Sandeep Kumar vs State of Haryana

R.L. Anand, J.

This is a criminal revision and has been directed against the judgment dated 17th September, 1996 passed by the Court of Additional Sessions Judge, Bhiwani, who while dismissing the appeal of Shri Sandeep Kumar petitioner, affirmed the judgment and order dated 17th April, 1996 passed by the Court of Chief Judicial Magistrate, Bhiwani, who convicted the petitioner under Section 16(1)(a)(i) read with Section 7 of the Food Adulteration Act, 1954 (for short ''the Act''), and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/. In default of payment of fine, the petitioner was directed to undergo rigorous imprisonment for one month.

The brief facts of the case are that Shri Abhey Ram Nehra, Government Food Inspector, inspected the premises of Shri Sandeep Kumar petitioner on 9.4.1992 at 4.30 p.m., at the Bus Stand and found him having in his possession Bundi Besan weighing about 10 kg. for public sale, contained in a tray. A sample of Bundi was demanded by giving notice in writing in Form VI prescribed under the Prevention of Food Adulteration Rules, 1955 (for short ''the Rules''). 600 Grams of Bundi Besan was purchased after mixing the whole contents and made uniform for analysis from Shri Sandeep Kumar, for Rs. 12/. The Bundi was divided into three equal parts, bottled in three dry, clean, empty bottles. The bottles were stamped tightly and sealed on the neck with the seal of the Medical Officer as Dr. U.K. Lamba and Dr. R.K. Bansal were accompanying the Food Inspector at the time of inspection of the premises of Shri Sandeep Kumar. The bottles were labelled and wrapped into strong thick paper and the ends of the paper were pasted with gum paper slip bearing code number and signatures of LHA, Tosham, was pasted on each bottle from top to bottom. Each bottle was secured by means of strong twine and sealed with the seals of Medical Officer and Food Inspector at the spot. Signatures of Sandeep Kumar were obtained in such a manner that both the paper slip and the wrapper on each sealed bottle carried a part of his signature. One sealed bottle along with a memorandum in form VII was sent to the Public Analyst, Haryana, Karnal, for analysis in a sealed packet through railway parcel. The other two sealed bottles along with two copies of memo in Form VII were deposited with the Local Health Authority at Tosham in a sealed packet. The specimen impression of the seals used to seal the sample and the packed bottle sent to the Public Analyst, Haryana, Karnal, by registered post vide post office receipt. The sample was taken in the presence of the witnesses and one Ram Kishan, an independent witness. Report of the Public Analyst was received which shows fungus in the entire sample. Therefore, it is alleged that the accused has committed the offence of Food Adulteration Act. Copy of the report of the Public Analyst was also sent to the accused.

Learned Chief Judicial Magistrate recorded the precharge evidence. The accused was chargesheeted for the offence under Section 16(1)(a)(i) read with Section 7 of the Act. The charge was read over to the accused. In order to prove the charge, the complainant, i.e., the Food Inspector, examined himself as PW 1, Dr. U.K. Lamba as PW 2 and Dr. R.K. Bansal as PW 3 and then closed the evidence. The statement of the accused was also recorded under Section 313, Cr.P.C., who denied the version of the prosecution in toto and pleaded false implication. However, the accused did not opt to lead any evidence in his defence. Learned Chief Judicial Magistrate relied upon the prosecution version and rejected the defence story and convicted and sentenced the petitioner in the manner stated above, and has given the reasons for his conviction in para No. 13 of the judgment dated 17th April, 1996, which is reproduced as under :

"13. After hearing the arguments of the learned counsel for the accused, GFI and after going through the oral and concumentaly evidence, and the law relied upon, I have come to conclusion as follows :

The prosecution to prove its case has examined PW 1 A.R. Nehra, Food Inspector, whose statement is further fully corroborated by the statement of U.K. Lamba, Medical Officer, and all other documents have also been duly proved by Dr. R.K. Bansal. The complaint Ex. PE and the report of the Public Analyst Ex. PD are also duly proved and tendered in evidence. In view of the observations made by the Hon''ble Supreme Court of India, 1992(1) PFA Cases Page 175 corroboration by any independent witness is not necessary. In my opinion, the statement of GFI while giving up independent witness on the ground that the same has been won over by the accused is sufficient explanation for not examining the said witness. When the accused has not moved any application for reanalysis for the sample from the CFL, therefore, question of being caused any prejudice to the accused for delaying the prosecution case does not arise. The discrepancies pointed out by the learned counsel for the accused regarding the date of taking sample is not material when it is clearly mentioned in the complaint that the sample was taken from the possession of accused on 9.4.1992 and the spot memo. was also signed by the accused. The report of the PA is admissible in evidence and as per the report of the Public Analyst Ex. PD, the sample taken from the accused shows presence of fungus. Therefore, in my opinion, the oral and documentary evidence led by the prosecution is sufficient for proving the guilt of the accused for the said offence and I, therefore, hold the accused guilty for the commission of offence U/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954, for keeping in his possession 10 kg. Bundi Besan meant for public sale, on 9.4.1992, in the area of Tosham."

Aggrieved by the judgment and order of the learned Chief Judicial Magistrate, Shri Sandeep Kumar filed the first appeal before the Court of Additional Sessions Judge, Bhiwani, who vide judgment dated 17th September, 1996, affirmed the judgment and order of the trial Court and dismissed the appeal, for the various reasons given in paras Nos. 10 to 14 of the said judgment. The said paras are reproduced as under :

"10. The main contention of learned counsel for the appellant was that in this case the prosecution had not placed on record any documentary evidence to show that the Bundi from which the sample was taken, was made homogeneous by the GFI. He contended that the Food Inspector, while taking the sample, is dutybound to make the commodity from which the sample is to be taken homogeneous so that it represents the commodity in all respects. In this connection learned counsel for the accusedappellant cited the case published in 1991 C.L.J. Page 694 while relying upon Bright Law Digest for the year 1991. It appears to be a case decided by Division Bench of Punjab and Haryana High Court. In another case, the Division Bench of the same Hon''ble High Court had held that stirring of milk was to be presumed because it was open to the accused to stir the milk and then sell to the Govt. Food Inspector. It was observed in the case of State of Haryana v. Kirpa Ram decided by the Division Bench of Hon''ble High Court of Punjab and Haryana and published in 1985(2) FAC Page 39 that stirring by the accused could be presumed in such circumstances. ''Besan Bundi'' is not such a commodity which would vary from piece to piece because it is fried in a continuous process in the various lots of sufficient quantity. In these circumstances, even if we assume for the sake of argument that there was no mixing etc. (which fact does stand proved), the Bundi cannot be said to be not the representative sample of the Bundi being sold by the accused.

On facts also, there is no force in this argument. The complaint says that Bundi Bessan prepared from Vanaspati was purchased after mixing the whole contents properly and the same being made uniform for analysis. This complaint is Ex.PE and the suggestion to the Food Inspector has not been given that this allegation in the complaint Ex.PE with regard to mixing was not correct. The accused having not challenged at all this part in the statement of the GFI, he is precluded from saying that the Bundi was not mixed before taking the sample.

Another argument advanced by the learned counsel for the accused was that the GFI was not proper authority to institute a complaint against the accused. In this connection, learned counsel for the accusedappellant relied upon the case published in 1993(2) RCR page 414 which is a decision relied upon on the case published in 1986(2) RCR page 569. In that case, the notification of appointment of the Good Inspector was to be held to be ultra vires of Section 20 of the Act. In the present case, the Food Inspector vide complaint Ex.PE has alleged that he has been authorised to institute the prosecution under this Act vide Haryana Govt. Health Department Notification No. 22744HDII/77/12371, dated 9.6.1977. Learned counsel for the accused could not show me any defect in any such notification referred to in the complaint Ex.PE. It was observed in the case of State of Kerala v. V.P. Enadeen, AIR 1971 (Kerala) page 193 (Full Bench), that when a Food Inspector asserts in the complaint that he was duly appointed Food Inspector under Govt. Notification, the court must take judicial notice of the fact. Taking into consideration the ratio of this authority to its logical end, if a Food Inspector alleges that he is appointed as Food Inspector and has been authorised to initiate the prosecution, he has to be believed. I, therefore, find that Food Inspector Abhey Ram Nehra is duly appointed Food Inspector and has authority to initiate prosecution against the accused. The authority cited by the learned counsel for the accusedappellant is of no avail to him.

Last but not the least, learned counsel for the accused cited the case of Parbhu Dayal Aggarwal v. State of Orissa, 1994(3) CCR page 1969, and argued that the report of the Public Analyst has to be forwarded to the accused telling him that he had a right to get the reanalysis of the sample done from the Central Food Laboratory. He argued that in this case the compliance of the provisions of Section 13(2) was not done as the time is essence of the case. I do not see any force at all in this argument. The report of the Public Analyst is dated 19.5.1992 vide Ex.PD. The copy of the said report was sent by the Local Health Authority to the accused by registered post and the acknowledgement of the same is also on record. There is no application by the accused for reanalysis of the Bundi by the Central Food Laboratory. As the accused did not choose to get the reanalysis done through the Central Food Laboratory, he cannot turn around and say that the opportunity was not given to him. To my mind, the accused has himself not availed the chance of retesting of his own free will. The compliance on the part of the Local Health Authority and the Food Inspector was complete.

During the course of arguments, learned counsel for the accused also referred to the application of the accused for leading additional evidence with the request that P.K. Nayyar, Public Analyst, Haryana, Karnal, be allowed to be summoned as according to the accusedappellant this Public Analyst had admitted in some other case at Hansi on 20.12.1995 that he had no power to analyse the sample. When that sample was submitted to the Public Analyst, when was it analysed and when the report was given, were the facts most material in this case. Shri Nayyar might not have powers on particular date, but it cannot be said that he had no power when he analysed the present sample and submitted his report Ex.PD in this case. Perusal of this report Ex.PD says that there is a definite assertion by Shri Prem Kumar Nayyar that he is a duly appointed Public Analyst under provisions of Prevention of Food Adulteration Act, 1954. With this definite assertion by him in the report Ex. PD, it has to be presumed that he was a duly appointed Public Analyst for the analysis of the sample of Besan Bundi in this case. The application, which is delayed one and has been filed only on 8.8.1996, when the appeal was to be heard, appears to be a device to delay the final decision of the case. One has to remember that the sample in this case was taken on 9.4.1992. Filing of this application for summoning of the Public Analyst cannot be said to be bona fide at this stage when such application for summoning of the Public Analyst is made at such a belated stage for the purpose of vexation or defeating the ends of justice. The request can be declined in view of the ratio of the case AIR 1970 SC page 366. I, therefore, reject this application."

Still not satisfied with the decision of both the Courts, Shri Sandeep Kumar has filed the present revision petition, which I am disposing of with the assistance rendered by Shri Ravinder Kumar Chopra, Advocate, appearing on behalf of the petitioner and Shri S.S. Pattar, AAG, Haryana, for the State.

It was submitted by the learned counsel for the petitioner that the seized contents were Bundi and no standard of quality or purity of Bundi sweet has been prescribed under the Act and the Rules and in these circumstances the alleged offence will not come within the purview of Section 2(i)(ia)(e) to (i) and (m) of the Act and in support of his contention learned counsel for the petitioner relied upon an authority of this Court reported as Mohinder Pal v. The State of Punjab, 1986(2) RCR 291. This was an authority where the sample of Badana sweet was found adulterated by the Public Analyst and it was argued before the learned Single Judge that no standard of quality or purity has been prescribed under the Act or the Rules and, therefore, the petitioner could not be convicted and sentenced under Section 16(1)(a)(i) of the Act.

On the contrary it was submitted by the learned counsel appearing on behalf of the State that the facts of the case cited at the bar are not relevant in this case because fungus was present in the sample and the contents of the sample were injurious to health, and, therefore, it will still be an adulteration within the meaning of the Act and the conviction has been rightly recorded.

After considering the rival contentions of the parties, this Court is of the opinion that the present petition is liable to be dismissed. Before I further proceed in the matter, it may be stated that at no point of time the petitioner had ever attacked the judgments of the Courts below on the plea that there is no standard prescribed for quality and purity for Bundi. This was not pleaded before the lower appellate Court nor there is any mention in this respect in the Grounds of Revision. This Court is of the opinion that the submissions raised by the learned counsel for the petitioner are devoid of any force. Section 2(ia) of the Act defines "adulterated" and the definition of "adulterated" can be quoted as follows :

"2. xx xx xx xx xx

(ia) "adulterated" an article of food shall be deemed to be adulterated

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 insectinfested or is otherwise unfit for human consumption;

(g) if the article is obtained from a diseased animal;

(h) if the article contains any poisonous or other ingredient which renders it injurious to health;

(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;

(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;

(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health :

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this subclause.

Explanation Where two or more articles of primary food are mixed together and the resultant article of food

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause."

A reading of the above provision would show that an article of food can be held ''adulterated'' in two manners. Firstly, if the article sold by the 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. The article of food shall still deemed to be adulterated if it contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof. Thus there are many ways from which it can be adjudged that a particular article has become unfit for human consumption, which would come within the definition of "adulterated" within the meaning of Section 2(ia) of the Act. It is equally true that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. Even if for an article of food no standard with regard to quality or purity has been prescribed in the definition of "adulterated" under the Act, yet that article of food will be considered as adulterated if it is injurious to health. For Bundi and Badana no yardstick of quality or purity of the article has been prescribed. But for the Besin, which is the main essential ingredient to prepare Bundi or Badana, the standard has been laid down. Still in the opinion of this Court, Bundi or Badana has to satisfy the test that it was not injurious to health. In the present case, a purchaser is not expected to purchase Bundi or Badana, which is totally infected with fungus, which is prima facie injurious to health. This aspect of the case was not considered by the learned Single Judge in Mohinder Pal''s case (supra). It is the categorical stand of the State that fungus was found in the entire sample, which was received by the Public Analyst. Since it was injurious to health of an individual, hence it was declared as adulterated.

Learned counsel for the petitioner has also relied upon Satish Kumar v. State of Haryana, 1990(1) RCR 258, and a judgment dated 23rd March, 1993 delivered by a learned Single Judge of this Court in Raj Kumar v. U.T. Chandigarh, Criminal Misc. No. 8619M of 1992. Both these citations are not applicable to the facts in hand. In Raj Kumar''s case (supra) the sample was of Amchoor, for which there was no standard of quality or purity prescribed and the Public Analyst had not declared the product to be injurious to health. Simply because grit was found in the Amchoor it was not adjudged to be adulterated and the petitioner in that case was not held guilty of the offence. The facts of the case Satish Kumar v. State of Haryana (supra) are totally different. Present is a case where the Bundi was found to be injurious to the health, being infected with fungus and as such it could be safely held to be an adulterated food, the sale of which is totally prohibited under the provisions of the Act, which lays down that no person shall himself or by any other person on his behalf, import into India or manufacture for sale, store or sell or distribute any article of food which is adulterated or misbranded. The petitioner in these circumstances cannot take the advantage of clause (m) of Section 2(ia) of the Act.

Faced with this difficulty, learned counsel for the petitioner then submitted that serious prejudice has been caused to the petitioner when he was not allowed the opportunity for reanalysis of the sample. According to the learned counsel, the sample was taken on 9th April, 1992 and it was received by the Public Analyst on 17th April, 1992 and the report of the Public Analyst was received by the accused on 29th July, 1992 and in these circumstances more than 21/2 months had lapsed in receiving the report of the Public Analyst, which has caused serious prejudice to the petitioner. This argument is devoid of any merit. Subsection (2) of Section 13 of the Act gives right to the accused for reanalysis of the sample. A reading of this subsection would show that on receipt of intimation, the accused has been given the discretion to make an application to the Court within ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. There was no move in this regard from the said of the petitioner before the Magistrate. When there is a remedy available under the Act, it does not lie in the mouth to say that the petitioner suffered prejudice because there was delay in launching the prosecution.

Then it was submitted by the learned counsel for the petitioner that if this Court is inclined to dismiss the petition, then in that eventuality, the petitioner should be extended the benefit of probation. This argument is against the statute. Section 20A of the Act clearly lays down that nothing contained in the Probation of Offenders Act, 1958 or Section 360 of the Code of Criminal Procedure, 1973 shall apply to a person convicted of an offence under this Act unless that person is under 18 years of age. No doubt the object of the law is not only to punish the offender, but also to reclaim him but the application of the provisions of Probation of Offenders'' Act have been made inactive for a convict under the Prevention of Food Adulteration Act, 1954. No leniency can be shown towards a person whose antisocial activities have put the society in imperil. Such like criminals are unlikely to be dissuaded by the probationary process. This aspect of the case has also been considered by the learned Chief Judicial Magistrate, who rightly came to the conclusion that the evil of adulteration is common in our society. It has become a health hazard. To check such type of offences, the Legislature has also provided the minimum sentence under the provision of the Prevention of Food Adulteration Act. It has been held in Sri Krishan Gopal Sharma and another v. Government of NCT of Delhi, 1996(2) RCR (Crl.) 591 : JT 1996(5) SC 102, that the food adulteration cases should be dealt with deterrently, once it is established that a person is found indulging in adulterated/spurious food, which is found injurious to health. Thus, it cannot be said that the sentence awarded to the petitioner was excessive.

Resultantly, this Court is of the considered opinion that there is no merit in this revision petition, which is hereby dismissed.

Intimation be sent to the Chief Judicial Magistrate, Bhiwani, about the dismissal of the petition.