State of Haryana vs Nand Lal

A.P. Chowdhri, J.

Nand Lal (now 54) was convicted by the Chief Judicial Magistrate, Sonepat, under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as `the Act'') and sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000/ in default of payment of which he was further sentenced to rigorous imprisonment for six months. Aggrieved by the conviction and sentence, Nand Lal preferred an appeal, which was allowed by the learned Additional Sessions Judge, Sonepat, by order dated December 2, 1982. The present appeal has been filed by the State of Haryana against the said acquittal.

Briefly stated, the prosecution case is that Shri Balwan Singh, Govt. Food Inspector, PW1, alongwith Dr. Amolak Singh PW2 found the accused in possession of 2 Kgs of curd of unindicated milk contained in an earthen pot at his shop on Bahalgarh Adda on G.T. Road, Sonepat on 2841978. The Inspector served notice Exhibit PA in formVI and purchased 600 grams of the said curd from the accused on payment of Rs. 1.80 paise, against receipt, for analysis. He divided the sample into three parts and sealed the three bottles after adding drops of formaline in accordance with the procedure laid down in the Act and the Rules. Spot Memo, Exhibit PC was prepared. One sample bottle along with Memo. in Form VII was sent by the Food Inspector to the Public Analyst, Haryana, Chandigarh, through railway parcel. The remaining two were deposited with the Local Health Authority. A copy of the Memo. in Form VII along with specimen seal used was also sent by the Food inspector to the Public Analyst through registered post. The Public Analyst vide his report Exhibit PD found the sample to contain milk fact 2.0 per cent and milk solids not fat 14.1 per cent. On receipt of the report, a complaint was lodged in the court of the Chief Judicial Magistrate. The Local Health Authority sent a copy of the report to the accused through registered post to inform him that if he so wished, he may have the other sample sent to the Central Food Laboratory, Ghaziabad.

At the trial, the prosecution put forward Shri Balwan Singh, Food Inspector, and Dr. Amolak Singh as the main witnesses.

The plea of the accused in his statement under section 313 of the Code of Criminal Procedure was one of denial. He stated that he was running a shop of selling Pakoras and Samosas and the sample taken from him was of chillies. He examined Anoop Singh DW 1 and Kishori Lal PW 2 in defence. Anoop Singh stated that the sample taken was of skimmed milk and it was duly written on the Khokha in which the accused was carrying on his business and that the milk and curd used there were of skimmed milk. Kishori Lal stated that the sample taken was of curd prepared from skimmed milk (Separata).

The learned Chief Judicial Magistrate accepted the testimony of the prosecution, rejected the plea of the accused and accordingly convicted and sentenced him. The appeal against conviction was, however, allowed by the learned Additional Sessions Judge, as already stated.

The learned Additional Sessions Judge acquitted the accused mainly on the following points :

(i) Noncompliance of section 10(7) of the Act relating to calling one or more persons to be present at the time when a sample is taken.

(ii) Failure of the Food Inspector to make the necessary enquiry required under Rule 9(f) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as `the Rules'').

(iii) Noncompliance of section 13(2) of the Act requiring the Local Health Authority to notify to the accused the result of the analysis and informing him that if it is so desired, he may make an application to the Court within a period of 10 days to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory; and

(iv) noncomplianee of Rule 17 of the Rules requiring the sealed container to be sent in a sealed packet to the Public Analyst.

The contention of Sh. R.K. Gupta, learned Assistant Advocate General, Haryana, is that none of the provisions, the alleged noncompliance of which has resulted in acquittal, is mandatory in character and there was nothing to show that noncompliance of those provisions had caused any prejudice to the accused. According to Shri Gupta, there was ample material on record to show that the various provisions had been duly complied with and the lower appellate Court had thus fallen into a grave error in interfering with the conviction and sentence recorded by the trial Court.

The contention of Shri Bipan Ghai, learned counsel for the accused on the other hand, is that the various provisions were mandatory in character and the lower appellate Court had rightly held that noncompliance thereof resulted in vitiating the conviction.

With regard to the first point, the material on record is that the Food Inspector was accompanied by Dr. Amolak Singh PW2. Dr. Amolak Singh is Deputy Chief Medical Officer. He is a ClassI Officer and is neither a colleague nor a subordinate of the Food Inspector. Both the witnesses put forward by the prosecution deposed about the efforts having been made to join an independent witness but none agreed to do so. It is a matter of everyday experience that people in general are averse to getting themselves Involved in matters relating to the Courts for obvious reasons. Dr. Amolak Singh had, on the other hand, no reason to toe the line of the Food Inspector. He was a responsible officer in his own right. A learned Single Judge of this Court in Manohar Lal v. State of Punjab, 1986(2) Recent Criminal Reports 421 : 1987(1) FAC 353 held that where the Government Food Inspector took along with him a doctor who was neither his subordinate nor his colleague, it could not be said that section10(7) of the Act had not been complied with or at any rate substantially complied with. We endorse the view taken by the learned Single Judge.

Coming to the second point, it may be stated that Rule 9 of the Rules lays down duties of the Food Inspector. Clause (f) of the said Rule is to the effect that the Food Inspector shall make such enquiries as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act or the Rules framed thereunder. The contention of Shri Bipan Ghai, learned counsel for the accused is that the Food Inspector failed to make the requisite enquiries with regard to the kind of milk, whether it was buffalo milk or cow milk or skimmed milk etc. The further contention is that if such enquiries had been made, the accused would have disclosed that the curd in question was of skimmed milk. The failure of the Food Inspector thus, according to the learned counsel, in making the enquiries, deprived the accused of explaining the kind of milk from which the curd had been prepared. Reference was made by the learned counsel to Ashiq v. The State, 1991(2) FAC 51 for the proposition that if the Food Inspector does not make any enquiry, there can be no question of raising a presumption referred to in the Article of Schedule `B'' that it was an unindicated milk or curd, as the case may be and was, therefore, presumed to be of buffalo milk.

After careful consideration, we do not find any substance in this contention. Balwan Singh, Food Inspector PW1 stated that no signboard was displayed on the premises in question with regard to the kind of milk or curd. He had enquired from the accused and he was told by him that he purchased milk from the drum carriers and he did not know about the kind of milk. In view of the above statement, it is factually wrong to contend that no enquiry had been made by the Food Inspector. Confronted with this situation, learned counsel contended that the above statement of the Food Inspector did not deserve acceptance as no contemporaneous document was prepared to show that such an enquiry was in fact made. The statement of the Food Inspector with regard to the enquiry made by him and the answer given by the accused is fully corroborated by the fact that in the complaint itself the sample of curd in question was described as curd of unindicated milk. In the decision relied on by Shri Bipan Ghai, a learned Single Judge of Allahabad High Court referred to an earlier decision of the same High Court in Hari Krishana v. State, 1980(1) FAC 452, relating to the case of curd. It was observed therein that under Rule 9 the Food Inspector had to make necessary enquiries from the vendor. It was further observed that if on making such enquiries the vender does not make any disclosure, only then the question of raising a presumption under the above said article of Schedule `B'' of the Rules would arise. In the facts of the present case, however, the Food Inspector did make an enquiry and the vendor did not know the class of milk used for making curd. It is not, therefore, a case in which the presumption of the milk being unindicated cannot be raised.

With regard to the noncompliance of section 13(2) of the Act, it may be pointed out that the accused nowhere stated that he did not receive the requisite notice. Dr. Baldev Dutta, Deputy CMD, Sonepat, PW3, produced the original letter Exhibit PF sent by registered post vide postal receipt Exhibit PG bearing the signature of Dr. Amolak Singh, Local Health Authority on June 19, 1988. He had been working with Dr. Amolak Singh and he identified signatures of Dr. Amolak Singh on the forwarding letter. As the report was sent with the forwarding letter Exhibit PF by registered post, there is no manner of doubt that it was received by the addressee, namely, the accused. Section 13(2) was, therefore, complied with.

With regard to noncompliance of Rule 17, the contention of Shri Bipan Ghai is firstly that Rule 17 is mandatory, He relied on Gian Chand v. The State of Haryana, 1982 Chandigarh Criminal Cases 69 (HC) for the contention that it was held by a learned Single Judge of this Court that Rule 17 of the Rules was mandatory. The contention of learned AAG, on the other hand is that Rule 17 is merely directory and there was material on record to show that the rule had been complied with. Learned AAG invited our attention to the report Exhibit PD of the Public Analyst. Inter alia, it is stated in the report dated May 19, 1978, that the seal affixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. This corroborates the statement of the Food Inspector that one part of the sample had been scaled according to the procedure and had been sent by railway parcel. The statement of the Food Inspector was not subjected to crossexamination with regard to sealing of the packet. A perusal of the decision in Gian Chand''s case (supra) shows that in fact the case related to compliance or otherwise of Rule 18 of the Rules. Even though there is a mention of Rule 17 as well, but there is neither any factual basis disclosed nor is there any discussion as to the mandatory nature of Rule 17 or otherwise. On the other hand, the question as to whether Rule 17 was mandatory or directory has been very lucidly examined by a Division Bench of Kerala High Court in Kunhamu v. Food Inspector, 1989(2) PAC 51. The learned Judges held that though the provision in Rule 17 is mandatory in the sense that the Food Inspector is required to observe the same, it is not mandatory in the strict sense of the expression in that, the failure to observe Rule 17 of the Rules cannot lead to acquittal without the accused showing that such failure has resulted in prejudice to him. We are in respectful agreement with the reasoning and the conclusion of the learned Judges of the Division Bench.

A further difficulty in allowing the appeal, however, is that the test of substantial and compelling reasons for accepting the appeal has to be satisfied generally speaking. (See Shivaji Sahebrao Bobade and another v. State of Maharashtra, AIR 1973 SC 2622). We would have taken the view expressed above had the matter come before us in the first instance, but there are obvious selfimposed limitations in considering an appeal against acquittal. The sample in this case was taken as far back as April 28, 1978. Having regard to the facts and circumstances of the present case, and in the absence of substantial and compelling reasons, we are not inclined to interfere in the order passed by the learned trial Court. For these reasons, the appeal fails and the same is dismissed.