 Dr. Vinod Kumar is said to be present at the time the sample was seized from the petitioner the said witness cannot be said to be an independent witness. In support of his contention, he has placed reliance upon Ramesh Chander v. The State of Haryana, 1983(i) F.A.C. 198. In that case one doctor who had been invested with the powers of Food Inspector had done the sample in the presence of another doctor. It was remarked :

"In the instant case, on going through the statement of Dr. A.S. Dhir, it is plain that he did not make any effort of the kind whatsoever. His taking a departmental colleague along with him to witness the taking of the sample would not improve matters. Effort had to be made to call some one from the neighbourhood, and a statement in that regard should have found mention in the testimony of the Food Inspector. There is not even a trace of it either in his examinationinchief or crossexamination. Thus the conviction of the petitioner cannot be sustained for completely ignoring section 10(7) of the aforesaid Act."

The ruling relied upon by the learned counsel for the petitioner is not applicable to the present case. Both PW 1. Nek Chand Goyal and PW 3 Dr. Vinod Kumar have stated on oath that persons had collected at the spot and they were requested to become witnesses, but they refused to do so. Therefore, it cannot be said that no sincere effort was made by the Government Food Inspector to join independent witnesses. In such circumstances, the following observations made by their Lordships in Shri Ram Labhaya v. Municipal Corporation of Delhi and another, 1974 Supreme Court Cases (Cri.) 527 would be applicable:

"The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Ram Hargovindas v. State of Gujarat 1971 SCC (Cri.) 337 it was held by this Court after noticing that section 10(7) was amended in 1964, that noncompliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice is evidence alone, if believed can sustain the conviction. The Court observed that this ought not to be understood as minimising the need to comply with salutary provision in section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

"As stated earlier, the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no Court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of law."

Otherwise, also I am doubtful if PW 3 Dr. Vinod Kumar cannot be treated as an independent witness. The object of section 10(7) of the Act is that the proceedings of the Food Inspector should inspire confidence. If the Government Food Inspector takes along with him a doctor, who is neither his subordinate nor his colleague, it cannot be said that the said provision has not been complied with. As held in Vidya Nand v. State of U.P. 1976 Cri. L.J. 1820, a person whose will is not dependent on that of the Food Inspector is to termed as an independent witness. I am not going to believe that a respectable person like a doctor would too the line of the Government Food Inspector. It is, therefore, held that the provisions of section 10(7) of the Act have been substantially complied with.

The learned counsel for the petitioner next argued that the skimmed milk had not been kept by the petitioner for sale for human consumption. He placed reliance on the plea of the accused that he extracts cream from the milk brought by other persons and only realises extraction charges. The learned counsel for the petitioner also placed reliance on the statement of PW 1 Bhagwan Dass. According to him, the skimmed milk from which the sample was seized by the Food Inspector belonged to him. He also placed reliance upon Masta Singh v. Union Territory Chandigarh, 1951 to 1982 F.A.C. (SC) 491. In that case, sample of milk was seized from a person. It was remarked :

"Even on the question whether the milk was meant for sale there is absolutely no evidence on the record except the ipso dixit of PW 1 which is also so vague that no Court can rely on such a statement."

On the basis of the above observations, the learned counsel for the petitioner argued that in the present case also, there is no evidence that the petitioner kept skimmed milk for sale for human consumption. Both the learned Courts below, after discussion the evidence, have held that the defence plea was not reliable and the petitioner had kept the milk for sale Admittedly, D.W. Bhagwan Dass was not present at the time when the sample was seized from the skimmed milk lying in the dairy of the petitioner. D.W. Bhagwan Dass has stated that he had sent a boy to the dairy of the petitioner and he, on return, informed him that the sample had been taken of the milk. That boy has not been examined.

Otherwise also, in The Food Inspector, Calicut Cooperation v. Cherukattil Gopalan and another, A.I.R. 1971 S.C. 1725 another Bench of that Court observed as follows:

"To sum up were are in agreement with the decision in A.I.R. 1964 All 199 and A.I.R. 1965 Mad. 98 to the extent to which they lay down the principle that when there is a sale to the Food Inspector under the Act of an articles of food, which is found to be adulterated, the accused will be guilty of an offence punishable under section 16(1)(a)i) read with section 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions."

In the State of Tamil Nadu v. R. Krishnamurthy, A.I.R. 1980 S.C. 538, it was remarked:

"The object is to emphasise that whatever be the purpose of the sale it is a sale for the purposes of the Act, just as the word `whether by wholesale or retail'' or `whether for cash or credit or by way or exchange'' are intended to emphasise that it is immaterial for the purpose of the Act what manner and method of sale is adopted. To give any other interpretation to the definition of `sale'' would be to exclude from the ambit of the Act that which has been included by the definition of food''. Further, a sale `for analysis'' can never be a sale for human consumption'' but it is none the less a sale within the meaning of the definition. It is an unqualified sale for the purposes of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and there by insure himself against prosecution for selling adulterated food. If sale for analysis is an unqualified sale for the purposes of the Act, there is no reason why other sales of the same article should not be sale for the purposes of the Act. The question may be a ked why sales for analysis should be specially mentioned if all manners of sale included in the definition. It is only to prevent the argument that sale for analysis is not a consensual sale and hence so sale, an argument which was advanced and rejected in Mangla Dass v. State of Maharashtra, A.I.R. 1966 S.C. 128."

In the instant case, the petitioner has signed the various memos prepared on the spot. On none of the memos he made an endorsement to that effect that the skimmed milk did not belong to him or that it was not meant sale for human consumption. I may also mention here that the suggestion put to P.W.1 Nek Chand Goyal and PW 3 Dr. Vinod Kumar was to the effect that the milk belong to Bhagwan Dass, who was present there and had objected to the taking of the sample of his milk. A noticed earlier, Bhagwan Dass has stated that he was not present at the time of the sample. It is, therefore, held that the accused had kept the skimmed milk for sale and did effect sale to the Government Food Inspector.

The learned counsel for the petitioner next argued that both PW 1 Nek Chand and PW 3 Dr. Vinod Kumar have not stated that the bottles were dried and cleaned at the spot, though they have stated that the bottles were dry and clean. According to him, the bottles ought to have dried cleaned at the spot. In support of his contention, he has relied upon Niadar v. The State of Haryana 1977, C.L.R. (Punjab and Haryana) 365. In that case, the learned Judge had remarked that the witness had not stated that the three bottles were cleaned and dried before the samples of milk were put into them. Taking that ground and other grounds the accused was acquitted in that case. In the present case, both the witnesses have stated that the bottles were dry and clean. The accused has also not taken the plea, when examined under section 313 Criminal Procedure Code, that the bottles were not clean and dry. I am of the opinion that in the circumstances of the present case, the above ruling has not application.

Lastly, the learned counsel for the petitioners has argued that the milk is a primary food and, therefore, prayed that the sentence awarded to the petitioner to be reduced.'' A Full bench of this Court has held that milk is not a primary food within the meaning of section 2 (xiia) of the Act. That judgment is reported as Budh Ram v. State of Haryana 1985(1) Recent Criminal Reports 510 (FB); 1985 Crl. L.J. 311. Therefore, the question of reduction of sentence of the petitioner does not arise in the present case.

For the foregoing reasons, I do not find any force in the present revision petition and dismiss the same. The petitioner will surrender to undergo his unexpired period of sentence.