Sat Pal vs State of Haryana

V.S. Aggarwal, J.

The present revision petition has been filed by Sat Pal challenging the judgment of the learned Additional Sessions Judge, Bhiwani dated 7.12.1987 and that of the learned Chief Judicial Magistrate, Bhiwani dated 14.8.1987/19.8.1987. The learned trialcourt had held the petitioner guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. He was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 3,000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for a period of six months. He had preferred an appeal which was dismissed but the sentence was reduced to six months rigorous imprisonment and the fine was reduced to Rs. 1,000/.

The relevant facts are that on 31.12.1982 Food Inspector Chand Ram accompanied by Dr. G.S. Narula visited the business premises of the petitioner. The Food Inspector disclosed his identity and served a notice in Form VI to the petitioner. Wheat flour was purchased from the petitioner on payment of Rs. 1.20 against a receipt. The wheat flour purchased was stirred and thereafter placed into three dry and clean bottles. The bottles were labelled and securely fastened in accordance with the procedure. The paper slip with the signatures of the Local Health Authority was pasted. The signatures of the petitioner were taken on the sample and affixed in such a manner that paper slip and wrapper carried part of the signatures. The papers were further secured by means of a strong thread. It was fastened on the paper cover by means of a sealing wax bearing the seal impression of Dr. Narula. The sample was seized in the presence of Roop Singh besides Dr. Narula. One sealed bottle was sent to the Public Analyst. The other two bottles were handed over to the Local Health Authority with seals intact alongwith two copies of the memo. A copy of the memo and specimen impression of the seal were sent to the Public Analyst separately. Report was received. It was found to have ash insoluble in dil. HCl 0.2% against the maximum prescribed standard of 0.15% and grit 0.1%. The complaint was filed against the petitioner.

The learned trial court on appraisal of the evidence held that procedure prescribed under the law had been followed. There was no inordinate delay to cause prejudice to the petitioner in analysing the sample. With these findings believing the version of the prosecution, the petitioner was held guilty of the offence already mentioned above. An appeal was filed which was dismissed by the learned Additional Sessions Judge. Hence, the present revision petition.

Learned counsel for the petitioner in the first instance urged that the wheat flour so seized was not meant for sale and, therefore, in the facts of the case, the trial Court as well as the learned Additional Sessions Judge were in error. It has already been noted above that the learned trial Court held that the wheat flour was sold by the petitioner. In fact such a plea was never raised before the trial Court so specifically. The first Appellate court has rejected this contention. Reliance in this regard was placed on the well known decision in the case of Nirmal Kumar and another v. State, 1987 Criminal Law Journal 46. The said finding so arrived at is based on the material on the record. This Court would be slow to interfere unless the findings are perverse, absurd or there is total miscarriage of justice. It is not so in the present case. This contention, therefore, must fail.

Confronted with the position, the learned counsel highlighted the fact that the adulteration found is of negligible nature and since there can be a mistake, the petitioner is entitled to an acquittal. He had drawn the attention of the Court towards the decision of the Supreme Court in the case of Nortan Mal v. State of Rajasthan, 1995(3) Recent Criminal Reports 311. In the cited case the sample of chilly had been taken. It contained total ash excess of .38% which is about 300th part of the substance. It was held that the adulteration was marginal. There was a possibility of error of judgment of the analysis. The conviction accordingly was set aside. This decision of the Supreme Court was relied upon by this Court in the case of Roop Chand v. State of Haryana, 1997(3) Recent Criminal Reports 515 . The court concluded that since the extent of adulteration was marginal and there was possibility of there being an error, therefore, the conviction as such was set aside and the complaint was quashed.

While reverting back to the facts of the case, it is clear that the same would not come to the rescue of the petitioner. This is for the reason that as already pointed out above the ash insoluble in dil. HCl 0.2% against the maximum prescribed standard of 0.15% and grit 0.1%. This cannot be described to be marginal and consequently when the margin is more than 25% of the limit, there is no hesitation in concluding that the petitioner cannot take advantage of the above said cases.

Faced with this situation the learned counsel urged that the incident took place 16 years ago and, therefore, it would be improper to direct the petitioner to undergo imprisonment. He relied upon the decision in the case of Braham Dass v. State of Himachal Pradesh, 1988(2) Recent Criminal Reports 184 . In the cited case the occurrence had taken place 8 years back. The petitioner had undergone a part of the sentence. The Supreme Court had reduced the sentence to the one already undergone. The said view was accepted by this Court in the case of Mahabir v. State of Haryana, 1997(3) Recent Criminal Reports 649 . The milk was found to be adulterated. The matter was 14 years old and reliance was placed on the decision of the Supreme Court in the case of Braham Dass (supra). The law has started taking a shape with the decision rendered by the Supreme Court in the case of N. Sukumaran Nair v. Food Inspector, Mavelikara, 1998(4) RCR(Crl.) 248 : 1997(9) Supreme Court Cases 101 . A similar argument was advanced. Accused therein had been sentenced to 6 months simple imprisonment. Since the matter was old the Supreme Court imposed a fine and directed that intimation be given to the appropriate Government. The State Government should formalise the matter by passing an order under Section 433(d) of the Code of Criminal Procedure. The relevant extract of the judgment reads :

"The offence took place in the year 1984. The appellant has been awarded six months'' simple imprisonment and has also been ordered to pay a fine of Rs. 1000/. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial court a sum of Rs. 6000/ as fine in commutation of the sentence of six months'' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."

It would be appropriate in the facts of the present case to pass a similar order. Herein also the incident took place almost 16 years ago. The appropriate Government is empowered to commute the sentence. In the present case the petitioner has already undergone a part of the sentence. The Court, therefore, feels that it is an appropriate case for commutation of sentence where 16 years have gone by. It is directed that petitioner will deposits in the trial Court a sum of Rs. 5000/ as fine for commutation of sentence within 3 months from today. If earlier the fine has been deposited, the same shall be adjusted. He shall intimate to the appropriate Government that the fine has been deposited. On deposit of the fine, the State Government shall formalise the matter by passing an order under clause (c) of Section 433 Code of Criminal Procedure.

With this end result, the revision petition is disposed of.