Mool Chand vs State of Haryana

B.S. Yadav, J.

The present petitioner was convicted under section 16(1)(a)(i) of the Prevention of Food adulteration Act, 1954, by the learned Sub Divisional Magistrate, Palwal and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,000/. In default of payment of fine the petitioner was further ordered to undergo rigorous imprisonment for six months. The petitioner filed appeal which was heard by the learned Additional Sessions Judge, Faridabad. He maintained the conviction of the appellant but reduced the sentence to rigorous imprisonment to six months. The fine was also reduced to Rs. 1,000/. The petitioner has now come to this Court in revision.

The prosecution case in brief is that on 14th October, 1978, P.W. 1 Shri B.C. Verma Government Food Inspector accompanied by P.W. 2 Dr. S.P. Tyagi raided the shop of the petitioner situated at busstand Palwal. The petitioner, who is carrying on Halwai shop, was found in possession of 6 Kgs. of imported Rapeseed oil contained in a tin which he had kept for preparation of sweets and for sale. After disclosing his identity, the Food Inspector after performing requisite formalities purchased 450 grams of the said oil, on payment of Rs. 2.50. The Food Inspector complied with the other relevant provisions of the Food Adulteration Act 1954 and the Rules framed thereunder in respect of the sample in three parts. He also prepared the requisite documents at the spot. He sent one sealed bottle out of the same for analysis and deposited the remaining two parts of the sample with the Local Health Authority. The Public Analyst vide his report Exhibit PD opined that the sample conformed to the specifications of imported groundnut oil and not imported rapeseed oil. Thereafter, the Food Inspector filed complaint Exhibit PE for prosecution of the petitioner.

The learned trial Court had framed the charge of misbranding against the petitioner.

At the close of the prosecution evidence the petitioner was examined under section 313, Criminal Procedure Code. Complex questions were put to him his examination. One question was to the effect that the Public Analyst had found adulteration in the sample of oil. The petitioner denied that allegation. In his defence, the petitioner examined DW1 Jai Ram who is Office Secretary of Delhi Vegetable Oil Traders Association (Registered). He has stated on oath that according to the records of the Association, on 14.10.1978 the rate of groundnut oil was Rs. 6550 per metric ton and that of imported rapeseed oil was Rs. 6050. He has produced copies of the relevant extracts on the record.

Learned counsel for the petitioner argued that there has been no proper examination of the petitioner under section 313, Criminal Procedure Code and this fact has been noticed by the learned Lower Appellant Court but it has brushed aside that omission by saying that no prejudice has been caused to the petitioner as he was well aware of the case which he was to meet.

There is no doubt that the examination of the accused under section 313, Criminal Procedure Code is an important part of the trial as in this country, the accused cannot be asked to enter into the witness box and speak on oath in his own defence. Thus his statement under section 313 Cr.P.C. has its importance. As noticed earlier the charge against the accused was of misbranding but surprisingly enough no question about it was put to him when he was examined under section 313 Cr.P.C. The question put to him was about adulteration. The Public Analyst had no where opined that the sample was found adulterated. According to him the sample conforms at the specifications of imported Groundnut oil. When the examination of the accused is not proper, the accused is entitled to say that he has been prejudiced. Learned counsel for the petitioner has cited Abdul Samim v. The State of U.P., 1980(1) F.A.C. 261. In that case also there was no proper examination. It was held :

"In revision before me it is contended that the applicant was greatly prejudiced by improper examination under section 313 Cr.P.C. The question that was put to the applicant regarding adulteration was as follows :

"Uprokt Namuna Ki Janch Jan Vishleshak Lucknow U.P. Dwara Karai Gai Aur Wah Milawat Pai Gai."

It was not put to the applicant as to what was the adulteration for which he was being charged. The incriminating circumstances against the applicant was that he was found selling lemon drops which contained coal tar dye Rhodamine B but this fact has not been put to him.

In such circumstances the examination under Section 313 Cr.P.C. not bringing out the actual and real circumstances that was brought out in evidence against the applicant, the applicant, could not be convicted of the offence under section 7/16 of the Act."

In Ajit Singh and another v. The State of Punjab 1983 C.C. cases 118 (HC) also, the question of improper examination of the accused under section 313 Cr.P.C. arose. It was remarked :

"The only point pressed upon me on behalf of the petitioner is that although the evidence in respect of taking of samples from out of the bottles of liquor recovered and their being sent to the Chemical Examiner and the examination conducted by the Chemical Examiner along with his report was produced in the trial Court, yet the same was not put to the petitioner at the time of their examination under section 313, Criminal Procedure Code, and that they were prejudiced thereby, has in my opinion, considerable force. To repel this argument of the petitioners, the learned counsel for the State, however, contended that the petitioners knew the case against them and, therefore they were not prejudiced by the absence of reference to Chemical Examiner''s report in their examination under section 313, Criminal Procedure Code. The accused might know that the case against him was but the object of section 313, Criminal Procedure Code, is to give an opportunity to the accused to answer each and every piece of evidence adduced and relied upon by the prosecution."

At first I was of the view that the case should be remanded back and the Court be directed to proceed further from the stage at which the illegalityirregularity appeared in the case. However, in the circumstances of the case it would be a case of hardship to the petitioner. The petitioner is a Halwai and was using oil for preparation of sweetmeats. Though the Food Inspector has stated that oil was kept for sale but his statement can be hardly believed. The petitioner had led evidence to the effect that though he had sold the sample of oil to the Government Food Inspector as imported rapeseed oil, but it has been found to be imported Groundnut oil which is costlier. Therefore, in such circumstances, it can be safely presumed that somebody had sold the oil to the petitioner as rapeseed oil by mistake and that under the said impression the accused sold it as rapeseed oil, because in the evidence of the Government Food Inspector it has come that there was no label on the tin. Therefore, learned counsel for the petitioner argued that the petitioner had no bad faith in describing the oil as imported rapeseed oil. He further pointed out that the petitioner is facing trial since 1978. He has also brought to my notice Machander v. The State of Hyderabad AIR 1955 SC 792, where it was held :

"That the Court would not be prepared to keep the persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty under S. 342. The error was not a mere technicality. In the circumstances of the case the Court would not be prepared to order a retrial. The accused should be acquitted."

If the case is remanded, it would prolong the agony of the petitioner who has already faced a protracted trial. In Abdul Samim''s case (supra) the accused was acquitted merely on the ground that his examination under the section 313, Criminal Procedure Code was not proper.

For the foregoing reasons, I accept the revision petition and set aside the conviction and sentence and acquit the petitioner of the charge framed against him.