Rikhi Ram vs State of Haryana

A.S. Nehra, J.

Petitioner was convicted under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and was sentenced to undergo R.I. for nine months and to pay a fine of Rs. 1500/ and in default of payment of fine to undergo further rigorous imprisonment for three months on 29th October, 1991 by Judicial Magistrate Ist Class, Ambala Cantt. On appeal the learned Sessions Judge, Ambala vice his judgment dated May 20, 1992 maintained his conviction but reduced his sentence of imprisonment from nine months to six months maintaining the sentence of fine with its default clause. Hence this revision petition.

Briefly the case of the prosecution is as follows :

"On 21101981, C.L. Grover Food Inspector alongwith Dr. H.R. Ghoshal was present in the area of Ambala Cantt, near Arya Nagar and the accused was then intercepted while he was carrying milk in arum for public sale. The Food Inspector then introduced himself to the accused and inspected the drum of the milk which was on the carrier of the cycle of the accused. On inquiry the accused told that the drum contained cow''s milk for public sale. There was 20 litres cow''s milk in the drum for public sale with the accused. Food Inspector also joined Des Raj as independent witness from the place where the sample of milk was taken. The Food Inspector then served notice Ex.PA upon the accused for taking sample of cow''s milk for analysis. The Food Inspector then stirred the entire milk of the drum with the measurement of the accused and made it homogeneous and purchased 660 mls. of cow''s milk from the accused for analysis on payment of Rs. 1.70 paise vide receipt Ex. PB. Spot memo Ex. PC was prepared at the spot. The accused put his thumb impression on Ex. PA, PB and PC in the presence of Dr. H.R. Ghoshal and Desh Raj PW and the PWs but their signatures. Purchased milk was then poured into three empty dry and clean bottles equally and 18 drops of formaline were put in each bottle as preservative. All the bottles were duly stoppered, labelled and wrapped in fairly strong tick paper. The neck of each bottle was separately wrapped with a paper and tied with thread and the seal of Dr. H.R. Ghoshal was affixed on the neck of each bottle. Thereafter, all the three bottles were separately wrapped and the corners of the papers were duly pasted with the gum. Dr. H.R. Ghoshal and Food Inspector put their signatures on the papers. The copy of form VII with the impression of the seal used was also prepared on the spot. One sealed bottle alongwith a copy of form VII was sent to the Public Analyst, Haryana Chandigarh for analysis through Sant Ram SSK and a copy of the form No. VII and a specimen impression of the seal used to seal the packet was separately sent, through the same messenger in a sealed envelop. Thereafter, the two remaining parts were deposited with the L.H.A. Ambala in sealed packets alongwith memo form No. VII. After receiving the report of the Public Analyst Ex. PD by the Food Inspector through the Local Health Authority, Ambala the Food Inspector launched this complaint Ex. PA against the accused for his prosecution and informed the Local Health Authority Ambala to this effect so that the latter could comply with the provisions contained in Section 13(2) of the Act. After complying with the aforesaid provisions the Local Health Authority informed the Food Inspector to that effect."

Prosecution to prove its case has examined Shri C.L. Gover PW 1 and Dr. H.R. Ghosal PW 2 and tendered affidavit Ex. PH in evidence. Statement of the accused under Section 313 of the Code of Criminal procedure was recorded. He denied the allegations of the prosecution and stated that he had been falsely implicated in the case. He examined Sat Pal DW and tendered receipts of `Teh Bazari'' Ex. D1 and D2 in his defence.

Shri C.L. Grover PW 1 has fully supported the allegations levelled in the complaint. PW2 Dr. H.R. Ghosal has also made a similar statement and has fully supported the statement of PW1. PW2 has also stated that after receiving report of filing of the complaint in the Court, he sent copy of the report of Public Analyst Ex. PD through a registered post to the petitioner. The postal receipt is Ex. PF and forwarding memo is Ex. PG.

The learned counsel for the petitioner first contended that the provisions of Section 13(2) of the Act had not been complied with in as much as the report of the Public Analyst has not been sent to the petitioner by Local Health Authority, hence the petitioner has been deprived of his valuable right to send the second sample for analysis to a superior expert. Learned counsel for the petitioner further argued that as per the evidence of the prosecution for report of the Public Analyst Ex. PD was sent through registered post but the postal receipt Ed. PF does not belong this case as it was addressed to one Rishi Ram; so Ex. PF cannot be read in evidence. Learned counsel for the petitioner further contended that as per the prosecution case the complaint was instituted on 22nd December, 1991 and notice was issued to the petitioner for 5th January, 1982 but the complaint had neither been filed in the Court of Sh. N.L. Pruthi nor it was fixed before Shri N.L. Purthi for 5th January, 1982 and this complaint was filed on 20th of April 1982 in the Court of Sh. N.L. Pruthi.

PW 1 has categorically stated in examinationinChief that before launching the complaint against the petitioner he sent information to the Local Health Authority, Ambala for complying with the provisions of Section 13(2) of the Act. Upon this report Local Health Authority Dr. H.R. Ghoshal PW 2 sent intimation, the copy of which is Ex. PG, to the petitioner alongwith the copy of Public Analyst''s report Ex. PD through registered post vide postal receipt Ex. PF. The documents of the file have proved that the report of Public Analyst was sent to the petitioner through Ex. PG. Petitioner appeared in Court on Ist June, 1982 but he did not move any application for sending the second sample to the Central Food Laboratory and he never made any complaint to the Court that he had been deprived of any right. Unless the application to send the second sample is made the petitioner cannot complaint that he has been deprived of his valuable right to get the second sample examined from any superior expert. Thus,he has not been prejudiced in any manner. Both the requirements of Section 13(2) of the Act have been complied with. There is no doubt that postal receipt does not bear the name of Rishi Ram but it appears that Rishi Ram has been written due to slip of pen. Father''s name and address of the petitioner has been recorded correctly. Carbon copy of the registered letter shows that the report of the Public Analyst was sent to one Rishi Ram, so it cannot be said that the report of the Public Analyst was not sent to the petitioner. Documents Ex. PG and PF cannot be disbelieved because PW 2 and PW 1 have no enmity with the petitioner.

Learned counsel for the petitioner further contended that milk was not stirred and made homogeneous by the Food Inspector before taking the sample. Both the PWs have categorically deposed that the sample of milk was taken after stirring and it was stirred with the help of measurement of one Kg. which was carried by the petitioner with him. So from the testimony of witnesses it is clear that sample taken after stirring and making it homogeneous. Learned counsel for the petitioner further contended that no sample of milk was taken from the petitioner as he never sold milk nor he remained ever connected with this business. The defence of the petitioner is that he repairs Tripals etc. and in his defence he produced receipts Ex. D1 and D2 of Teh Bazari and also produced Sat Pal DW 1. DW 1 stated that the Food Inspector obtained the signatures of the petitioners forcibly. The evidence of the petitioner does not inspire any confidence and it is not believable. PWs have no illwill against the petitioner. Therefore, there is no force in the argument of the learned counsel for the petitioner and the same is rejected.

Mr. P.S. Hundal, Advocate, counsel for the petitioner, has contended that speedy trial was the essence of justice and inordinate delay in disposal of the case itself caused sufficient agony to the petitioner; so, it was a fit case where he should not be sent to jail at this stage and the sentence awarded to the petitioner may be reduced to the period during which he remained in jail. His contention is that the sample of milk was taken on October 21, 1981 i.e. abut 12 years back and that the petitioner is on bail. He further submitted that the prolonged litigation itself is a ground for treating the petitioner in a lenient manner. In support of this contention, the learned counsel for the petitioner placed reliance upon Braham Dass v. State of Himachal Pradesh, 1988(2), Prevention of Food Adulteration cases 13, where in it was held as under :

"Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court, and the High Court while reversing the judgment of acquittal made by the Appellate Judge has not made clear reference to clause (f). The occurrence took place about more than 8 years back. Records show that the appellant has already suffered a part of the imprisonment. We do not find any useful purpose would be served in sending the appellant to jail at this post of time for undergoing the remaining period of the sentence, though ordinarily in an antisocial offence punishable under the Prevention of Food Adulteration Act the Court should take strict view of such matter."

I find that, in the instant case, the petitioner has faced protracted litigation and has undergone sufficient mental harassment. So, keeping in view the circumstances of the case, I find it a fit case where no useful purpose would be served by sending the petitioner to jail at this state for undergoing the remaining period of sentence.

As a result, I partly allow the revision petition and while maintaining the conviction of the petitioner, reduce his sentence of imprisonment to the period already undergone by him. The sentence of fine, however, is maintained alongwith its default clause.